Human Rights in Ukraine - 2005: VII: Freedom of Expression

According to information from the National Television and Radio Broadcasting Council of Ukraine, as of 31 December 2005 in Ukraine  there were 1268 television and radio companies (hereafter TRC), of which 647 were television companies, and 524 radio, with a further 97 both television and radio broadcasting.  Ukraine has 14 nationwide television channels and 12 radio stations broadcasting throughout the country.  There are also 783 cable networks used by 4.7 million subscribers (with the overall estimated audience being over 14.1 million viewers).[1]

As of 13 October 2005 , the National Television and Radio Broadcasting Council reports that there were 22,794 periodical publications, of which 9,948 were on national, regional or foreign distribution, while 12,846 were local.  Of the 9,948 print media outlets on nationwide circulation, there were 3809 newspapers, 4626 journals, 381 bulletins, 77 anthologies, 816 annuals, 185 calendars, 54 digests. The overwhelming majority of print outlets on local distribution are newspapers, with 10,740 titles, with 2106 journals and other similar publications[2].

1.  REVIEW OF NEW LEGISLATION[3]

Albert Camus once wrote “when the press is free, it can be either good or bad, however when the press is controlled, it can only be bad”.  This position, formulated half a century ago, remains relevant to the present day.

Precisely for this reason, in evaluating amendments to legislation in the field of freedom of expression and the mass media, we should make our assessments based on the criterion of whether the amendments introduced increase the level of State control over the activities of the mass media or restrict freedom of expression.

The main trends as regards legal regulation of the activities of the mass media and freedom of information in Ukraine which could be observed in 2005 were: inconsistency and unevenness in legislative policy, the lack of coordination of new laws with current legislation, the passing of laws and other normative legal acts which weakened pressure on the activities of the mass media, only to then, after some time, adopt legislative acts with entirely opposite, even reactionary, content.  The main reasons for this would appear to have been the absence of a single policy in the sphere of legislative regulation of the activities of the mass media, a struggle between different political factions which ntensified on the eve of the parliamentary elections, as well as permanent conflict arising between the legislative and executive branches of power.

The first positive change in 2005 related to legislative regulation of the media, with a new version of the Law “On the National Television and Radio Broadcasting Council of Ukraine” being passed on 3 March. 

The law strengthens guarantees of independence of this regulatory body in the area of television and radio broadcasting.  The procedure for forming this part of the National Television and Radio Broadcasting Council of Ukraine, the members of whom are appointed by the Verkhovna Rada of Ukraine, became more democratic.  As a result of the amendments introduced, civic institutions can take a more active role in appointing members of the National Council. The Law also significantly strengthens the norms designed to safeguard openness in its activity.

However, at the same time, certain provisions of the Law cannot be called progressive. For example, the Law does not allow for representatives of the mass media to put forward proposals as to candidates to be those members (or one member) of the National Council that are appointed by the President of Ukraine.  It is also true, as one media institute put it, that “… the norm of the Law in accordance with which, after reviewing the report of the National Television and Radio Broadcasting Council, the Verkhovna Rada or the President will have the right to dismiss its panel of members, seriously jeopardizes the possibility of the National Council remaining independent … such a norm does not comply with European standards”..

Among the amendments which made life easier for television and radio companies was the removal of the right of the National Television and Radio Broadcasting Council  (NTRBC) to temporarily (for a period of up to two months) suspend the licences of television or radio companies (Article 32 of the new version of the Law and Article 21 of the previous version), as well as normative regulation of the procedure for review of certain issues in the NTRBC  which had been up till then effectively non-existent.

However the adoption of this law without the appropriate amendments being introduced to the Law “On television and radio broadcasting” led to a clash between individual norms of these laws. In particular, the right of National Television and Radio Broadcasting Council to temporarily suspend broadcasting licences was abolished, yet according to Article 5 of the Law “On television and radio broadcasting”  the National Council still retained this right. It was only in autumn after the passing of amendments to the Law “On television and radio broadcasting” that these clashes were eliminated.

A step backwards as far as guaranteeing  freedom of information was concerned was the passing by the Ministry of Transport and Communications of the Order "On approving the Procedure for carrying out State registration of electronic information resources”  (№ 153  from 27 April 2005). This Order fails to comply with international standards in the area of freedom of information and was an attempt by the regime to impose control over Internet resources, in particular, Internet publications through the introduction of compulsory state registration of all information resources of the Ukrainian segment of the Internet.  However, thanks to the active position taken by the public and in the first instance representatives of the mass media, the Order was revoked by Order of the Ministry of Transport and Communications № 584 from 26 September 2005

In November and December 2005, the Verkhovna Rada passed a number of Laws in the area of freedom of expression and the Mass Media, namely: the Law “On access to court rulings” from 22.12.2005; the Law “On introducing amendments to the Civil Code of Ukraine in connection with the right to information” from 22.12.2005; the Law “On introducing amendments to Article 9 of the Law of Ukraine “On the procedure for the coverage by the mass media of the activities of state executive bodies and bodies of local self-government in Ukraine” from 15.12.2005, as well as the Law of Ukraine “On introducing amendments to some legislative acts of Ukraine aimed at enabling citizens to exercise their electoral rights, ensuring freedom of political debate, an unbiased attitude from the mass media to candidates for the office of Deputy, to parties (blocs) taking part in the election process” from 17.11.2005 which is discussed in the unit on the electoral process.  

The Law passed on 22.12.2005  “On access to court rulings” (which comes into force from 1 June 2006) is a significant step forward in the process of improving legislation aimed at safeguarding access of the public to information. This Law is in keeping with international standards, is logically constructed and considerably simplifies the procedure for access to court rulings through the creation of a Single State Register of court.

In order to resolve the problem of organizing coverage of the work of the Verkhovna Rada by the audiovisual forms of the mass media, on 15 December 2005 the Verkhovna Rada passed the Law “On introducing amendments to Article 9 of the Law of Ukraine “On the procedure for the coverage by the mass media of the activities of state executive bodies and bodies of local self-government in Ukraine”  The amendments which were made to Article 9 of the Law related to the period of legal force of the resolution which determines the procedure for coverage of the activities of the Verkhovna Rada. For example, where previously the procedure and forms of compulsory coverage of the activities of the Verkhovna Rada by the audiovisual forms of the mass media (fulfilling a State order) were defined by a separate Resolution of the Verkhovna Rada of Ukraine for each current session of the Verkhovna Rada, now in accordance with the amendments introduced, a separate resolution is taken for the whole period of office of the latest intake of the Verkhovna Rada. 

On 12 December 2005 the Verkhovna Rada passed the Law “On introducing amendments to the Civil Code of Ukraine in connection with the right to information”.  The amendments made to the provisions of Articles 23, 277, 278, 296, 301 and 302 of the Civil Code of Ukraine were brought about by the need for a clearer definition of certain provisions of the Law in order to avoid more than one possible interpretation in practical application, as well as by the need to bring the terminology of the Code into line with the terminology of the Constitution and current legislation concerning information.

 In particular, the wording of Article 277 was refined. The previous version of Part 3 of Article 277 had the incorrect statement: “it is considered that negative information disseminated about an individual is untruthful”. Precisely in order to avoid ambiguity in interpretation of this norm by the courts, Part 3 of Article 277 was altered in the next version to read: “negative information disseminated about an individual shall be considered untruthful unless the individual who disseminated the information provides proof to the contrary”.  This has made the norm clearer, better defined and able to be applied.

From Article 302 of the Civil Code of Ukraine the provision has been removed which read: “… it is also not permitted to collect information which is a State secret or the confidential information of a legal entity”. In the opinion of the authors of this Law, the said norm violated the constitutional right to freely collect, store, use and disseminate information.  They also stressed that “the procedure for treatment of information on restricted access is already regulated by legislation”, and for this reason suggested that the norm be removed from Article 302 of the Civil Code of Ukraine

The no less strange ban on using the first and last names of people without their consent, or in the event of their having died, the consent of their relatives, was cancelled. The Law also stipulated that in publicizing information from official sources, a person must make the appropriate reference to this source, In the event of this information being declared incorrect, the person who had publicized it would accordingly not be held accountable for this.

The adoption, therefore, by the Verkhovna Rada of this law is a positive step for legislative provisions for ensuring freedom of speech in Ukraine. .

Confirmation of the fact that legislative policy related to the regulation of the information activities of the mass media is inconsistent, can be seen in the passing of the new version of the Law “On Television and Radio Broadcasting” from 12.01.2006. This Law, in the opinion of many specialists, will have a negative impact on the development of television and radio broadcasting given its significant flaws. For example, the Director of the Media Law Institute, Taras Shevchenko, considers that:

“The new procedures are not integrated which could lead to a situation where it is impossible to implement even the positive provisions. The rules on registration totally cancel out the provisions regarding the provision of subletting. The Law contains unnecessary doubling up with other laws, norms of the Civil Code, the Criminal Code, while some norms actually show discrepancies”[4]

The UHHRU and the Media Law Institute wrote to the President of Ukraine on 2 February 2006 calling on him to use his power of veto against this law[5], however he did not do so, and the law came into force. UHHRU considers that the main shortcomings of the law are as follows:

-  the law contains a number of definitions which are unclear from a legal point of view, as well as some mutually exclusive provisions, and is, as a whole, not coordinated;

-  it confuses the situation as regards determining who the owners are of television and radio companies (TRC), and places unwarranted limitations on the role of foreign owners in these companies;

-  it considerably broadens the powers of the National Television and Radio Broadcasting Council (NTRBC), removing any kind of control over the latter, as well as removing any role for the President and Parliament in formulating and implementing information policy in the are of television and radio broadcasting;

-  there is no list at all of the rights of TRC journalists;

-  a comprehensive list is not provided of infringements which can lead to sanctions being imposed upon TRC, leaving the NTRBC effectively able to determine what constitute such infringements at its own discretion, on an individual basis;

-  under this Law (Article 6) television and radio companies  “are obliged to provide information about the position officially published through any means of all political factions represented in state executive bodies”.  This violates the principles of independence of the media and freedom of speech, and of identical and objective coverage of events, as well as of equal access of political factions to the mass media. The law also allows for  “motivated” interference by state executive bodies or bodies of local self-government, public associations in the area of professional activity of TRC, this also contravening standards of journalist and media independence;

-  the law considerably extends possible grounds for cancelling the licences of TRC;

This law was effectively created by the NTRBC and once again demonstrates that the body which is to implement a law must not create it. Furthermore, the NTRBC lobbied for itself an extension of their term of office up to 5 years and made the dismissal procedure much more complicated. According to the new law, the NTRBC can be dismissed as a result of a review of the report on their activity if this is voted fro by parliament and at the same time endorsed by the President, which is practically impossible.

However, together with these drawbacks, the law does contain some progressive norms:

-  the procedure for the management of the NTRBC has been improved;

 

-  the licensing procedure, despite certain contradictions, is defined in reasonable detail;

-  owners of media outlets are obliged to adopt editorial charters. 

  Concern has been expressed among journalists and human rights activists about the revised version of Article 182 of the Criminal Code of Ukraine (infringement of the inviolability of private life)[6].  The new version of Article 182,  in comparison with its predecessor, substantially increases the sanction, with the amount payable in fines, in particular, having risen sharply.  Whereas according to the previous version, the amount of the fine could not exceed 50 times the minimum wage before tax, now the fine can be from one hundred to five hundred times the minimum wage before tax. In addition, Article 162 has been supplemented by a part two with the following content: “… those specific activities, carried out by an official, or repeated or having been planned in advance by a group of people, or with the use of technical devices for the illicit interception, destruction, diversion, blocking, leaking or disruption of the established procedure for channelling information which is transmitted through means of communication, in networks of moving (mobile) communication and in other telecommunication networks and via a computer shall be subject to a fine from five hundred to two thousand times the minimum wage before tax, or to restriction of liberty for up to five years, or to deprivation of liberty from three to twelve years with the loss of the right to hold certain posts or to take part in certain activities for a period of up to three years, and with confiscation of property”.

On 20 January 2006, UHHRU addressed an appeal to the President to veto this law.[7] The President placed his veto on the law, and it was later cancelled by the Verkhovna Rada.

Throughout 2005 other legislative acts were passed which had impact on freedom of expression, these being:

-  the Law “On introducing amendments to Article 12 of the Law of Ukraine “On television and radio broadcasting” from 06 September  2005 (increasing the sources of financing for the National Television Company of Ukraine (NTCU), in particular, through advising and sponsorship, whereas previously all funding went directly to the state budget);

-  the Resolution  of the Cabinet of Ministers of Ukraine № 933 „On measures aimed at reforming and developing the Ukrainian national information agency "Ukrinform" during the period 2005-2007”;

-  the Presidential Decree № 1338/2005 from 26 September 2005 “On improving state management in the information sector” (on transferring the function of registering printed media outlets and information agencies to the Ministry of Justice and placing the powers of the National Commission on Strengthening Morals under the State Committee on Television and Radio Broadcasting);

-  Resolution № 1128 from 30 November 2005 “The Issue of state registration of printed forms of the mass media and information agencies as participants in information activity”;

-  Resolution of the Verkhovna Rada № 3075-IV “On approving the Objectives of the National Program for automation of information for 2006-2008”; and others.

  The picture of changes which took place in legislation pertaining to freedom of expression over the year would not be complete without a review of the issue concerning the creation of public (civic) broadcasting.

The main function of the mass media is providing the public with reliable and socially significant information. However, in the view of many academics, the mass media in the 20th century turned into monopolistic organizations which tried not so much to fulfil this main function, but rather to mould public opinion and to manipulate it[8].  We believe that this situation can be improved through the creation of public television. In connection with this James Carren[9] states that despite all odds, public television copes much better with the role of “watchdog of democracy” than that part of the mass media which is owned by private capital.  Doubts are nonetheless expressed fairly often in Western sources as to whether public broadcasting is independent and whether it provides objective coverage of all socially significant events.

At the present time in Ukraine most people are in agreement as regards the need to create public broadcasting. However the discussion has been raging for several years now as to what kind of model of public broadcasting with be the most acceptable for Ukraine. In 2005 the process of debating the concept of creating public broadcasting and drawing up and passing a new version of the Law “On a system of Public Television and Radio Broadcasting for Ukraine” was somewhat fraught.

.  In the program on the activity of the Cabinet of Ministers “Towards the people”, passed by Resolution of the Cabinet of Ministers №115 from 04.02.2005, the government declared one of its main tasks to be the creation of public broadcasting  as an unalienable component of civic society. The President of Ukraine in discussing the issues involved with creating public broadcasting has on several occasions spoken of the need to create public broadcasting as soon as is feasible. The Head of the President’s Secretariat, Oleh Rybachuk has also stressed the importance of this, declaring that “the position of the President of Ukraine and the Cabinet of Ministers is clear and unambiguous – there is a place for public television and radio broadcasting in Ukraine”.  The Head of the Secretariat has also pointed out that the Law “On a system of Public Television and Radio Broadcasting for Ukraine” will play a decisive role in carrying out the national project for public broadcasting and should be passed as soon as is feasible.

On 13 April 2005 the Verkhovna Rada held public hearings entitled “The prospects for the creation of public television and radio broadcasting in Ukraine”.  On the results of these hearings, the Verkhovna Rada passed Resolution № 2684-IV “On the recommendations of parliamentary hearings on “The Prospects for the creation of public television and radio broadcasting in Ukraine” from 21.06.2005.  The Resolution stated that the plan for the new version of the Law of Ukraine “On a system of Public Television and Radio Broadcasting for Ukraine” needed to be treated as urgent. 

The draft law was prepared in consultation with media law specialists and took into account international recommendations on the activities of public television and radio broadcasting. Since the holding of the parliamentary hearings, the Law “On a system of Public Television and Radio Broadcasting for Ukraine” has been considered by Parliament several times, yet it has still not been passed. The result of the last consideration of this Draft Law on 3 November 2005 was the adoption of a resolution to send the Law of Ukraine “On a system of Public Television and Radio Broadcasting for Ukraine” (the new version; Reg. No 7539) back for a repeat second reading.

In accordance with Resolution № 2449-IV passed by the Verkhovna Rada “On the parliamentary hearings “The current position and prospects for the development of State policy in the field of freedom of expression and information” from 03.03.2005, Parliament was planning to also hold hearings on “The current position and prospects for the development of State policy in the field of freedom of expression and information” in November and December, however these did not eventuate.

 

2.  CONCENTRATION OF THE MEDIA AND ENSURING MEDIA PLURALISM

According to unofficial information, the Ukrainian national media is effectively under the control of several individuals. A significant concentration of national, regional and local media outlets in the same hands creates the threat that information will be unvaried and that there will be a lack of truly comprehensive coverage of socially important issues from different points of views. The situation is even worse at the regional and local level where the monopoly of media outlets is the greatest and basically uncontrolled.

  It is virtually impossible to obtain exact information about individuals controlling the mass media. The lack of openness with regard to people really having power over the media is one of the main problems with regard to ensuring media pluralism.

Ukrainian legislation does not take the need for media pluralism into account, relying solely on general anti-monopoly legislation which, in turn, does not allow for the specific features of the television and radio information market.

Legislation, for example, on information agencies, the press and television and radio broadcasting does not stipulate that this information should be openly available.  Moreover, even special regulatory bodies, such as the National Television and Radio Broadcasting Council and the State Committee on Television and Radio Broadcasting do not have objective information in this sphere.  Current legislation does not contain a clear definition of an owner of a media outlet, that is of the individual having actual direct or indirect (through control over other legal entities or individuals) over this media outlet.

  There are, it is true, certain branch restrictions in Ukraine on media concentration. The best example is the Law of Ukraine “On Printed Mass Communication Media (the Press)”, in which Article 10 states:

“An individual or legal entity may not be the founder (co-founder) or control more than 5 percent of such publications. By control in this Law is meant the ability of such a person or entity to use material or financial means to exert an influence on the activity of a printed form of mass information”. 

There are no such provisions in the case of information agencies, television or radio broadcasting.

  Ukrainian legislation provides no regulation at all for so-called cross ownership. There are, for example, no restrictions on a single individual (or entity) at the same time owning national television channels and newspapers. We are unaware of examples in practice where any of the provisions of anti-monopoly legislation have been applied towards the mass media by the Anti-Monopoly Committee of Ukraine.

On 24 January 2006 UHHRU made the first ever attempt in Ukraine to make public information about the owners of the first level of the 10 largest nationwide media outlets.[10]  Any such information had previously been selective. This time it had been checked and was the result of a serious public study. Later the Media Law Institute made public all the founders of the television channel “Inter”, whose owners had been concealing themselves behind offshore companies[11]  UHHRU is intending in 2006 to publish a list of the individuals (/ entities) controlling all Ukrainian national television channels. It is most likely, however, that all these will prove to be offshore companies where it is virtually impossible to ascertain who the founders and owners are.

In its report for 2005, the National Television and Radio Broadcasting Council of Ukraine also indicated a number of first level founders of particular television channels and radio stations which had received licences during 2005.  However this information by the time the report was published already seemed somewhat out of date and it only pertained to the first level owners (the direct founders of the TRC).[12]

Unfortunately the new version of the Law on Television and Radio Broadcasting only confuses the situation further. Firstly, it encourages owners to conceal themselves by prohibiting direct ownership by foreign individuals or entities of Ukrainian television and radio companies. Secondly, it contains a definition of the term “an owner of TRC” which effectively means nothing since the concept of property of a legal entity in the legal sense is not clear.

One should note that the Ukrainian mass media appears fairly free and indeed there are no flagrant threats to pluralism. However the further away from the revolutionary events of 2004 we get, the more clearly one can see the ideological direction of various television channels and radio stations, and an unbalanced coverage of various positions by these same outlets.  One sees cases of manipulation of information more and more, as well as certain events or opinions being ignored by some national media outlets. The number of such cases, for example, rose during the parliamentary electoral campaign. 

 

3.  OBSERVANCE OF THE RIGHTS OF JOURNALISTS AND OF MEDIA OUTLETS

Over the last few years there has been a significant decrease in the number of attacks on journalists, as well as in the administrative pressure placed on the mass media. After central television channels rejected “temnyki”[13], and the authorities in the wake of democratic elections stopped issuing these instructions, the Ukrainian media considerably improved the quality of coverage of public events, with the presentation of the news, in particular, becoming largely balanced.

  However one should note that administrative pressure on the media has remained at the local level, and in places has even increased.[14] Journalists also on occasion mention unofficial pressure on the national media from the highest bodies of power, for example, from the Secretariat of the President.[15]  It takes place through telephone calls from the heads of press centres of the relevant bodies of power with regard to the preparation or broadcasting of a certain program, as well as in limitations on press accreditation, etc. Indeed these incidents are not publicized and are virtually impossible to document, however such cases have been unofficially reported by journalists from various national media outlets.

  One can make conclusions regarding the number of violations of media rights and of journalists on the basis of the monitoring carried out by the Institute of Mass Information.

 

Data on infringements of the rights of journalists and of the media for 2005[16]

 

 

 

 

Despite these positive trends, the Ukrainian media and journalists have confronted another aspect of freedom with administrative pressure being replaced by corruption and broadcasting time on the radio and television being totally up for sale.  This has actually led to a restriction of freedom of speech: some couldn’t get into the news through lack of funds, while others provided only positive information about themselves. All television channels and radio stations without exception, and to a lesser extent newspapers and information agencies, officially or unofficially present in their broadcasts and publications, in particular, in news reports, material that has been commissioned. This material is most often paid for unofficially, and does not comply with the standards of modern journalism. The Ukrainian media and journalists have proved to be entirely unprepared for such a phenomenon, and there are as yet no programs to counter it in society.

 

MURDERS, BEATINGS AND OTHER PHYSICAL VIOLENCE AGAINST JOURNALISTS

In the last two years no cases have been recorded of journalists being murdered in Ukraine. However none of the murders of journalists which happened earlier have been fully investigated and none of the culprits have yet been punished.  In the case involving the murder of Georgy Gongadze, the alleged perpetrators of the crime did end up in court, however the investigation is still not transparent, and there continue to be no answers to a lot of questions, in particular, who ordered the killing. The trial of those accused in the case is still continuing. There are in fact serious fears regarding the level to which the requirements of a fair trial are being observed in this case.

The investigation into Ihor Aleksandrov’s murder has also not progressed very much. At the end of 2005 those accused of carrying out the killing ended up on trial, however the court has still not finished considering the case. Moreover the question of who ordered the murder is also being ignored.  One should note that in May two police officers were sentenced to 6 years deprivation of liberty for falsifying documents in this case.

The investigation into the mysterious death of journalist Volodymyr Yefremov was also held behind closed doors. His family, for example, did not receive access to material of the criminal investigation which was terminated due to the lack of a crime..

Cases involving physical violence against journalists have continued. The following are a few examples.

The editor and founder of “Serdyta gazeta” [“Angry newspaper”], Serhiy Sorokin, was brutally beaten by three unidentified individuals. According to the editor, in the evening of 20 December, a person unknown to him rang the door of the editorial office. When Sorokin opened the door, the first man and two others burst in, and they began beating him.  “They explained very clearly that if I wanted to live, I should shut down the newspaper and not write about the police, the Security Service (SBU) and the Snahovskys.  Or I should write “under protection” and write only about those people they tell me to”, Sorokin explained. The police chased and caught one of the assailants. “But how can I trust the police when the officer asked: “You claim that somebody inflicted these injuries on you?”  Does he seriously think I’d start beating myself around the head with furniture?” - Serhiy Sorokin added.[17]

At night on 12 May 2005 unidentified individuals beat up a reporter and photographer from the Kherson newspaper “Vhoru” [“Upwards”]. Both journalists had arrived at the scene of a news story on the central Suvorov Street, where the state bailiffs had begun taking apart the shop “Columbia” despite the fact that the Supreme Court had prohibited any actions with respect to this property. The photographer was attacked by several people who twisted his arms behind his back and took his video recorder away. They did the same to the reporter, removing his dictaphone.  Later the items were returned, but with the memory card with the recording, the tape of which had, to make their point, been burned.  The editorial team of the publication said that in Kherson the police were not capable of protecting people’s civil rights.[18]

Late in the evening on 28 December a journalist from the newspaper “Nova Kakhovka”, Kostyantin Ivanov, was beaten up and robbed. The assailants told him directly that the attack was connected with his professional activities. However the law enforcement bodies refused to accept that the attack had been due to his work as a journalist and chose to view it as a normally mugging.[19]

Throughout the year many cases were recorded involving intimidation of journalists or members of their families which were directly connected with their journalist activities.

In 2005 two journalists were arrested. One case is worth considering. Volodymyr Lutyev, a journalist from a local newspaper in Yevpatoriya (the Crimea), is accusing of attempted murder of a deputy. The investigation and the court trial have been dragging on for many years, since autumn 2002, and many experts say that this trial is a usual case of political persecution of a journalist for his critical publications on local crime.  He was first arrested at the beginning of November 2002, however following considerable protest he was released on giving a signed undertaking not to leave the city on 3 December 2003. Unexpectedly, on 30 June 2005, the Sevastopol Court changed the preventive measure imposed against the journalist from the “signed undertaking to not abscond” to “detention” and issued a warrant for his arrest. The Sevastopol Appeal Court on 6 July, and later for a second time on 8 November, rejected the application to have the preventive measure changed and to release the journalist.  Their argument was based on an application from the deputy Kotlyarevsky in which the latter stated that Lutyev, by travelling to Kyiv, had infringed the regulations of the signed undertaking, and had also supposedly threatened Andriy Grachov, a former employee of the Department on Fighting Organized Crime (UBOZ) whom Lutyev had allegedly hired as a killer in autumn 2002.

The public, human rights activists and the media sharply condemned these actions by the law enforcement bodies and the courts, while the journalist himself, held in a pre-trial detention centre, declared a hunger strike which he maintained for 47 days. The Human Rights Ombudsperson also stated that there were no grounds for the journalist’s arrest. Yet he was to remain in the detention centre throughout the year.

 

CENSORSHIP

In November 2005 a journalist from one of the biggest national television channels “1 + 1”, Vakhtang Kipiani, left the channel after the suspension with no explanation given of his program “Double evidence”. At first two already prepared programs were not broadcast at the scheduled time, one on the events in Beslan, and the other on the poisoning of President Viktor Yushchenko. A third program was planned on the criminal movement in Kyiv during the 1990s. The journalist considers the suspension of his program as politically motivated censorship.[20]

 

OBSTRUCTION OF JOURNALISTS’ ACTIVITIES

Cases are becoming more frequent of journalists finding their professional activities hindered. This is seen in the deliberate actions of state officials, security guards, etc, aimed at limiting their legitimate rights as journalists to gather information.

Most often this manifests itself in a ban on carrying out filming; demanding a permit for photographing public buildings, etc, when such a permit should not even exist; on not allowing certain journalists to enter certain state institutions; not admitting journalists to press conferences.

A journalist from the largest national television channel “Inter” stated on 4 February that he had not been allowed to attend the first meeting of the new Prime Minister, Yulia Tymoshenko, with the press which had taken place in parliament. According to the news editor of the channel, O. Mustafin, this channel had also been refused accreditation for the visit of President Yushchenko to Strasbourg which took place immediately after his inauguration. However the Head of the President’s Press Service stated that this had been an organizational error which would not reoccur[21].

In Donetsk on 21 December 2005 a court returned a case for a second investigation It was based, as Channel 5 reports, on a suit filed by a journalist from the program “Zakryta zona” [“Closed zone”], Alyona Kochkina, against the security firm which guards Rinat Akhmetov’s firm “Lyuks”. The journalist claims that an employee from the security firm stopped her filming near Akhmetov’s property in Donetsk. Alyona Kochkina’s lawyer insisted on including the video material in the case, this demonstrating that journalists from “Zakryta zona” were secretly watched. The defence also considers that the right to gather material was violated not by one security guard alone, but by the group of employees of the security firm.[22].

Despite the sometimes fairly brazen incidents, law enforcement bodies refuse to launch criminal investigations on the basis of those incidents, in particular under Article 171 of the Criminal Code of Ukraine (obstructing a journalist’s lawful professional activities). As a result of this, just as during 2003 and 2004, throughout 2005 not one person was held criminally liable for such a crime.

 

ACCESS TO OPEN COURT HEARINGS

An issue of conflict in 2005 was the question of press access to court hearings, especially those cases which had had a lot of publicity. The issue arose with regard to the Gongadze case, to the case involving a change in preventive measures for the Head of the Donetsk Regional Council, Boris Kolesnikov, and in many other less prominent cases.  Most often the explanation was the need to “maintain the confidentiality of the investigation” or to protect the rights of the parties to the case.  Judges, in their turn, are concerned about the rights of the parties and the right of the accused to a fair trial.

However in Ukraine, it is often legally dubious actions which are concealed behind such trials which are closed to the press. It is therefore often precisely the presence of the press which can safeguard adherence to the law.

The perpetual controversies arising show that judges do not take special features of cases they are reviewing into account. For example, it is obvious that in high-profile cases the biggest courtroom available should be chosen for the hearing. In addition, each court should have rules for journalist accreditation which, in accordance with Ukrainian legislation, should define in advance the rights and duties of journalists with regard to such court hearings.[23]  However this usually does not happen.

Another related problem is the often unwarranted bans which judges impose on media correspondents using audio or video equipment during court hearings.

On 30 September 2004, for example, a court hearing took place to consider the suit brought by an activist of the campaign  “Pora”, L. V. Yeremicheva against the illegitimate actions of an official of a state executive body, the then head of the Kherson Regional State Administration, S. Dovhan, who was campaigning for one of the candidates in the institute where she was studying.  The case was considered by a judge of the Suvorovsky District Local Court in Kherson, Natalya Viktorivna Hrydina.  Four media outlets from the Kherson area expressed a wish to follow the course of this review of a court case which was important for the political life of the region. During the review of the complaint, the judge refused to allow “the media representatives to be present in the courtroom in their capacity as journalists, allowing them to observe the proceedings as simple individuals”. The judge also prohibited the journalists from using dictaphones.

Another case which had gained publicity in the same region, and which was being followed by correspondents from both print press and television media outlets in the Kherson region, was heard in January 2005 in the Dniprovsky District Local Court in Kherson. During the hearing into a criminal case, Judge Ratushna tried to stop the television reporters using a portable video recorder, and the print press journalists using dictaphones, telling them: “Write it down in your notebook!” The judge was unable to explain her grounds for declaring such a ban (the accused was not against the journalists recording the process).In this case the journalists succeeded in upholding their right of access to information. The media representatives continued to carry out their professional duties, referring to the legislative acts laying down the rights of journalists in court cases.[24].

In response to a formal request for information from the Head of the Kherson City Association of Journalists “Pivden” [“South”], the Secretary of the Plenary of the Supreme Court of Ukraine, I. P. Dombrovsky, stated that the given question would be submitted for the review of the Plenary, while for the moment they should refer to Article 9 of the Law on the court system which states:

“The use in the courtroom of any photographic or filming equipment, the making of any television, video or sound recording using stationary equipment, as well as the live broadcasting of a court hearing, shall be permitted given the consent of the court according to rules and procedure set down in the procedural law”

The procedural law, however, does not clearly define this procedure, barring a regulation stating that those present during a hearing must not pose a disruption.  There is no prohibition on making video or audio recordings of hearings.

 

INFORMATION ABOUT PUBLIC FIGURES AND VALUE JUDGMENTS

Ukrainian legislation provides a fairly clear distinction between the publication of, on the one hand, facts and, on the other, value judgments.  The concept introduced of wider scope for criticism of public figures has strengthened guarantees of freedom of speech. As a result, the number of civil suits brought by public figures against media outlets has significantly decreased, and these suits have ceased to be a method for persecuting media outlets or specific journalists for criticism expressed.

One of the most positive examples of defence of freedom of speech was in the following case.

On 30 December 2005 a judge of the Desnyansky Dstrict Court in Chernihiv issued a judgment in the claim brought by the Head of the Chernihiv City Police Department Eduard Alyokhin against pensioner Mykhailo Koval and the TV company “NTN” (the limited liability TV studio “Sluzhba informatsii” – “Information Service”),  Mykhailo Koval was represented by Oleksandr Trofimov, a lawyer of the Chernihiv Civic Committee for the Protection of Human Rights.

Mr Koval was subjected to torture in a local police station. His case has dragged on for five years and is presently under review in the European Court of Human Rights. At an Amnesty International press conference held in Kyiv on 27 September 2005, an annual report on torture in Ukraine was made public. Mykhailo Koval, who had been invited to take part in the press conference, gave an interview to several national television channels. Police Colonel Eduard Alyokhin, the present Head of the Chernihiv City Police Department, took offence at statements made by M. Koval and brought a suit against him.  Referring to norms of domestic and international legislation, the court explained that according to Article 1 of the UNO Convention against torture, Mr. Koval had had sufficient grounds for considering that he had been a victim of torture.  His words had not contained specific facts, and had therefore been value judgments which excluded the possibility of refuting them or holding the respondent to answer for them. Therefore the court, referring tot the relevant Judgments of the European Court of Human Rights, rejected the claimant’s suit.[25] 

On 20 March 2005 the European Court of Human Rights delivered its Judgment in the Case of the Ukrainian Media Group (the newspaper “Den” – “The Day”) v. Ukraine (Application No. 72713/01) in which it found Ukraine guilty of violating Article 10 of the European Convention on Human Rights by penalizing the newspaper for publishing value judgments about Presidential candidates in 1999. At that time Ukrainian legislation established liability for circulating value judgments also, if there was no possibility of proving whether they were true.

  The case involved two articles relating to the presidential campaign in 1999 which were published in the newspaper “The Day” on 21 August and 14 September 1999. In them the author, a well-known journalist, Tetyana Korobova, make several critical comments about two Ukrainian politicians who were running for the Presidency of Ukraine – Natalya Vitrenko and Petro Symonenko. The articles largely concentrated on agreements supposedly reached between the Administration of President Kuchma with these politicians during the pre-election campaign and criticised them as political figures.

In August 1999 N. Vitrenko and P. Symonenko filed a suit with the court in defence of honour, dignity and reputation.  Both claimed that the information given in the newspaper was untrue. In March 2000 the Minsky District Court in Kyiv ruled that the article about Vitrenko had been untrue and bound the Ukrainian Media Group to pay her 2000 UH in compensation, and to publish rectification of the information in the newspaper. Then in June 2000 the same court partly allowed the claims by P. Symonenko, and ordered the Media Group to pay 1,000 UH compensation and to retract the published information.

The Ukrainian Media Group lodged a claim with the European Court of Human Rights on 12 December 2000. Moreover, the Court rejected a friendly settlement proposal “as it considered that respect for human rights, as defined in the Convention, required the further examination of the case”.  The Court unanimously found that there had been a violation of Article 10 of the European Convention on Human Rights.

“67. The Court observes that the publications contained criticism of the two politicians in strong, polemical, sarcastic language. No doubt the plaintiffs were offended thereby, and may have even been shocked. However, in choosing their profession, they laid themselves open to robust criticism and scrutiny; such is the burden which must be accepted by politicians in a democratic society (paragraphs 40-41 above).”

  The Court ordered Ukraine to pay the Ukrainian Media Group 58,812 EUR in compensation for pecuniary damage, 33 000 EUR in non-pecuniary damages, as well as 5,521.07 EUR for court expenses.

 

PROPORTIONALITY OF PUNISHMENT FOR ABUSE OF FREEDOM OF SPEECH

One of the most widespread means of restricting freedom of speech is by imposing penalties which are clearly not in proportion to the actions committed by the person, nor to the purpose for which the penalty is imposed.

  Previously the most widely used type of such disproportionate punishment was the use of law suits about media outlets demanding compensation for moral damages in amounts which were 10 or even 100 times greater than the entire property of the given outlet. As a result of such law suits, media outlets closed down or incurred serious financial loss which jeopardized their ability to function. In April 2003 parliament adopted amendments to legislation thanks to which the number of such suits was significantly reduced. Firstly, parliament established clear differentiation between the publishing of facts and of value judgments, and removed liability for the publishing of the latter. Secondly, it introduced a differential rate of state tax duty in defamation suits so that the duty increased substantially in parallel with the amount of compensation sought.

However law suits demanding disproportionately large amounts of compensation still do occur. The state company “Energoatom” lodged a claim for compensation against the Mykolaiv newspaper “Vechirniy Mykolaiv” [“Evening Mykolaiv”] of 100 thousand UH for publishing the article: “Is the Tashlyk hydroelectric power plant really needed?” which discussed the issue of Ukraine’s use of nuclear energy citing as examples the Tashlyk hydroelectric power and the South Ukraine Nuclear Power Plant Complex (Mykolaiv)[26].

A panel of judges of the Court Chamber for Civil Proceedings of the Supreme Court of Ukraine on 3 October 2005 accepted for consideration a cassation appeal by the journalist Oleh Yeltsov, and suspended the enforcement of a ruling by the Pechersky Court  on a law suit from the company “Eural Trans Gas” which had demanded compensation to the sum of 75 thousand UH from the journalist.   Oleh Yeltsov, the owner of the Internet publication “Ukraina kriminalna” [“Criminal Ukraine”] had, on 18 August 2003, posted on his website an article by the journalist Roman Kupchinsky with a reference to the original source (the site of the Ukrainian Service of “Radio Svoboda”], which was later republished in the newspaper “Uryadovy kuryer” [“Government Courier”].  The article was about a shady deal involving many millions between the then head of “Naftohaz”, Yury Boiko, and the head of the Russian “Gasprom”, Alexei Miller, connected with transporting Turkmenistan oil. By the time the case was reviewed in court, Yeltsov already neither owned the Internet publication, nor worked for it as a journalist.  The claimants did not lodge a law suit against “Radio Svoboda” or its journalist. Previously, on 3 June 2005, the Kyiv Appeal Court had upheld the ruling of the Pechersky District Court of the city.[27]

The Kyiv Appeal Court rejected the appeal brought by V. Rabinovych, V. Katsman and the state enterprise “Stolychni novyny” [“Capital news”] against the ruling of the Pechersky District Court in Kyiv from 30 March 2005. The latter ruling had found them guilty of systematic defamation of the Inter-regional Academy of Personnel Management (IRAPM, in Ukrainian MAUP) and its heads. The court had ordered the respondents to retract all untrue information about IRAPM which had been published in “Stolychni novyny” and “Stolychka”  in 2004, and had bound “Stolychni novyny”,  V. Rabinovych and V. Katsman to pay moral compensation of 50 thousand UH[28]

The Rivne City Court on 26 December 2005 partly allowed a law suit lodged by State Deputy Pavlo Supkovsky against the newspaper “Volyn”. The Deputy was demanding 100 thousand UH for damage to his honour and dignity from the journalists and newspaper which, in one of their publications, had called him a “dead body”. The judge, Yevhen Sydorchuk, halved the figure awarded, ordering that the editorial board pay thirty thousand UH, and the two journalists 10 thousand UH each.[29].

The overall figures for civil law suits against journalists and media outlets in cases involving defamation can be presented as follows:

 

Information on law suits in cases involving defence of honour, dignity and reputation against media outlets [30]

 

 

Statistical data on arguments regarding defence of honour, dignity and reputation[31]

 

 

One sees from these figures that there has been a substantial decrease both in the number of claims against media outlets and journalists satisfied by the courts, and in the amounts awarded in non-pecuniary damages.

Another form of disproportionate punishment is the use of criminal punishment. Such cases are not  frequent in Ukraine, but they do occur.

The oldest such example of this is the Salov Case. The European Court of Human Rights issued its final Judgment in the Case of Salov v. Ukraine on 6 September 2005[32]. (Application № 65518/01), in which, amongst other things, it found Ukraine guilty of having violated Article 10 of the European Convention on Human Rights.  This case involved a rather interesting incident which occurred in 1999 during the presidential election campaign.  An unidentified individual had put out a fake special issue of the newspaper “Holos Ukrainy” [“Voice of Ukraine”] from 29 November 1999 which, in an address allegedly from the Speaker of the Verkhovna Rada, O. Tkachenko, informed of the death of one of the candidates for the Presidency and the then President of Ukraine, Leonid Kuchma.  Mr Salov received this newspaper in his post box and decided to show it to friends. As a result, he was detained by law enforcement officers. On 6 July 2000 the District Court convicted Salov of interfering with the civil right to vote for the purpose of influencing the presidential election results (Article 127 of the “former” Criminal Code of Ukraine). The District Court sentenced the applicant to five years’ imprisonment, which was suspended for a two-year probationary period as the actions of Mr Salov “in fact entailed no grave consequences”. It also ordered the applicant to pay a fine of 170 UH[33].  As a result of this sentence his licence to work as a lawyer was later annulled.

The European Court, taking into consideration that the information disseminated had in fact been false, found that there had been a violation of Article 10.

„113. However, from the domestic courts’ findings it can be seen that this statement of fact was not produced or published by the applicant himself and was referred to by him in conversations with others as a personalised assessment of factual information, the veracity of which he doubted. The domestic courts failed to prove that he was intentionally trying to deceive other voters and to impede their ability to vote during the 1999 presidential elections. Furthermore, Article 10 of the Convention as such does not prohibit discussion or dissemination of information received even if it is strongly suspected that this information might not be truthful. To suggest otherwise would deprive persons of the right to express their views and opinions about statements made in the mass media and would thus place an unreasonable restriction on the freedom of expression set forth in Article 10 of the Convention.

114. The Court notes that the applicant emphasised that he had not known whether this information was true or false while he was discussing it with others. He alleged that he was trying to verify it. Moreover, the impact of the information contained in the newspaper was minor as he only had eight copies of the forged Holos Ukrayiny newspaper and spoke to a limited number of persons about it, a fact that should have been taken into account by the domestic courts. The requirements of free expression and free discussion of information enshrined in Article 10 of the Convention, bearing in mind the particular context of the presidential elections, should have also been taken into account by the domestic courts in considering the applicant’s case.

115. (...)In the applicant’s case, the sentence of five years, which was suspended for two years, the fine of UAH 170 and the resulting annulment by the Bar Association of the applicant’s licence to practise law constituted a very severe penalty.

116. In short, the reasons relied on by the respondent State were neither relevant nor sufficient to show that the interference complained of was “necessary in a democratic society”. Furthermore, the decision to convict the applicant for discussing information disseminated in the forged copy of a newspaper about the death of President Kuchma was manifestly disproportionate to the legitimate aim pursued..”

Another similar case involved the conviction in 2005 of Vasyl Herus. The criminal case against the former Editor of the Rivne city newspaper “Sim dniv” [“Seven days”] was launched on 13 December 2004 under Article 161 § 1 of the Criminal Code of Ukraine (violation of the equal rights of citizens on the basis of race, ethnic origin or attitude to religion). This was over the publication in the newspaper of false campaigning material entitled “Yushchenko’s political aims” which, according to the Prosecutor’s constituted an incitement to ethnic hostility and hatred, denigrated the national honour and dignity of citizens of Ukraine. In the course of the investigation, the case was reclassified under other articles of the Criminal Code. On 20 July 2005 the Court convicted Vasyl Herus under Article 364 § 2 and Article 157 § 2 of the Criminal Code (exceeding his work-related authority leading to serious consequences and interfering with the civil right to vote) He was sentenced to three years deprivation of liberty, which was suspended for a one-year probationary period[34] . The sentence has been appealed but not thus far revoked.

While on 18 April 2005 the Rivne Regional Appeal Court in the same case revoked the ruling of the Local Court in Rivne from January 2005 which had also ordered the newspaper “Sim dniv” to pay President Yushchenko 100 thousand UH moral compensation and 5 thousand UH state duty for the publication of untruthful information about him in the newspaper during the presidential election campaign in 2004.

 

THE LIMITATION OF FREEDOM OF SPEECH IN THE ELECTORAL PROCESS

The new version of the Law “On the Election of State Deputies of Ukraine” from 7 July 2005 substantially restricted freedom of speech and threatened to generally paralyze the activities of the mass media during the electoral campaign of 2006. It should be noted in particular that for some unknown reason, the text of the law which parliament voted for was significantly different from the text which the President signed. How this could have happened, and why, remain a mystery.[35]  Article 67 § 12 of this Law states that “coverage of the election process in mass media outlets regardless of their form of ownership taking the form of information reports, news, etc, shall be carried out without commentary and evaluation, exclusively on an objective, impartial and well-balanced basis”

  Particular provisions of this Law which pertain to the regulation of the activity of the mass media during the election process actually limited the constitutional right to information and freedom of expression, that is, were not in compliance with the Constitution of Ukraine since, according to Article 22 § 3 of the Constitution of Ukraine, «The content and scope of existing rights and freedoms shall not be diminished in the adoption of new laws or in the amendment of laws that are in force».

Following the adoption of this law it became even less clear exactly which State executive body had the right to temporarily suspend or withdraw the licence of a television or radio broadcasting company. According to Part 10 of Article 71 “…. where there has been an infringement by a media outlet of the requirements set out in paragraphs five or nine of this Article, on the petition of the Central Election Commission or of the relevant district electoral commission, the particular media outlet shall have its licence or the issue of printed material temporarily suspended (pending the end of the election process) according to the procedure stipulated in law.  In the event of any other infringements being committed by a media outlet, the requirement of this Law for the temporary suspension of the force of the licence or of the issue of printed matter shall be implemented exclusively with the sanction of the court”. 

According to Tetyana Kotyuzhnynska, member of the Commission of Journalist Ethics, “the revised Ukrainian laws totally muffle the Ukrainian mass media.  According to the new law “On the Election of State Deputies of Ukraine” on the course of the pre-election campaign, you are only allowed to publish information reports, without commentary or assessments, without any opinions of citizens of the video or photo backup. All this information has to be objective, balance and impartial. What is more, it is electoral commissions that decide to what extent the information meets these criteria.. Effectively, the content of a publication may be influenced by district electoral commissions or the Central Election Commission.  One can also add the new Civil Code according to the provisions of which any negative information is a priori considered untruthful. We could in the very near future face “selective shots”: in conditions where everybody is forced to breach the law, only the “inconvenient” outlets will be closed.[36].

Amendments to the Law “On the election of State Deputies of Ukraine” which brought it into compliance with the Constitution of Ukraine were only introduced in November 2005 as the result of a major campaign by the public and the mass media.

In accordance with Point 2 of the Law of Ukraine “On introducing amendments to some legislative acts of Ukraine aimed at enabling citizens to exercise their electoral rights, ensuring freedom of political debate, an unbiased attitude from the mass media to candidates for the office of Deputy, to parties (blocs) taking part in the election process” from 17 November 2005, Article 71 § 10 of the Law “On the election of State Deputies of Ukraine” was given in the following version: “the decision about the temporary (pending the end of the election process) suspension of a licence, or about the temporary ban (pending the end of the election process) on the publication of printed material shall be taken by the courts”.  The aim of this norm’s guarantee is to safeguard the mass media against illegal loss of their licence, and to thus ensure freedom of expression in the Ukrainian mass media.  The norm which prohibited journalists from giving commentaries and making assessments in the course of providing information reports was also removed.

This law in addition made amendments to Articles 5, 28, 30 of the Law “On television and radio broadcasting” which primarily concerned the limitation of the powers of the National Council, with regard to cancelling or temporarily suspending the licences of television or radio broadcasting companies.  In particular, Parts 16, 17, 18 were removed from Article 5 of the Law, these having given the National Council the right, where infringements by a television or radio broadcasting company of current legislation or a breach of the conditions indicated in the licence had been detected, to temporarily suspend (for up to two months) or to cancel the licence.  According to Article 28, the force of a licence issued by the National Council may only be temporarily suspended by court ruling. Thus, in accordance with the new version of Article 28, in the event of the broadcasting of programs containing information the dissemination of which is prohibited by legislation about the elections, the National Television and Radio Broadcasting Council of Ukraine on the application of the Central Election Commission or a district (territorial) electoral commission can now no longer temporarily (pending the end of the election process) suspend a licence giving the right to use broadcasting channels.

However even these amendments could not fundamentally improve the situation. Electoral legislation effectively restricted political discussion through the broad interpretation of the concept “political advertising” and the serious sanctions envisaged for violations of the conditions on broadcasting such advertising. As a consequence the election campaign became sterile, bland and quite simply boring.[37]

Legislation was accordingly treated in such a way that any public speeches either criticizing or making positive remarks about specific candidates were viewed as being political advertising, and not as free debate on socially important issues. As a result, any text or video clip which showed the party or members of candidate lists was subject to strict censorship in case it could be considered to be pre-election campaigning Indeed, when media outlets circulated information with critical content about parties or members of their candidate lists, they risked ending up with law suits demanding their closure until the end of the elections. For this reason articles in newspapers and television programs teemed with reserve clauses: “This is not campaigning!  This is not campaigning!” 

As a result of this law, on 17 February 2006 the Sumy Regional Appeal Court suspended issue of

the Sumy newspaper “Hromadyany Ukrainy” [“Citizens of Ukraine”] until after the elections. .The Kyivsky District Court in Simferopol suspended the licence of the Chornomorska television and radio company until the end of the elections in response to a law suit filed by the Crimean branch of the Party of the Regions. This ruling was later reversed by the Appeal Court.

However, most rulings by electoral commissions or courts involved limitations of particular individuals’ freedom of expression.

Two Resolutions from the Central Election Commission were highly revealing in this respect. These were No 716 from 23 February and No. 793 from 2 March based on complaints from the electoral bloc “NE TAK!” [“NOT YES!”]  regarding the actions of the newspaper “Silski visti” [“Rural news”] and Petro Poroshenko. In both cases the claimant alleged violation of its rights and legitimate interests. The Central Election Commission (CEC) reviewed the merits of the claim confining its review exclusively to electoral law.

The complaint lodged by the electoral bloc “NE TAK!” against the newspaper “Silski visti” was over an article: “Wishing you happiness in the noble cause of serving the Ukrainian people”, printed in No. 18 from 14 February. The CEC states in its Resolution: “the article contains value judgments in the form of political rhetoric, critical, polemic and sarcastic comments aimed at some participants in the electoral process, specifically:

“...Ukraine remembers those who tried to crush “Silski visti” – Leonid Kravchuk (1986) … who cynically trampled on human rights by banning subscription to “Silski visti” on territory in their control… While Leonid Kravchuk, obviously, in the role of sergeant-major of the suppression corps, or maybe to mark the 20th anniversary since the first waving of sabres above the head of the leader of the “Silski visti” staff, I. Spodarenko, began a new assault on  “Silski visti”, announcing a protest campaign against the Presidential Decree No. 60 from 23 January 2006 which honoured Ivan Vasylyovych Spodarenko with the title of Hero of Ukraine.

One can understand the  ex-Communist Party of Ukraine ideologist: the Party henchman doesn’t want the newspaper and its leader, through their very existence in this world, to be a reminder of his dark past. Yet what a banner he raises above himself: the honour of Ukraine!

…The newspaper “Silski visti” really weighs down upon Mr Kravchuk.  It’s clear that if he was lying in his grave, he’d turn in it”.

„…It is you, Mr Kravchuk, who are the leading actor and at the same time the director of the theatre of the absurd.  And the point is not that you are transforming yourself from the role of militant blasphemer to that of God’s Anointed, nor that you are so concerned about the memory of the victims of the Holocaust, but banned the very mention of Holodomor [the Famine of 1932-1933[38]] in Ukraine. At the end of the day you don’t care what you use to trade with, you once went with your image as the first president of Ukraine trying the Cossack card to a candidate for the office of Kyiv Mayor who suited you but wasn’t wanted at all by the people of Kyiv. However that is from the area of morals. Although, what morals?. You when you were President of Ukraine squandered the world’s largest (at the time) Black Sea Fleet.  As President of Ukraine you diddled away up to one and a half billion of people’s savings, casting your own people into abject poverty, unemployment, and also crushing inflation. And you, through Kuchma’s bounty, are “Hero of Ukraine!”

That really is a theatre of the absurd. And you are now trying the card of anti-Semitism and xenophobia, as if forgetting that it’s been beaten and is lying in the rubbish heap, of any use only to down-and-outs who live from such rubbish containers and sometimes even sell things they find.  You, Mr Kravchuk, who are always flaunting your knowledge of the law, supposedly a legal know-it-all. Do you really not know that the accusation against “Silski visti” , initiated by Rabynovych and fabricated by Saprykina, of anti-Semitism, xenophobia and stirring up inter-ethnic antagonism was revoked by the Kyiv Appeal Court?

Your political companions, Viktor Medvedchuk[39] and Viktor Yanukovych, the main pillars of the Kuchma regime, have also got involved in the case. Here, then, it’s all clear.

However at the bottom of the letter which began the campaign against “Silski visti”, and at the same time – on the pre-election wave – against the President of Ukraine Viktor Yushchenko, there are 13 other signatures. …”

The CEC decided that the article contained characteristics of pre-election campaigning and that it had been printed without prior agreement with a participant in the electoral process, and allowed this part of the claim made by the bloc “NE TAK!”  As regards the opinion of the claimant that the article “published some knowingly untruthful and libellous information about the participant in the electoral process – the candidate for the post of State Deputy Leonid Kravchuk”, the CEC did not agree with this assertion, stating that “the claimant has not submitted to the Central Election Commission any proof of the contention that the information which he considers to be knowingly untrue and libellous is such. Therefore this part of the claim is not accepted”.

The CEC ordered the newspaper “Silski visti” to “refrain in future from committing infringements of the Law on the Elections”. Such a decision acted like a great “cold shower” and obstructed the will to freely discuss the qualities of participants in the election process.

In Resolution №793 from 2 March the CEC considered the claim brought by the bloc “Ne tak!” against the actions of Petro Poroshenko. The claim states:

On 21 February 2006  at 19.40 during a meeting with the public of Kherson which was broadcast on the television channel “SKIFIYA” the respondent of the claim, P.O. Poroshenko stated the following: ”There is no alternative – and this is a true political reform. Not the empty waffle initiated by the communists, Medvedchuk, the Regions and Kuchma”.

During this meeting,  P.O. Poroshenko expressed the following opinions with regard to N.I. Shufrych[40]:  “I’m sorry, but I think he’s a clown. I’m pleased that this is already seen by the entire country’s population, and I consider that the political faction that he is leader of is … the one thing that I am ashamed of, that the first President of our country, Mr Kravchuk is at the head of a list which is demanding the abolition of Ukrainian as the state language pr the introduction of Russian, which … well he should be ashamed of himself. And all the others there are clowns. Their time has already passed.  Think of who Medvedchuk was a year ago, or a year and a half ago. He was the lord of the state. Look how he was blown off the scene as soon as real representatives of the people came. Look at what the level of support today is for that political force “NE TAK!” – without any rigging, without bans on speaking out on television – he’s nobody …”

As proof of these circumstances, the claim was armed with a videocassette and compact disk with recordings of P.O. Poroshenko’s addresses. However the CEC decided that the video recording did not contain the opinions given above and that it was not possible to establish that the video material recorded on the compact disk had been broadcast on the television channel “SKIFIYA”.  The candidate for State Deputy of Ukraine, Petro Poroshenko did not belong to the exclusive list of individuals who, according to paragraph one of Article 71, are prohibited from taking part in pre-election campaigning.  His participation, therefore, in pre-election campaigning was not in contravention of the regulations of the Law on the elections. On this basis, the CEC decided to reject the claim of the bloc “NE TAK!” 

It looks as though the television channel “SKIFIYA” in its coverage of Poroshenko’s meeting with the public of Kherson simply cut out his critical remarks about his opponents, and in this way saved themselves from the sanctions, or even forced closure, they could have faced.

We thus find that the Law on the elections, and its practical application as this is developing present the following picture: candidates for the office of Deputy have the opportunity to freely discuss election issues, while journalists and the mass media may only provide coverage of these debates on the basis of agreements with the political parties (blocs), that is, representing their interests. They themselves are not able to freely express their opinions, since any critical comments are treated as pre-election campaigning.  They are therefore forced either to abandon any coverage of the election campaign or resort to serious self-censorship.

One should also mention the entirely unjustified rulings banning the Minister of Internal Affairs, Yury Lutsenko, from making public information about the criminal past of candidates for the office of State Deputy with reference to norms which prohibit campaigning by officials of state bodies of power. These examples clearly show that the provisions on pre-election campaigning in the Law “On the Election of State Deputies” contravene the Constitution of Ukraine and Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.  This had a particularly negative impact on the course of the parliamentary elections as a result of considerable limitation on freedom of expression.

  Throughout the presidential campaign from autumn 2004 a moratorium was imposed on checks of television and radio companies by controlling authorities, however in our opinion this step was entirely politically motivated, and was not prompted by the real threat of pressure on the mass media. Later this could have become an additional argument for asserting the existence of administrative pressure on the mass media on the part of the new regime.

 

LIMITATIONS IN THE CONTEXT OF PROTECTING PUBLIC MORALS

In the last several years in Ukraine limitation on freedom of expression has been heightened through the protection of public morals.

First of all a law was adopted “On the protection of public morals”.  As discussed in “Human Rights in

Ukraine – 2004”.this basically runs counter to the Constitution of Ukraine, as well as to international standards in the area of freedom of speech.

  However at the present time incidents where this legislation is being applied have begun to appear. The members of the National Expert Commission on Issues involving the Protection of Public Morals, created in accordance with the above mentioned law, changed in 2005. These changes, moreover, took place with a direct breach of the legally established procedure.  For example, according to the law, the Chair of the Commission is appointed by the members of the Commission themselves. However the members are appointed by the Cabinet of Ministers at the recommendation of the Chair. Thus, the law lays down procedure which it is simply impossible in practice to follow, as a result of which the Government decided to appoint the Chair of the Commission in violation of the law, rather than submitting a law on amending the given procedure.

On the basis of the law “On the protection of public morals, on 30 August 2005 the Commission on the distribution and showing of films in Ukraine banned the showing in Ukraine of the film by the director George A. Romero “Land of the Dead” (Universal Studios).  According to Ukrainian legislation, before showing any film in Ukraine, the owner of the rights to the film must receive a certificate giving the right to show the film in Ukraine. The certificate indicates, for example, any age restrictions as far as viewers are concerned. The General Director of the company B & H, Bohdan Batrukh, at a press conference stated that the given film had been shown in over 100 countries, including in Russia and Belarus.[41]   Later, on the basis of the same law, a Quentin Tarantino film was banned.

It should be noted that limitations on freedom of speech for the purpose of protecting public morals are acceptable. However in Ukraine, despite a current law on the protection of public morals, clear grounds are lacking for limiting freedom of speech for this purpose. As a result of this, such a restriction is carried out in a selective manner and at the personal discretion of certain officials of bodies of state power. Nobody is able to foresee their behaviour in such a way as to not infringe legislation on the protection of public morals.

 

1)Recommendations

1.  To implement a program for reforming State media outlets by changing their system of management and financing in accordance with the recommendations of the Council of Europe and OSCE. The best example of such reform is the introduction of public TV and radio broadcasting on the basis of UT-1 National Television Channel and the First National Radio Channel.

2  To draw up and introduce the appropriate legislation and programs of self-regulation for journalists and media outlets in order to reduce the spread of information material which is paid for or produced on commission with infringements of journalist standards of objectivity and balanced presentation of information.

4)3  To cancel the laws “On the procedure for the coverage by the Mass Media of the activities of state executive bodies and bodies of local self-government in Ukraine” and “On state support for the mass media and the social protection of journalists”, allowing for the cancellation of particular benefits for journalists of state media outlets, and to ensure that they have the same rights as journalists on non-state media outlets.

4.  To adopt a new version of the law on television and radio broadcasting which would comply with the standards of the Council of Europe, OSCE and the European Union.

5.  To introduce amendments to legislation making it possible to identify the real owner of a media outlet, especially of television channels and radio stations; to introduce effective control over the concentration of media outlets in the hands of one owner or members of his or her family; to introduce anti-monopoly restrictions for the information market in compliance with recommendations of the Council of Europe, OSCE and the European Union; to introduce necessary procedure for punishing those who infringe legislation on the concentration of the media.

6. To ensure quick and transparent investigation into all reports of violence and deaths of journalists, as well as into cases of interference in journalists’ activities.

7) To accelerate the procedure for ratifying the European Convention on trans-border television, the Additional protocol to the Convention on trans-border television, and to also introduce amendments to legislation on the implementation of its regulations, as well as the provisions of the EU Directive 85/552/ЕU, 97/36/ЕU «Television without Borders».

8) To disband the National Committee for Television and Broadcasting during an overall consideration of Draft amendments to the Constitution of Ukraine.

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[1]  Report of the National Television and Radio Broadcasting Council of Ukraine for 2005.  Pages 6 – 23. Available in Ukrainian at: http://nradatvr.kiev.ua/files/docs/Zvit2005.doc

[2]  “Information on the activities of print media outlets”. The press service of the State Committee:: http://comin.kmu.gov.ua/control/uk/publish/category/main?cat_id=33727

[3]  Prepared on the basis of the study “An overview of changes in legislation regulating the activities of the Mass Media and freedom of information in Ukraine in 2005” by Oksana Nesterenko, PhD Student in the Faculty of Constitutional Law of the Yaroslav Mudry [the Wise] National Law Academy .Available (in English) at the Kharkiv Human Rights Group website: www.khpg.org.ua

[4]  Taras Shevchenko: Ten grounds for justifying a Presidential Veto on the Law “On television and radio broadcasting” // Telekritika Internet Publication about the Mass Media in Ukraine / www.telekritika.kiev.ua  (in Ukrainian)

[5]  The original letter (in Ukrainian) is available at http://helsinki.org.ua/index.php?id=1138893480 however a translation into English can be found at: http://khpg.org/1139439931

[6]  The amendment was set down in the Law ““On introducing amendments to the Criminal and the Criminal Procedure Codes of Ukraine, to the Administrative Offences Code of Ukraine, with regard to the safeguarding of individual human and civil rights and freedoms”  from 12.01.2006

[7]  Appeal to the President of Ukraine to use his power of veto on the Law of Ukraine “On introducing amendments to some legislative acts of Ukraine (on protecting individual human and civil rights and freedoms)” which was passed by parliament on 12 January. Available in Ukrainian at : http://helsinki.org.ua/index.php?r=2&t=9

[8]  Frank Webster:  Theories of the Information Society, 2nd revised edition, Routledge, International Library of Sociology, 2002  (page references here are to the Ukrainian translation)

[9]  Quoted from the same source.

[10]  Those who own broadcasting time also own Ukraine?” – UHHRU press release from 24 January 2006. Available (in Ukrainian).at: http://helsinki.org.ua/index.php?id=1138097813.  See also : “Who’s living in my telly?” by Viacheslav Yakubenko, available in English at: www.khpg.org.ua

[11]  The whole control network over the television channel is available here: “Who owns “Inter”?” (in Ukrainian) at: http://helsinki.org.ua/index.php?id=1141040859

[12]  Report of the National Television and Radio Broadcasting Council of Ukraine for 2005. Available in Ukrainian on their official site: http://nradatvr.kiev.ua/files/docs/Zvit2005.doc

[13]  “temnyki” were the instructions issued to journalists, etc, as to which subjects should be covered, and how, and which topics and individuals were not to be given media coverage.  The first public rejection of these came during the Orange Revolution.  (translator’s note)

[14]  See, for example, “The regional press calls for all bells to be rung” at : http://helsinki.org.ua/index.php?id=1118420100 and “Is Chernivtsi state television working according to “temnyki”?” at: http://helsinki.org.ua/index.php?id=1133534422  (in Ukrainian)

[15]  See, for example: “Are “temnyki” on their way back?” // Gazeta “2000”, 26 August 2005 published in “Freedom of expression in Ukraine”, № 8, 2005 (August), available at the KHPG website (in Ukrainian):  www.khpg.org

[16]  “Freedom of speech and of the press: achievements and problems in 2005”. The results of monitoring carried out by the Institute of Mass Information. Available at: http://imi.org.ua/?read=547:2

[17]  “The Freedom of Speech Barometer for December 2005”, according to information from “Skhid-info” // Institute of Mass Information www.imi.org.ua

[18]  “The Freedom of Speech Barometer for July 2005”, according to information from the Internet publication “Telekritika” // Institute of Mass Information www.imi.org.ua

[19]  “Are the lives of journalists again in danger?” The Centre of Extreme journalism according to information from journalists of the newspaper “Nova Kakhovka” // http://cjes.ru/lenta/view_news.php?id=28478&year=2005&lang=rus

[20]  More detail on this by Vaktang Kipiani: “My personal investment in the project “Yushchenko” has not brought any dividends” (in Ukrainian) // the Internet publication “Telekritika”: http://telekritika.kiev.ua/articles/123/0/900/

[21]  The Freedom of Speech Barometer for February 2005”  // Institute of Mass Information www.imi.org.ua

[22]  The Freedom of Speech Barometer for December 2005”  // Institute of Mass Information www.imi.org.ua

[23]  With regard to the conflict over press access in the Gongadze case, see: “Press access to the court hearing. Whose problem is it?” Natalya Petrova, media law specialist, specially for the Internet publication “Telekritika” // 16 січня 2006 року, www.telekritika.kiev.ua

[24] “Can a judge ban a journalist from recording court proceedings?” – Application to the Chair of the Supreme Court of Ukraine from the head of the Kherson City Association of Journalists “Pivden” [“South”], A. Matrosova // “Freedom of expression and privacy”, № 3, 2005 (July - September), www.khpg.org.ua

[25]  “A European Judgment from the Desnyanskiy District Court in Chernihiv” // The original Ukrainian article is at the website of “Human rights in the Chernihiv region” http://protection.org.ua and an English translation at: http://khpg.org/1140005242

[26]  More detail about this law suit in “For each citizen – a peaceful atom, for each who wants to discuss it – a peaceful 100 thousand UH law suit” Oleh Tseluyko (in Ukrainian)  // http://helsinki.org.ua/index.php?id=1129284508

[27]  See a more detailed legal analysis of the case “Re-publications” in the Internet: establishing new court traditions”. Oleh Tseluyko (in Ukrainian) // www.imi.org.ua

[28]  “50 thousand for moral damages” // the newspaper “Molod Ukrainy” [“Ukrainian Youth”] from 30 June 2005

[29]  Freedom of Speech Barometer for December 2005 // Institute of Mass Information www.imi.org.ua

[30]  Letter from the State Court Administration of Ukraine, №14-6335/05 from 6 October 2005

[31]  Letter from the State Court Administration of Ukraine, №14-6817/05 from 25 October 2005. The figures include all similar law suits, not only those against media outlets and journalists

[32]  The Judgment is available in Ukrainian on the Ministry of Justice site : www.minjust.gov.ua, and in English at: www.echr.coe.int

[33]  EUR 32.82

[34]  More information on this case available in the article “Vasyl Herus sentenced to three years for libelling Yushchenko” (in Ukrainian) // the Internet publication “Telekritika” http://telekritika.kiev.ua/news/146/0/15202

[35]  The text of the Law on the Election of f State Deputies of Ukraine is different from that which the Verkhovna Rada voted for” Taras Shevchenko, Director of the Media Law Institute. //  the Internet publication “Telekritika”: http://telekritika.kiev.ua, 11.08.2005, 10:58

[36]  “Safety techniques during the elections – 2006” // the Internet publication “Telekritika” http://telekritika.kiev.ua/news/146/0/16192

[37]  “Infringements of freedom of expression during the 2006 election campaign”.  Yevhen Zakharov // Available on the KHPG website in English: www.khpg.org.ua

[38]  Holodomor refers to the deliberately induced Famine of 1932-1933 which killed between 5 and 10 million people. It was largely ignored in the West, and consistently denied throughout the Soviet period.  (translator’s note)

[39]  Viktor Medvedchuk was Head of the Presidential Administration in Kuchma’s regime and wielded considerable power. (trnaslator’s note)

[40]  Nestor Shufrych is a member of the Social Democrat Party of Ukraine (United), which is one of the parties in the opposition bloc “NE TAK!”.  He was no. 4 on the candidate list below ex-President Kravchuk and ex-Head of Kuchma’s Administration, Viktor Medvedchuk  (translator’s note).

[41]  “First film banned in Ukraine” // the newspaper “Kyivskye Vedomosti”  www.kv.com.ua, 30 August 2005, 12:07.