A Traumatized Turncoat vs. Press Freedom

A turncoat,, the dictionary tells us, is a person who changes to the opposite party or faction. This is precisely what National Deputy Yury But did.  In 2008 he was one of the first deputies to destroy the very fragile majority held by the coalition of “Orange” parties, and is at present a member of the ruling coalition, where he serves as chair of the parliamentary subcommittee on issues regarding the formation of the judges’ corps.

His main claim to fame – or notoriety – could well lead to another rap on the knuckles for Ukraine at the European Court of Human Rights. On 5 October 2010, the Kyiv Court of Appeal upheld the ruling of the Podilsky District Court against Olha Snitsarchuk from TV Channel 5 who in a news report used the word “vidshchepenets” [turncoat, renegade] with reference to Yury But.   

Now nobody would suggest that the word was intended as a compliment, however the court’s ruling was truly staggering.  It ordered the journalist to pay Yury But 20 thousand UAH moral compensation, which for Ukraine is no small amount of money.

But had in fact asked for 100 thousand UAH however his plaintive story of trauma and suffering were at least not deemed worthy of such an astronomical figure.  The Deputy stated: “I was forced to intensively look after my health, endeavouring to get out of a state of shock and return to normal life and work. I began to take medicines stabilizing my nervous system and psyche”. He adds that he began to suffer from insomnia, severe headaches, loss of appetite and depression.

Olha Snitsarchuk cited in defence of her right to a value judgment both Ukraine’s Law on Information and Article 10 of the European Convention on Human Rights.  It seems unlikely that the judges in both courts are familiar with European Court of Human Rights case law which is much to be regretted since it is a source of law and therefore legally binding in Ukraine. 

The Court in Strasbourg has on many occasions stressed that public figures cannot expect to be handled with kid gloves by the press.  Nor can a journalist be held liable for expressing an opinion.  The word “turncoat” may have traumatized the Deputy, but not because it was demonstrably false.

This extraordinary court ruling comes a few months after the latest draft law proposing criminal liability for defamation was registered in parliament, and less than three months before the new Law on Personal Data Protection comes into force. The latter was signed into law by the President on 24 June despite the strongest warnings from media, human rights and even the Bank Association of Ukraine of grave consequences to freedom of speech and information.

It is also of concern given the large number of similar political migrations over the last seven months. Should we expect a spate of such civil suits by other equally wounded and depressed deputies?

On Wednesday, the Channel 5 team addressed an appeal to the High Court of Justice calling for the Judge from the Kyiv Court of Appeal to be dismissed.   They allege corrupt dealings and also suggest that the head of the panel of judges in this case was under But’s control given the latter’s position as head of the subcommittee dealing with judges’ appointment. The appeal states that Judge Zaprolyvny received indefinite tenure on 15 January 2009 on the direct submission of the head of the subcommittee, Yury But.

Without wishing to comment on any legal arguments, it is difficult not to agree with the authors of the appeal that “we have a precedent whereby a journalist and citizen is being deprived of the right to freely hold to her own opinion and circulate information. One of the main factors in the work of a journalist is close scrutiny over the utterances and actions and politicians and public figures, and who, if not journalists should subject these actions to criticism?”

The court ruling became known on the same day that the Parliamentary Assembly of the Council of Europe heard and adopted its Report on the Functioning of Democratic Institutions in Ukraine.  This expresses concern over allegations of threats to media freedom, independence of the judiciary and democratic institutions in general.

The timing makes adequate response to well-founded bemusement and concern over this latest encroachment on freedom of speech, albeit unlikely, particularly urgent.