Five editorial boards are already involved in “Kuchmas case”: lawyers comments
10 April, the IMI, Kyiv
The General Prosecutors office of Ukraine started the criminal case after Article 344 part 1 of the CC of Ukraine “Meddling into the activities of the President of Ukraine” on the basis of the publications in mass media. According to the IMI data, heads of the editorial boards of five newspapers have been already interrogated in this case. The prosecutors officers also seized those issues of these newspapers, where the articles devoted to “Kuchmas case” were printed. Here is the complete list of these editions:
"Informatsiyny bulleten” (Kremenchug)
"Cherkasska Pravda” (Cherkassy)
"Rivnenskiy Dialog" (Rivne)
The IMI turns to everybody, who was interrogated in this case or from whom the printed editions were seized, with the request to inform us about this by the phone 212-19-66 or by e-mail address email@example.com
This case may be interpreted as another unprecedented attack at the freedom of speech and as an attempt to “recompense” the exclusion of the article about libel from the new Criminal Code. This situation excited disturbance and heated debates not only among journalists. In what follows we present the opinions of lawyers about this case.
Maria Sambur, the IMI lawyer:
The activities of mass media must be assessed according to the demands of the Ukrainian Laws “On information” and “On printed mass media (press)”. Publications in printed mass media must agree with the demands of Article 46 “Inadmissibility of misuse of the right for information” (Law of Ukraine “On information”), which reads: “Information may not be used for the appeals to overthrow the Constitutional order, breach of the territorial integrity of Ukraine, propaganda of war, violence, cruelty, fanning race, national or religious enmity, infringement on rights and freedoms of people”.
The information being a state secret or other secret information stipulated by laws may not be divulged. The second group of secret information includes: medical secrets, secrets of money deposits, incomes from entrepreneurial activities, adoption of children, correspondence, telephone talks and telegrams, except the cases envisaged by laws.
This list is exhaustive, and editorial boards, founders, publishers and distributors of mass media must be brought to disciplinary, civil, administrative or criminal responsibility for the concerned violations according to Article 41.
Article 344. “Meddling into activities of a state official”: The illegal influence in any form on the President of Ukraine, the Head of the Supreme Rada of Ukraine, an MP of Ukraine, the Prime Minister of Ukraine, a member of the Cabinet of Ministers of Ukraine, the ombudsperson or his/her representatives, the Head or a member of the Counting Chamber, the Head or a member of the Central Voting Commission, the Head of the National Bank of Ukraine, a member of the National Council of Ukraine in charge of TV and radio broadcasting, the Head of the anti-Monopoly Committee of Ukraine, the Head of the Fund of State Property of Ukraine, the Head of the State Committee of TV and radio broadcasting of Ukraine with the aim to prevent the fulfillment of their service duties or to make them to adopt illegal decisions imply the concrete actions directed at the impediment to the fulfillment of service duties by the state official or to the adoption of illegal decisions.
Thus, the publications criticizing the activities of the President of Ukraine may not be interpreted as criminal actions, since the editorial boards and journalists have no goals to influence the adoption of illegal decisions. On the contrary, mass media accent the attention of the society at the obedience by the state officials to the operating laws and disclose the violations of the legislation. So, the accusation of the journalists of the actions stipulated by Article 344 may be assessed as an encroachment on the freedom of speech, since the publications in the press are not illegal.
Bogdan Ferents, the manager of the Ukrainian-American juridical company “Ralin Consulting”:
I believe that the institution of this criminal case on the facts of the publications in mass media is absurd. Journalists criticize the activities of the authorities, and they have this right, since they are the reflection of the society. Journalists fulfill an important role in the society – they spread information.
As far as I know, editors of printed mass media are interrogated and issues of newspapers, in which the articles by Tetiana Korobova were printed, are seized. Yes, Korobova expresses her opinion about the President very harshly, but this is not a crime. If these publications abused honor and dignity of the President, he has the right to turn to court according to the civil procedure, and everybody would understand him.
Viktor Boyarov, an assistant professor of the Lawyer Academy of Ukraine, a candidate of law:
In our opinion, Article 344 of the CC of Ukraine envisages the activities (for instance, blackmail) directed at the impediment to the President of Ukraine (in this case) to fulfill his service duties or at adoption by him of illegal decisions. The quotation from the article printed in “Informatsiyny bulleten”: “Now it is widely known that the murder was ordered, consciously or not, by President Kuchma” does not satisfy these conditions. This article was not aimed to impede to the President to fulfill his service duties or to make him to adopt illegal decisions. The author merely expressed the opinion that the President had some connection with the murder of the journalist. These words may be considered by the President only as an insult of his honor and dignity.
Well, these actions may hinder the President in the fulfillment of his duties to a certain extent, but it may happen only if, for example, he would be offended so that he would not be able to work. So, this depends only on his subjective attitude both to these publications and to his duties.
Yet, the publication itself does not contain any attempts of illegal influence on the activities of state officials and does not infringe upon the normal work of state organs.
On the other hand, the journalists did not abuse the demands of Article 46 of the Law “On information”, which envisages the misuses of the right for information, since until now nobody have refuted the assumption on the authenticity of the so-called “Melnichenkos records”, which allegedly contained the talks of the President with other persons about G. Gongadze and which could be interpreted as the order to fulfill the illegal actions against the journalist.
Under such conditions we reckon that the criminal case started by the General Prosecutors office must be closed because of the absence of corpus delicti.