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08.04.2004

New Civil Code: journalists may only praise

   

If after the New Year an official would call you, for example, a fool, do not argue, because it would be the truth. If you do not believe, then read the new Civil Code that will come into effect at 1 January 2004.

Article 277: journalist has the right only to compliment or to… praise

Almost for twelve years Ukrainians live after the Civil Code (CC) of the UkrSSR, which “… regulates property and… personal non-property relations with the aim to create the material-technical base of communism…” (Article 1 of the operating CC). Probably, having such an experience, we would be able to adapt to the new CC, although I am sure that it would not be easy for everybody. If to ignore the economic constituent of the new CC and to analyze only the information one, the situation seems to be amusing and, at the same time, dreadful. The only thing is comforting: the experts acknowledge that the CC contains a number of defects.

The top line of the rating of absurd is occupied by Article 277 of the Code. It reads: “Any negative information spread about a person is regarded as false”. So, since 1 January journalists will be punished for any critical opinion worded by them: the journalists will be tried for the insult of “of honor, dignity and business reputation of physical or juridical person”, for which the compensation must be paid “with money, property or in other ways” (Article 23). At that “refutation of the untrue information is realized independently of the guilt of the person, who spread the information” (Article 277 again).

Besides, our court, which is, as everybody knows, the most independent court in the world, has the right, according to Article 278, to prohibit the publication of a newspaper, book, movie or TV feature, which are in the process of preparation, or to prohibit (stop) their distribution and even to seize the entire run with the aim to destroy it.

So, the owners of mass media, in order to avoid the problems, must get rid of the journalists, whose attitude to life is pessimistic and who do not think that all politicians are honest and kind. And the life of the fighters with censorship will become easier, because the censorship will stop to exist. Well, who would need the censorship, if Article 277 would exist?

Maybe, I misunderstood something because of the absence of juridical education. So, I turned to judge of Kyiv appeal court Yuri Vasilenko and advocate Tetiana Montian for the comments.

Tetiana Montian commented the possible consequences of the adoption of the new CC: “I think that it is obvious, which mass media will be sunk in a river next. Yet, after 1 January 2004 this will not be a brutal arbitrariness, but a court decision “based on the law”.

Judge Vasilenko added that one might guess what the legislators wanted to say in Article 277: “This norm should have the following form: “Negative information is regarded as false until it is proved with facts”. Yet, the legislators lacked for time, or wit, or the feeling of responsibility for their actions to formulate this idea more clearly. And maybe they had no desire to do this. Yet, now the judges, who fulfill the political orders, will have the opportunity to interpret this article with all predicted consequences”.

Well-known advocate Viktor Ageev shares this opinion: “I think that if this article would come into force, it would not be applied frequently. It is much convenient to fight against the freedom of speech by the illegal methods, such as “temniks”: these methods will not provoke so many scandals as the opened trials. Besides, we are dramatizing the situation too early, the Code is not operating yet, and everything can change, including the incorrect formulation of Article 277”.

Pardon for journalists

The next “hit” of the Civil Code is Article 302: “The information presented by an official in the framework of his service duties, as well as the information contained in the official sources (reports, shorthand records, messages of mass media founded by state organs or organs of local self-rule), is regarded as authentic”.

“This is a pardon for journalists and the guarantee that slanderous information will be published in mass media in spite of Article 277, which is intended for struggle against this shameful phenomena! The matter is that Article 302 also reads: “… physical person, which spreads such information, must not check its authenticity and must not be responsible in case of retraction”. Just imagine what orgy of the “freedom of speech” will begin after the New Year! Everything that will be said by state officials and deputies of all levels or printed in the corresponding press will be considered as truth, absolute and indisputable!”,  said Tetiana Montian.

Let us continue. The Code also contains comparatively pleasant innovations, such as Article 296(4):

“… the name of a physical person, which was detained, or which is suspected or accused of some crime, … may not be used (published) until the court verdict about his/her guilt comes into force”. So, since 1 January General Prosecutor Sviatoslav Piskun will have to refuse from the press conferences, at which he tells about the persons accused or suspected of the resonant crimes. Otherwise Pavlo Lazarenko would exhaust the state budget with the claims, since his honest name is mentioned today in rather bad context. And he would be absolutely right according to the new Code, since the American court has not issued the verdict yet, and, correspondingly, this verdict has not come into force.

Articles 301 (4) and 302 (1) must completely destroy the yellow press in Ukraine. The former article reads that “the details of the private life of a physical person may be divulged by other persons only if they contain the features of delinquency, which fact is confirmed with court decision”. The latter one states: “… spreading the information about private life of a physical person without his/her consent is inadmissible”. So, the editorial board of “Bulvar” would have to ask the permission of stars for printing some spicy details about their life or to wait until these stars would violate the Criminal Code or the norms of public moral, and this violation would be confirmed by court.

Why the MPs voted for the absurdities contained in the Civil Code?

Anatoliy Matvienko, an MP

The fraction “Block of Yulia Timoshenko” voted for the CC and one must not take this for a tragedy. The Parliament adopts the imperfect laws permanently, since the perfection is limitless. All world parliaments mainly work not at new laws, but at the amendments to old ones. It is good that you drew the attention to the absurd articles in the new CC, our bloc will lobby the changes to these articles.

Nestor Shufrich, an MP, the SDPU (u) fraction

I will not comment the Civil Code, because I am not a professional in this sphere. Valeriy Evdokimov, the head of the Committee in charge of legislative base of law-enforcing activities, dealt with this question in our fraction. The decision about the voting on the CC was not individually taken by every deputy, but by the fraction as a whole on the basis of the competent conclusions of Evdokimov. Yet, you told very interesting things, I shall read the Civil Code.

Vasyl Sirenko, an MP, the CPU fraction

The fraction of the Communist Party voted “for” the Code. Unfortunately, we committed the same mistake as Russians several years ago. We adopted the Code, which is very modern and liberal, but absolutely useless, because the Code is absolutely raw, despite the fact that it was elaborated during nine years.

Mykola Tomenko, the fraction “Nasha Ukraina”, the head of the Committee in charge of the freedom of speech and information

The fraction “Nasha Ukraina”, including me, did not vote on the Civil Code at all. In general, our committee did not deal with the CC and has no relation to these absurdities. Now I see that it is a pity that we did not work with the Code, now we will have to correct the situation.

The Code contains many articles that contradict the law on information, and sometimes these articles are merely absurd. So, they must be corrected. Besides, our committee plans to introduce some innovations. In particular, we are going to envisage the journalists’ right to publish the venturesome information, i.e. the information, which is not fully confirmed by facts, but which is of the public interest. It especially concerns the resonant cases – the public interests must be more important that the interests of the USS or investigation.

Viktor Shishkin, a member of the Supreme Council of Justice

The Civil Code is not, to put it mildly, a document of extra-class. Why it is so raw? Why the Supreme Rada approved the Code? Because everyone thinks that he is very clever.

Andriy Shkil, an MP, the BYT fraction

I did not vote for the Civil Code personally. The fraction took the decision to vote “for”, and other person voted with my card in my absence at the session. I know about all absurdities of the CC and it is a pity that I could not express my opinion about this question. Why the fraction voted “for”? I do not know. The voting on the Code took place at rather improper time – during the Christmas holidays, so the deputies had no time to familiarize with such great document containing more than 500 articles. Moreover, the sitting, at which the Code was adopted, was conducted on 15 January, on the next day after the Old New Year (one more New Year holiday, which is celebrated in Ukraine and Russia according to the old calendar. – Translator’s note). So, it is obvious that the number of MPs at the sitting was minimal, and the voting cards of the absent deputies were used by their colleagues by fractions. However, I am surprised by the fact that the fraction of Communists took the decision to vote “for” the Code. Usually the members of this fraction study all documents in details. At the same time, it is understandable why the socialists voted “against” the CC. Their fraction includes three judges, who could not miss and ignore such great amount of nonsense.

Oleksandr Zadorozhny, deputies’ group “Narodovladdia”, a representative of the President in the Supreme Rada

This Code was worked out during 10 years, so it was the time to adopt it. Why it contains so many absurdities? Because only three persons in the Supreme Rada read the Code. I do not think that any changes will be introduced before 1 January. The Code will be improved later, when the practice will demonstrate the drawbacks of some articles, so it will be reformed for years.

Mykhaylo Pavlovskiy, an MP, the BYT fraction

Of course, the CC must not contain the articles you quoted. Yet, I voted for this Code, since Ukraine needs the CC as such, and the negative moments can be corrected later. In general, such procedure is applied in the Parliament: great laws are approved in the first reading, and later they are analyzed and completed.

Viktor Ageev, a lawyer

It is too early to comment the Civil Code, since it has not come into effect yet. The Code is too raw now, and the work over it will be continued for a long time. Now the excited discussions are hold between the authors of the Code and MPs. One of the main problems of this document is that it was developed as a universal law.

In my opinion, the Civil Code of the Soviet times is, in spite of its obsolescence, more technically perfect, simple and logical, it contains the less number of contradictions and incorrect definitions. By the way, the new Code also includes some obsolete norms, such as the norms on bills and securities.

24 May 2003, Tetiana Chornovil, http://www.antenna.com.ua/main.php

The opinion of the editor of “Informatsiyny bulleten” (Kremenchug) about the appointment of the officer in charge of questions of the freedom of speech and information in the Poltava oblast

Recently the Poltava oblast mass media got the following message:

„To everybody concerned.

Respected sirs!

Mr. Sergey Kuliasov, the editor-in-chief of the newspaper “Kremenchugskiy Telegraf”, informs about his appointment to the post of the officer in charge of questions of the freedom of speech and information in the Poltava oblast (the sitting of the Supreme Rada Committee in charge of the questions of freedom of speech and information of 16 May 2003).

The duties of the officer are: the monitoring of the violations of the freedom of speech and information in the region, passing the information about the facts of impeding the work of journalists to head of the Committee Mykola Tomenko and other activities connected with the protection of the freedom of speech and information.

We propose to turn to the officer in charge of the questions of freedom of speech and information in the Poltava oblast with all questions connected with the violations of the Laws on the press and information, impeding journalists’ activities and violations of the freedom of speech in the oblast.

The address of the office: 50A, Shevchenko St., Kremenchug, the Poltava oblast, 39600.

Phone: (0536) 797149, 791048, e-mail: telegraf@privatka.poltava.ua

Sincerely yours, Sergey Kuliasov, the editor-in-chief of the newspaper “Kremenchugskiy Telegraf”, the officer in charge of the questions of freedom of speech and information in the Poltava oblast.

Tamara Prosianik, the editor of “Informatsiyny bulleten” expressed her opinion about this appointment:

“Respected Mr. Kuliasov!

I learned about your appointment to the post of the officer in charge of the questions of freedom of speech and information in the Poltava oblast from your letter after some delay, so I answer to you only now. It would be dishonest not to familiarize you with my opinion, since I have already expressed it to the members of the above-mentioned committee. And my opinion is rather critical. I hope that your pragmatism will allow you to understand it correctly.

I believe that, before the appointment of such officer, the Committee had to learn the opinion of the oblast journalists. If I were asked about the possible candidate to this post, I would name the journalists (journalists, and not the authorities connected with journalism), who made much for the victory of the freedom of speech in our oblast and continue to work. Among them I would name O. Kulik, the chief-editor of the newspaper “Poltavska dumka”, and L. Kucherenko, the head of the Poltava media-club. The functions mentioned by you, which you are going to fulfill as a new officer, are fulfilled by us for a long time. Media-club regularly publishes the Internet-bulletin, which describes the violations that you are only going to trace.

I reckon that passing to you the functions of the protector of the freedom of speech is UNTIMELY under the conditions existing in the Poltava oblast and in Ukraine as a whole. Maybe, such step would be reasonable later, when the criminal regime of L. Kuchma will be ruined, and the “rules of play” in the society, and in particular in the informational sphere, will become more honest and moral. Yet, now your appointment will not cause any positive results, most probably the results will be negative.

In order to preserve your edition you will have to make compromise (and, judging from the newspaper, you are already doing this). And the experience shows that such self-interested compromise is one of the obstacles in the way of the development of the freedom of speech. How are you going to fight for the freedom of speech in the oblast, where the authorities close the printing shops for publishing the opposition editions, where the fire and architectural services are forced to issue false conclusions, and law-enforcers – to fulfill the political orders? How are you going to influence the state officers of all levels, who prohibit the publication of some editions by the order of the governor? In your letter you wrote that you intended to inform head of the Committee M. Tomenko about the violations in the sphere of the press and information. Yet, whether some edition cannot do this without any “intermediaries”? For what this intermediary is needed? Maybe the goal is to show yourself against this informational background? It does not matter whether it is done for the sake of your own interests or public interests. My critical attitude to your candidature to this important post is based on the following arguments:

1. The attitude of the officer in charge of the freedom of speech to the processes occurring in the informational space must be unbiased. You will not be able to do this, since you head a media holding and a newspaper intended for the masses. This will not allow you to act resolutely, to call a spade a spade, which is very important now for the improvement of the situation with the freedom of speech in the Poltava oblast. Will you tell the truth about the reasons of the fact that some Poltava newspapers that objectively described the situation in the oblast stopped to be published, and other ones, which are still “alive”, must be printed in other oblasts almost illegally? Then, under the existing conditions of the total arbitrariness, the authorities will destroy your newspaper too. Or maybe you will find some other forms of struggle for truth? Yet, any other form, except the publicity, will be inefficient, and you will turn out to be a “player”, who accepted the “game rules” established by the power that does not need the freedom of speech at all.

2. Your activities before the appointment testified that you were not especially interested in the problems of the freedom of speech until this problem became extremely important both inside Ukraine and abroad. It is two very different things: to do something for the freedom of speech incurring anger of power at yourself, or merely to observe the state of the freedom of speech in the oblast and to pass the information to the corresponding agency. The officer fulfilling such functions will be very convenient for those, who do their best to liquidate the freedom of speech in the oblast.

3. And finally I want to say one more thing: you, Mr. Kuliasov is a good manager, a practical man, who will always prefer the profit to any other factors. Such factors as, for example, losses for the sake of justice, self-sacrifice in the name of truth, openness, etc. However, these factors are decisive today, since the freedom of speech is persecuted by the people, who have either the limitless power or the limitless amount of money. And everybody knows what are the sources of such money and power in our state. These people dictate their own rules. Immoral rules. Dishonest and corrupt rules. One can fight against them only with the traits they lack, but, judging from the position of your edition, you lack these traits too.

Thus, in spite of my respect to you, as to a competent official and a successful businessman in the sphere of journalism, and to your newspaper, I may not agree with your appointment to the post of the officer of the Supreme Rada Committee in charge of the freedom of speech and information. I regard your consent to occupy this post as a pragmatic attempt to increase your influence before the coming election. This is just another step towards the close contacts with the Supreme Rada, towards the improvement of your own future.

I think that the discussed post must be occupied by a journalist, who does not adjust himself to the existing level of readers’ needs, but tries to make the readers better – more intellectual, exigent, thinking and well-informed. There must be no prohibited topics, spheres or concepts for this journalist, not only in writing the materials, but also in any other activities (public, business, etc.). Unfortunately, I cannot relate you to such category of journalists, despite your business talent and active position.

Truly yours,
Tamara Prosianik,
The editor of the public-political weekly “Informatsiyny bulleten”

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