In what follows we are presenting the comment of Yuri Denisov, a lawyer of the center for monitoring of the freedom of speech, which works in the oblast with the support of the International foundation “Vidrodjennia”
According to the Law of Ukraine “On executive procedure”, a court decision, which has come into effect, must be fulfilled by the State Executive service (Article 3, item 1).
Article 5 of the Law obliges a state executor to take the measures for the coercive fulfillment of the decisions, to realize the appropriate actions for the fulfillment of the decision, if it was not fulfilled voluntarily. A state executor has the right to enter the rooms and storehouses owned by the debtors or occupied by them, to open these rooms coercively, if needed, in the accordance with the legal procedure (in the presence of witnesses) and to seal up the rooms; to distrain upon the property of a debtor, to confiscate this property, to pass it for storage and to sell it according to the procedure stipulated by law.
The demands of a state executor connected with the fulfillment of court decisions are obligatory for all organs, organizations, officials, citizens and juridical persons on all territory of Ukraine (Article 6).
A state executor, parties, representatives of the parties, experts, specialists and interpreters are the participants of the executive procedure (Article 10). So, the plaintiff may be present during the distrainment of property.
The executor must fulfill the decisions, which are not connected with the sale of property, in two months since the day of obtaining the executive document (Article 25). The parties and other participants of the executive procedure have the right to bring in petitions, to take part in the realization of executive actions and to appeal against the activities (or passivity) of the executor (Article 29).
Representatives of “TTV” declared: “We will complain to court, in particular against the violations during the distrainment procedure. Yet, the main subject of our future complaint is the inadmissible fact that the executive procedure was started, although there was a document in the case materials that confirmed that “TTV” did not own the property, but rented it” (“VG”, No. 29, 18 July 2003). In the case, where the distrained property is not owned by the debtor, the real owner of the property turns to court with the request to leave it out from the distraint. The court must take the decision on this question within 10 days (Article 33).
“The company appealed against the court decision to the higher instance, the cassation was handed to the Supreme Court” (“Ukraina-Tsentr”, No. 500, 18 July 2003). The parties and other persons, who participate in the case, have the right to appeal against the decision of the court of the first instance only in the connection with the violation of the material or procedural right, or of the decision of the appeal court. In this case the debtor handed the cassation against the court decision, which had come into legal force, but not against the executive document. So, the mentioned circumstances may not be a reason for the postponement, suspension or cancellation of the executive procedure. Such reasons are envisaged by Articles 32-35 and 37 of the Law of Ukraine “On executive procedure”. According to the publications in “VG” and “UTs”, the debtors advocates are only going to undertake these measures, so the actions of the state executor were legal in the moment of the beginning of the executive procedure.
The distrained property must passed for storage to the debtor or other persons appointed by the state executor on receipt, which is included in the distrainment act (Article 58). Thus, the delivery of the distrained property for storage to Viktor Schmidt was legal.
As to the work of the TV company, there is no decision about its cancellation, so there are no circumstances that impede the journalists activities. Yet, taking into account the above-mentioned conditions, the founder must discuss the situation with the collective of “TTV” and take the proper measures in the accordance with the statute of the organization (enterprise) and operating laws.
Besides, one must remember that the laws envisage not only the right for the freedom of speech and the creative journalists activities, but also the responsibility of the violation of laws.
The material sent by Nina Ptashkina
On 23 July the shocking news were made public on the evening news of the TV company “TTV”: editor-in-chief of the company Sergey Poluliakh tried to commit suicide: he cut his veins. Fortunately, he did not succeed, and his state is normal now.
(«Golos Ukrainy», No. 137, 25 July 2003)
On 25 July representatives of the Kirovograd oblast organization of the all-Ukrainian left union “Spravedlivost” picketed the Supreme Court of Ukraine, thus protesting against the decisions of the Kamenskiy local court and the appeal court of the Cherkassy oblast, which had recognized some Kirovograd mass media as guilty of spreading false information during the past election campaign. The decisions came into legal force, and the executive procedure began: the state executive service blocked the accounts of the TV company “TTV” and the newspaper “Kirovogradska pravda”; besides, the property of “TTV” was distrained.
We want to remind that the TV company must pay to Vladimir Yaroshenko 300 thousand hryvnas as the compensation of moral damage, and “Kirovogradska pravda” – 50 thousand. In this connection the newspaper declared about the reduction of the number of issues: now it will be published one time per week instead of three times. The editorial board hopes that later it will return to the old regime of work.
Viktor Tokarev, the general manager of the “TTV”, who had returned after the long absence, made a public statement, in which he connected the suicidal attempt committed by editor Sergey Poluliakh with the events around the TV company.
Kirovograd Association “Public initiatives”
General manager of the “TTV” Viktor Tokarev and ex-candidate to the mayors post N. Shvets visited V. Maliarenko, the chairman of the Supreme Court of Ukraine. They asked to accelerate the consideration of the cassations against the decisions of the local and appeal courts after V. Yaroshenkos claim.
The weekly “Ukraina-Tsentr” communicates: “After the talk with Kirovograd representatives Vasiliy Maliarenko ordered to suspend the execution of court decisions concerning N. Shvets and the TV company “TTV”, and to accelerate the consideration of the cassation. The supreme judge of Ukraine is going to scrutinize all cases of the Kirovograd mass media personally and asks “not to equate one judge with the entire Ukrainian justice”.