Judge Kovaliov: “Turn off your dictaphone!» (Lugansk)
Journalists frequently become the victims of the arbitrariness of judges, who do not permit them to use the audio- and video-recording equipment, thus impeding the fulfillment of their professional activities. At that some judges even do not bother themselves with the observance of procedural norms, which demand to issue the resolution about the prohibition to a journalist to use, for example, a dictaphone.
According to the law on court (Article 9) a judge may not issue such prohibition during an open consideration of a case (although he may prohibit to use the stationary recording equipment). Nevertheless, such practice of judges arbitrariness does exist, and a bright example of this is the document quoted below: the appeal by journalist Ludmila Sokolenko (a participant of this project) to the prosecutor about bringing judge Kovaliov to criminal responsibility.
on the commitment of a crime
On 6 April 2001 I was present at an open court sitting of the Zhovtnevy district court of Lugansk. The court considered the case of Shcherbatiuk and Zverev. Judge A. Kovaliov was the chairman.
I was fulfilling my professional duty, since in March 2003 Vera Gavrilenko, a grandmother of Shcherbatiuk, turned to me with the complaint against the unjust treatment of the accused during the inquiry and pre-trial investigation, and asked me to be present at the trial. Being a journalist, I had to collect the information on the course of the trial.
I was also present at the previous sitting that took place on 31 March 2003. Before the trial I entered the office of judge A. Kovaliov, introduced myself, showed him my journalists ID and said that I was interested in this consideration and the lot of Evgeniy Shcherbatiuk, who had a difficult life, since he was an orphan.
During the trial of 6 April 2003 I stayed all the time in the courtroom and made records in my notebook. After a break, at 1 p.m., when V. Gavrilenko was interrogated as a witness, I used dictaphone for obtaining more complete and reliable information.
Approximately at 13:40 the court secretary noticed that I used the dictaphone and said about this to judge Kovaliov. Judge Kovaliov ordered me to stop the audio recording. He did not perform any procedural actions – he merely cried roughly: “Turn off your dictaphone!»
After this I stood up and asked to explain to me, a journalist, who fulfilled the professional duty, what offence I had committed, if the court did not issue any resolution on the prohibition to audio record the court process or on some other restrictions of the openness of the trial.
Judge Kovaliov explained nothing and demanded to present the dictaphone to the court. I objected that it was my work tool and personal property. Then Kovaliov ordered the guards to take away the dictaphone by force, and I told to the court about the responsibility for impeding the journalistic activities in the accordance with Article 171 of the Criminal Code of Ukraine.
Judge A. Kovaliov ordered me to leave the courtroom. I repeated that I did not violate the order of the court sitting and declared: “I will go away if you would explain me, what offence I committed”. Yet, judge Kovaliov gave no explanations again and repeated his order in the hysterical tone. I had to obey.
Thus, A. Kovaliov, a judge the Zhovtnevy district court of Lugansk, impeded my professional journalistic activities, and his actions contained the features of the crime envisaged by Article 171 of the CC of Ukraine.
I know that I may be called to account for false accusations.
I ask to bring to criminal responsibility judge A. Kovaliov. I ask to interrogate the following witnesses: Vera Gavrilenko (14/3 Shevchenko block, Lugansk, tel. 63-82-89) and Vladimir Goncharov (2/37 Alekseeva block, Lugansk, tel. 53-87-09)
7 May 2003
The most interesting detail in this situation is that the prosecutor was silent till 12 June, and then he informed the journalist (the message was signed on 12 May) that her complaint against the arbitrary actions of the judge was not a sufficient ground for the institution of a criminal case, so he forwarded the complaint (prosecutor Naydysh do not comprehend the difference between a complaint and an appeal!) to the oblast court for taking the appropriate disciplinary measures. Thus, the following rights were violated: a) the right of the participants of the process for open consideration of the case; b) the right of the journalist to obtain and spread the information. These rights were not restored, “because of the absence of criminal event”.
There is another significant fact: the above appeal by the journalist to the prosecutors office was the first case in the oblast, when a journalist tried to bring a judge to responsibility for violating the right for the professional activities.
One more aspect of the non-freedom of mass media is the discrimination of journalists in the access to information.
The practice exists in the Lugansk oblast of the administrative selection of journalists and mass media by the criteria of the level of loyalty to state officials. For example, only “tame” journalists, who never published critical materials, are invited to the official press conferences of the head of the oblast administration.
Such practice is also applied, when various official actions are conducted. For example, when the President of Ukraine visits the oblast, not every journalist has the happy opportunity to approach to the first person of the state. And the right to put questions at the press conferences is rendered only to specially selected loyal journalists, who may ask only the questions prepared and given to them beforehand. Such segregation of journalists in the communication with the guarantor of our rights and freedoms is a common practice. Nobody is indignant with that, and nobody brings actions to court.
Thus, the problem lies in the fact that the journalists, who work in the Lugansk oblast mass media, especially in district ones, work under the conditions of the illegally restricted freedom and are not able to fulfill their public duties properly.
The following conclusions can be drawn from this thesis:
1. We need the professional consolidation of journalists for the protection of the right to obtain, store and spread the information freely.
2. We need the systematic legal support of journalists and mass media by means of regular juridical consultations.
3. We need the systematic informational provision of journalists with legal information – on the experience of human rights protection activities in the media-space, juridical practices, Ukrainian and international experience of struggle for the freedom of speech, legal standards (Ukrainian and international), practices of the European court in the context of Article 10 of the European Convention, etc.
Nikolay Kozyrev, the Chairman of the board of the Public committee for protecting the constitutional rights and freedoms of citizens, Lugansk