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22.05.2004

Right to a Fair Trial when Official Secrets are Involved Mar.1999

   

On 6 October , 1998 Pecherskiy district court of the city of Kyiv considered the claim of the deputy of the General Prosecutor and ruled to stop publishing the newspaper ‘Politika’. It was done because the newspaper published the article written by the editor-in-chief Oleg Liashko and titled ‘Spy novel-2’, which contained information making state secrets. The court decision was based on the expertise by a state expert in state secrets. Since Article 46 of the Ukrainian law ‘On information’ prohibits the distribution of such information and Section 1 of Article 3 of the law ‘On mass media (press) in Ukraine’ states that mass media may not be used for the publication of such information, Nikolay Zamkovenko, the chairman of Pecherskiy district court, satisfied the claim.

It should be noted that Section 5 of Article 42 of the law on the press frees the editorial board and the author from the responsibility of divulging the secrets protected by the law, if this information was not obtained in an illegal way. In January 1998 the USS investigation department informed Mr. Liashko that they would not start a criminal case on divulging state secrets, since they did not see corpus delicti in his actions. However, the court did not take this into consideration.

The court ruled to stop publishing the newspaper without representatives of this newspaper. Journalists learned that their newspaper was banned only on 8 December, two months later the court ruling. Certainly, this court session did not try to account objectively of all circumstances of this case; the equality of sides in the trial, any contestibility of sides and elementary right for defense — all this toys of democratic procedure were disregarded.

The decision of the court said that a representative of the defendant did not come to the court session for the second time, although he was informed in the proper time. Since the exact location of the defendant was unknown, the court found it possible to consider the case ‘with the last known location of the defendant’. Judge Zamkovenko directed the subpoena to the juridical address of the newspaper, while its actual address was indicated in any newspaper and could be taken from there.

On 12 January 1999 Piotr Shevchuk, the chairman of the SC collegium in civil questions, protested against the ruling of Pecherskiy district court, so the case had to be reconsidered. On 9 February Piotr Shevchuk suspended the decision of banning the newspaper. However, the first issue of ‘Politika’ in 1999 appeared only on 12 March, since the publishing house ‘Pressa Ukrainy’, that prints all Kyivan newspapers, refused to print ‘Politika’ and editorial board found another printing house, which agreed to print the newspaper, with difficulty.

The case of banning the newspaper according to the claim of General Prosecutor’s office will be reconsidered in Moskovskiy district court.

Parallelly the same judge Zamkovenko considered the case accusing Oleg Liashko in slander and misuse of power for publication in ‘Politika’ four other articles. In these articles he allegedly defamed the acting (at the moment of publication) Prime Minister Vasiliy Durdinets, who is now the head of the National Bureau of investigations; he also allegedly defamed General of militia Ivan Grigorenko, the head of the Odessa Directorate of interior, and one more inhabitant of Odessa.

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