Kharkov. Law of Ukraine “On election of the President of Ukraine” in the context of activities of mass media and distribution of agitation materials.

Consideration of practical fulfillment of the Law “On election of the President of Ukraine” reveals numerous violations of legal norms and factual absence of punishment for such violations.

The danger also exists of not-legal punishment of those, who try to fulfill the demands of this Law.

Such pressure is exerted upon mass media by the organs of state power, and in Kharkov and Kharkov oblast – by the organs of local self-government, which is a violation of item 2 part 4 of Article 3 (Equality of rights and possibility of participation in election process are guaranteed: … 2) by prohibition of interference of organs of state power and local self-government in election process, except the cases envisaged by this law) and item 1 part 2 of Article 11 of the Law (Election process is carried out on the basis of: 1) legality and prohibition of illegal interference into this process).

Although part 1 of Article 60 reads that the pre-election agitation with use of mass media of all forms of property should be conducted with observance of the principle of equal conditions and according to the order envisaged by this Law, but even now, before the end of the election campaign, one can state that the principle of equal conditions is violated during this election, as well as a number of norms of the Law.

Besides, the use of printed editions of the organs of state power and organs of local self-government for pre-election agitation in favor of one of the candidates also violates item 2 part 4 of Article 3 and items 6, 7 part 2 of Article 11 of the Law (Election process is carried out on the basis of: … 6) freedom of pre-election agitation, equal opportunities of candidates to President’s post as regarding the access to mass media; 7) unbiased attitude of organs of executive power, organs of local self-government, enterprises, establishments and organizations, their heads, other officials to the candidates to presidency).

So, the editions issued by the organs of local self-government in Kharkov and the Kharkov oblast more than once published the appeals of the Prime Minister to citizens, which were not subjected to part 3 of Article 58, since they were not official messages about the activities of candidates to President’s post connected with the fulfillment by them of their service duty, envisaged by the Constitution of Ukraine and laws of Ukraine, and contained photographs.

At the same time, such practices directly violate part 4 of Article 64, which declares that, during election campaign, state and communal mass media, their officials and creative workers may not agitate for or against the candidates to President’s post, assess their election programs or give preference to them in any form in the materials and features, which were not envisaged by the agreements concluded in accordance with part 9 of Article 61 and part 6 of Article 63 of this Law. In the case of violation of this demand the work of these mass media can be temporarily ceased by court decision after the appeal of the Central election commission or corresponding territorial election commission.

Although the communal mass media of Kharkov and the Kharkov oblast more than once have given preference to V. Yanukovich, the Central election commission does not consider necessary to suspend the activities of these mass media.

Besides, the announcement of the Pension fund about the rise in pensions may be also considered as indirect agitation on the side of the organs of state power. In particular, this announcement reads: “Government of V. Yanukovich (author’s underlining) issued the decision about the raise of pensions to the level of cost of living”.

It should be noted that, although Article 6 of the Law envisages the conduction of free election and creation of the conditions for free forming of people’s will, and prohibits deception as a method of influence on the position of voters (part 2 of Article 6), and part 4 of Article 13 obliges mass media to elucidate the course of election campaign impartially, but during the current election these norms mainly remain only good intentions, and their infringers (either candidates to presidency or mass media) are not, in fact, brought to responsibility for such actions.

Part 2 of Article 6 also prohibits the use of coercion, threats, graft and other actions impeding free forming and free expression of will by voters.

Besides, there are the facts of threatening the businessmen, who place the agitation in favor of Yushchenko in their shops.

One of more glaring examples of the actions of the organs of state power aimed at impediment to free forming of will of voters is the incident that occurred on 11 September at the entrance to Kharkov from the direction of Kyiv, at the road post “Pesochin”. At about 20:30 road militia stopped a truck “MAZ”, which transported a run of social-political weekly “Bez tsenzury”. The factual reason of the detention was the picture in the newspaper: placard of V. Yanukovich photographed through a fence grid. After long discussions and appeals the truck was returned, but that happened only in the morning of the next day.

Under the threat of dismissal, which is applied to the workers of budget sphere (medics and teachers), they are made to distribute agitation materials for V. Yanukovich, to conduct the so-called polls and talks with the aim to incline their interlocutors to vote for the mentioned candidate and to spread the so-called “mandates of a voter”. There were cases, where the agitation materials for Yanukovich were spread by workers of post offices.

One of the aspects of using mass media during the election is connected with the authority of Central election commission to carry out the enlightenment work connected with Presidential election (item 7 part 2 Article 25), but this is not, in fact, conducted. In this connection one may say that the CEC is not interested in enlightenment of citizens about the basic principles and order of the conduction of election, its role in the life of the society and state, procedure of voting, rights and duties of voters and, what is the most important, as it was demonstrated by the course of the election campaign, the mechanisms of control over the observance of laws on election of the President of Ukraine. However, the absence or lack of information about peculiarities of the laws on election of the President of Ukraine is a prerequisite for possible falsifications.

Part 1 of Article 58 states that pre-election agitation may be realized in any form and by any means, which do not contradict the Ukrainian Constitution and laws of Ukraine. Yet, we have the information, according to which Kharkov law-enforcers more than once detained distributors of mass media and agitation materials in favor of candidate to presidency V. Yanukovich under the pretext of checking dateline of the distributed materials. After some time the detained were released.

Although part 8 of Article 59 of the Law reads that the local organs of executive power and organs of local self-government must, not later than 120 days before the day of voting, install stands and bulletin boards for placement of agitation materials by the candidates to President’s post, such boards and stands are practically absent in Kharkov.

As to the pre-election TV debates between the candidates (Article 62 of the Law), it is obvious that too great number of candidates makes the conduction of these debates under the conditions stipulated by the Law (in particular, limitation of the number of participants) uninteresting both for TV organizations and for TV and radio audience.

Production and distribution of printed agitation materials, which contain no data about the enterprise that have printed these materials, about the run and the persons responsible for publication, are practiced very widely (part 7 of Article 59 of the Law reads: “printed agitation materials must contain the data about the enterprise that have printed these materials or the information that the materials were printed with use of the equipment owned by the corresponding candidate to President’s post or the party, as well as their run and information about the persons responsible for publication”, and part 16 of Article 64 prohibits to distribute the materials, which do not contain the above-listed data). This norm is merely declarative and results in the situation, when the persons responsible for publication try to conceal the very fact of printing. There were many cases of distribution of such printed materials in Kharkov and the Kharkov oblast. Some of them contain the appeals on behalf of opponent to kindling of interethnic enmity and propaganda of war, which violate part 3 of Article 64 of the Law. Yet, even in the cases, where the persons, who made and distributed such materials, became known to law-enforcing organs, they were not brought to responsibility. For example, on 18 August 2004 the activists of Kharkov regional headquarters of V. Yushchenko disclosed the leaflets of national-fascist contents, discrediting Yushchenko, and detained, together with militia patrol, the persons, who pasted these leaflets. Naturally, the data about run, publisher and responsible persons were absent. It appeared later that the detained persons were the activists of V. Yanukovich’s headquarters (service certificate No. 505).

Thus, it should be noted that the level of observance of the Law of Ukraine “On election of the President of Ukraine”, in particular, in the part concerning the activities of mass media, production and distribution of agitation materials, is extremely low. In our opinion, this is connected with several moments:

1)  use by the candidate from power of administrative resource (organs of state power and local self-government), involvement of the workers of budget sphere in distribution of his agitation materials;

2)  dependence of mass media on their owners;

3)  existence of large quantity of declarative norms and absence of adequate mechanisms of responsibility for violation of norms of the Law;

4)  direct neglect by power organs (and their officials) of demands of the law, selective application of law to the candidates from opposition.