How Lugansk authorities fought against the TV channels “5th channel” and “Era”
As it is known, on 24 November 2004 the Lugansk regional council issued decision No. 15/1, item 2 of which prohibited the regional communal enterprise “Lugansk cable television” to transmit the telecast of the TRC “Era” and “5th channel”.
As early as six months ago such decision would arouse a storm of indignation in independent mass media of the region. Today everybody has been silent. Everybody pretended that nothing serious happened, that the principles of the freedom of speech were not abused brutally and demonstratively.
However, there are other elements of civil society in Ukraine, for example, public human rights protecting organizations. A complaint was handed to a court against the decision of the regional council.
According to part 2 of Article 55 of the Constitution of Ukraine the right is guaranteed to everybody to appeal to court against decisions, activities or passivity of the organs of state power, organs of local self-government and state officials.
In compliance with this constitutional norm, a complaint against decision No. 15/1 of the Lugansk regional council was handed to the Leninskiy district court of Lugansk. The complaint contained the demand to acknowledge the second item of this decision as illegal and violating human rights, and to cancel it. Besides, it was offered to consider the complaint within 10 days, as it was envisaged by law, and to pass the court decision to the Supreme Council of Ukraine.
According to part 5 of Article 78 of the Law “On local self-government”, if court acknowledges a decision of local council as violating citizens rights, then the Supreme Council has the right to appoint the pre-term reelection of this council. The situation in the Leninskiy court is worthy of going down in history of justice. The complaint was considered within three days, the claimant was not even informed about that. As a result of juridical labor of Themis servants a surprising ruling on rejection of the complaint was born.
The ruling reads that the complaint was handed in the connection with creation of obstacles for obtaining of information by watching the “prohibited” TV channels. Yet, since, in the opinion of the court, the information is an article of trade, and the commodity relations are regulated by the civil code, the claimant should fight for his rights handing not a complaint but a writ. Besides, the suit should be brought not against the regional council, but against the enterprise “Lugansk cable television”, and the regional council would be only the third party. So, it turns out that the suit cannot be brought against the regional council, which adopted the illegal decision, but against the TV company, which only fulfilled this illegal decision.
Moreover, in the opinion of judge Ostrovskaya, who have issued the ruling, this agrees with the norm of Article 55 of the Constitution.
We respect the authority of justice, so we will not comment this court ruling. Yet, we must turn to the General Prosecutors office of Ukraine with the request to give legal assessment of this situation from the viewpoint of Article 375 of the Criminal Code, which envisages responsibility for issuing of deliberately unjust ruling.
However, it is possible that the complaint handed to the court have already had some effect: on 11 December the regional council cancelled its illegal decision of 24 November. The Lugansk cable TV company can now transmit the “orange” channels.
The reaction of the National council in charge of TV and radio broadcasting was the following:
“The National council turns to the General Prosecutors office with the request to react to the facts of taking decisions by some organs of local executive power and organs of local self-government on the non-sanctioned prohibition of transmission of features of some TV and radio organizations”, reads the resolution of the National council of 13 December.
The National council asks the General Prosecutors office to take the proper measures connected with exceeding the authorities, concerning the influence on informational space, by power organs.
The National council also ordered to its representatives in regions to collect, up to 17 December, the information about termination of transmission of features of some TV companies in cable networks during the election campaign. In particular, representatives of the National council must collect the information about termination of transmission in cable networks of “5th channel”, TRC “Era”, “Radio-Era” and TRC “Ukraina” in the Donetsk, Kirovograd, Poltava, Mykolayiv, Dnepropetrovsk and Zakarpatska regions. The conclusions and propositions of regional representatives must be passed to the National council up to 17 December.
The National council warns the operators of cable television that if the court would acknowledge the switching off as illegal, the National council would punish the infringers. “Such actions will be considered as violation of the conditions of license with disciplinary consequences provided by Ukrainian laws”, points out the decision of the National council.
As it was communicated before, the meeting of deputies and heads of state administration of the Donetsk region decided to recommend to the operators of cable television to stop the transmission of the TV channels “Era” and “5th channel” in the region. Yet, later the regional council cancelled this decision.
On 11 December the Lugansk regional council cancelled the decision on prohibition of transmission of TV channels “Era” and “5th channel”.