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21.09.2005 | Viacheslav Yakubenko, Lawyer

Beat up the Jews, save freedom of speech?

   

About 40 percent of xenophobic and anti-immigrant feeling can be attributed to active fostering by the mass media
Vladimir Zorin

  Ukraine is not a country where outbursts of racism, chauvinism, xenophobic attitudes and anti-Semitism have become a widespread and threatening phenomenon. However it could hardly be said that this relative level of tolerance to other ethnic groups is in any way thanks to Ukrainian legislation.  Considering our unlimitedly liberal media laws, the fact that fascist newspapers are not sold in the metro is less about legislative prohibitions, than about lack of demand.  The anti-Semitic or anti-Tatar (the latter primarily in the Crimea) publications which appear from time to time in the socio-political media are seen by many as harmless and amusing. Articles like “Power to God, Ukraine for Ukrainians, Israel for the Jews[1] …” (“Idealist”, No. 4 (79), 2003) or “Mejlis terrorists are committing atrocities while the Crimean authorities do nothing… People have no one to protect them” (“Krymskaya Pravda”, 12 April 2005) elicit no particular reaction. 

How do other countries respond? 

In contrast, an unsuspecting reader might be startled by the reaction of the authorities in western countries to considerably less provocation.  We give just a few typical examples.

  In Denmark a magazine, Dzhersild, was fined for broadcasting an interview with members of a Nazi youth organization.

  In Germany in 1992, a search was carried out and an issue of a magazine confiscated in which the claim was made that the mass murder by the Nazis of the Jews had never taken place.

  In the Netherlands the head of the white Nazi party, Glimmerveen, publicly called for foreign workers to leave the country. The consequences were two weeks in prison and a ban on his standing for election.

  In 1994 in Austria, F. Rebhandl was prosecuted for disseminating a magazine where the existence of the gas chambers in the concentration camps was denied.

  In the same country, in 1997, G. Nachtmann was prosecuted for publishing an article which suggested that the number of victims of Nazi genocide might be deliberately exaggerated.

  In Norway and Sweden, an editor bears personal responsibility for any publication of racist statements, even if he or she does not share these views.

  Even more interesting is the fact that in all of the above cases and dozens similar, the European Commission of Human Rights did not find any infringement of Article 10 “Freedom of expression” of the

European Convention for the protection of human rights and fundamental freedoms (cf., for example, the rulings on the cases: 2128/92 U. Walendy vs. Germany, 11.01.1995; 24398/94 F. Rebhandl vs. Austria, 16.01.1996; 36773/97 G. Nachtmann vs. Austria, 09.09.1998).  After all, the European Convention also states in Article 17: “Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.  Moreover, Article 10 itself of the Convention names the protection of the reputation or rights of others among the reasons for restrictions on freedom of speech. 

  The same position is taken by the Human Rights Committee, referring to Articles 19 and 20 of the International Covenant on Civil and Political Rights, which prohibit “any advocacy of national, racial or religious hatred”, as well as Article 5 (making it illegal “to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein”).

In the country where the mass media are undaunted

  We can compare the above with publications which have gone unpunished in certain Ukrainian media outlets.

  The newspaper “Krymskaya Pravda”, in an article entitled “Stalin deserves the gratitude of Crimean Tatars”, refers to the past World War: “… practically all Crimean Tatars of call-up age took the side of the enemy …, the majority of Crimean Tatars gave their allegiance to the occupying army either directly or at the level of moral support (! – author) (2 February 2005).

  In the newspaper “Idealist”, mentioned above, it is entirely usual to find utterances like”… the time has come to push the Jews out of Ukraine …”, “The Jews are the incurable, pathological, always returning parasites, vampires, criminals of all times and peoples …”, “Every Ukrainian man and woman should understand and help deport one Jew each to Israel” (No. 4 (79) 2003, print run - 5911 copies); “For all peoples among whom Jews are living, the question of their expulsion en masse becomes a question of life or death” (No. 11 (86) 2003, print run of 2,500).

  The magazine “Personnel” and the newspaper “Personnel plus”, which are published by the biggest private higher institute in Ukraine – the International Academy for Personnel Management (IAPM) – are positively teeming with anti-Semitic and xenophobic publications. “The mark of an Orthodox Hasid or Orthodox Jew, as well as of many other Jews, is an absolute hatred of non-Jews” (“Personnel”, 2002, No. 5). “Ukrainians nobly and hospitably granted the Jewish minority equal rights. Instead of being grateful, in the host’s house, the guest behaves arrogantly, aggressively and won’t get off the host’s back” (“Personnel plus”, № 1, 2004).  Recently, the Head of IAPM has even used the pages of his publication to “expose” Viktor Yushchenko’s links with mysterious “Zionist circles”.

  The same educational institution regularly publishes books with the same leanings, such as Yury Bondar’s “Freedom of speech: the Ukrainian yardstick. Academic issue” (Library of the magazine “Personnel”) 2004;  G.G. Mets: “The World Association of Masons: its true nature and aims” (Library of the magazine “Personnel”) 2003); M.I. Senchenko: “Latent structures of world policy.  Outline of conspiracy theory”, 2003; “’Personnel’ against Zionism”. Articles (Library of the magazine “Personnel”) 2002; Vasyl Yaremenko: “Jews in Ukraine today: reality without myth” (Library of the magazine “Personnel”), 2003.  Incidentally, it was actually the reprint of an excerpt from the latter which caused the Shevchenkivsk District Court in Kyiv to suspend publication of the newspaper “Silski visti”[“Rural News”[2]]. It is baffling that no one registered objections about IAPM itself, even though the Institute had financed the publication of the provocative article as advertising.

  Cynicism knows no bounds since IAPM itself instantly reacts to all publications and television features which accuse the institute of anti-Semitism, and lodges law suits demanding that inaccurate information be publicly refuted.  What is even more absurd – IAPM often wins such cases.  Reputable people – academics, public figures and politicians cannot prove that their opinion of IAPM has grounds for existing.  It is possible that the recent ruling of the European Court of Human Rights in the case “Ukrainian Press-Group vs. Ukraine” will force certain Ukrainian judges to pay heed to Article 47-1 of the Law of Ukraine “On information” and to understand that opinions and arguments of people are not facts, but value judgments which it is impossible by definition to prove or disprove.

  Some civic organizations defending freedom of speech consider that all anti-Semitic and xenophobic pronouncements are fully within the framework of the legal system. After all, Article 34 of the Constitution, they say, does not allow for restrictions on the right to freedom of opinion and expression in order to prevent incitement to racial or national hostility.

  Here one should simply mention that Article 10 of the European Convention for the protection of human rights and fundamental freedoms also contains no such restriction. Nonetheless, the European Commission, as well as the European Court, have emphatically rejected the appeals of all those convicted for making racist or anti-Semitic pronouncements. After all, grounds for restriction of freedom of expression may be for the protection of the reputation or rights of others, as in Article 10 of the European Convention, and Article 34 of the Constitution of Ukraine.  However surprising this may seem to some, Jews and Crimean Tatars are also people with their own rights and reputation.

The Code to come down heavy on anti-Semites

  It is indeed true that it is no easy task to compel others to respect these rights. In general, three options are available.

Option 1 – the Criminal Code.  Article 161 of the Criminal Code envisages “for deliberate actions designed to provoke national, racial or religious hostility…” punishment in the form of a fine of up to 50 minimum wages, or corrective work for two years, or limitation of liberty for 5 years, with the loss of the right to be appointed to certain posts for 3 years, or without this.

  From time to time, in cases which receive a lot of public attention, criminal cases are initiated under this Article, mainly where there pressure placed, either from the public or from State Deputies. However it is virtually impossible to get anybody actually convicted of this crime.  From the subjective level, the crime involves direct intent, with the particular aim of stirring up ethnic hostility in the country or in a specific region, of denigrating the honour and dignity of representatives of particular ethnic groups. What this means is that in court the author of the provocative article must state that he or she intended to stir up ethnic hostility.  Furthermore, as a general rule, admission of guilt by the accused cannot be the sole proof in a criminal case.  That is, there needs to be something added, for example, a note in the accused person’s own handwriting with content like: “Chief, your task has been carried out, and a massacre provoked in the “Cotton Club”.  It is thus clear that the criminal case option has no chance of success.

Option 2 – Civil Law.  Article 18 of the Law of Ukraine “On Printed Mass Communication Media (the Press) in Ukraine” allows for the suspension of publication of print media by a court in cases where Article 3 § 1 of the law is infringed, in particular, “for stirring up racial, ethnic or religious hostility” (however among lawyers there is no agreement as to whether “suspension of an issue of the print media” denotes the suspension of the publication as a whole, or just a prohibition on publishing one specific issue of it).

  This option has on occasion worked. In December 1995, on the petition of the Ministry for Press and Information, an issue of the newspaper “Oppositsiya” [“Opposition”] was stopped. Exactly five years later, the newspaper “Dzherzeltsya” [“Source”] met the same fate as a result of a claim lodged by the Association of National Cultural Organizations of Ukraine.  The State Committee for Nationality and Migration Affairs has demanded that the courts suspend issues of “Idealist”, “Personnel” and “Personnel Plus”.  A lot has already been written, including in this article, about the Inter-ethnic Anti-fascist Committee and the newspaper “Silski Visti”. 

  However any such case will sooner or later reach the Supreme Court of Ukraine. The latter, in rulings on “Dzherzeltsya” and “Oppositsiya” back in 2003 stated: “the absence at the time of the court’s review of the case of a conviction for committing criminally punishable actions as a result of using the printed means of information render the court unable to make a decision to suspend this printed means of information”.

  This means that option 2 can only be applied after the successful conclusion of option 1 which in its turn is not possible. 

  Option 3 – administrative measures. There is an executive body in Ukraine which has the duty to try to prevent outbursts of ethnic hostility – the State Committee for Nationality and Migration Affairs mentioned already.  Thus, in all cases involving xenophobic or anti-Semitic publications, it was specifically to this committee that one needs to turn.  The Committee has three possible ways of responding:

1  It can appeal to the law enforcement agencies to launch a criminal investigation under Article 161 of the Criminal Code.  There have already been around a dozen such applications over issues of “Idealist”, “Personnel” and “Personnel Plus”.  Next option 1 has to take over, and this, as mentioned, is not possible.

2  The Committee may apply to the court to stop an issue of a publication, as it has done in the case of the three publications mentioned in paragraph 1, that is, use option 2.  However, given the position of the Supreme Court, this option cannot be successful without the prior use of option 1 which has no hope of succeeding.

3  The State Committee for Nationality and Migration Affairs can at least approach and caution media outlets advocating ethnic hostility. In Russia, for example, last year around 50 publications received such cautions from the Ministry of Printed Materials.  However, in Ukraine this method of cautions is unlikely to be effective since there is no executive body which can close a publication or in any other way punish for stirring up ethnic or racial hostility.

In such a situation, only one question remains.

Where is the solution?

Several possible ways out of this catch 22 situation suggest themselves.

1  It is theoretically possible to suggest amendments to Article 161 of the Criminal Code, specifically

the removal of the words “Deliberate acts aimed at …” After all, as the notorious V. Yaremenko claims, at least in the Verkhovna Rada of the third session, there were 136 Jewish Deputies (i.e. there should be support for this).

However in crimes of this nature direct intent is still mandatory (this was the same in Article 66 of the previous version of the Criminal Code).

2  The introduction of administrative responsibility for the denigration of national pride. The State Deputy Ishtvan Gaidash registered a Draft Law No. 5446 which envisages amendments to Article 173-2 of the Administrative Offences Code (in fact there is already an Article with this number in the Code).  If the amendments are adopted by the Verkhovna Rada, “the inclusion in media outlets, on the Internet, or the making public in any other fashion or distribution of printed, audio-, audiovisual and other materials, in which national pride and dignity is denigrated, or offence is caused to people on the grounds of their religious convictions, or where ideas of special status, superiority or inadequacy of people on the basis of their race, ethnic group or religious beliefs are advocated” shall be punished by a fine from 1 to 150 minimum wages before tax.  It is suggested that authority to impose such taxes be given to bodies dealing with nationality and migration affairs. In this case the procedure for making those guilty (administratively) liable would be significantly simplified.

3  It would be possible to apply special legislation. One does not need to be a political scientist to predict that certain political forces will try to kindle xenophobic (and particularly anti-Crimean) moods in the run-up to the elections to the Verkhovna Rada and bodies of local self-government. It may be that both electoral laws will still be corrected, however the norm about the prohibition on stirring up ethnic, racial, religious hostility during election campaigning will certainly remain.

4  There remains some sort of hope in moral or ethical norms.  The limitation on the use of offensive utterances about certain races and ethnic groups introduced by the Principles of the Australian Press Council (Article 8), the Code of Procedure of the Commission on Press Complaints in the United Kingdom, the Code of the Press Council of Germany (Sections 9 and 11), the Ethical Code of the Norwegian Press Association, etc.

The Crimean Association of Free Journalists have drawn up a Declaration of Basic Principles for the work of journalists in multi-ethnic societies where, in particular, they state that: “A journalist must be aware that his or her lack of professionalism, bias, disinformation may become the cause of discrimination, intolerance, violence, suffering and even lead to people’s death”.

That is, a great deal depends on the personal position of each individual journalist. In the final analysis, the preservation of inter-ethnic harmony in Ukraine as a whole, and in the Crimea in particular, in the face of provocation is an achievement of, among others, journalists. The plan which a foreign power put into force in Transdnistria, Southern Osetiya and Abhaziya, has failed in the Crimea.



[1]  In all excerpts from “Idealist” cited here, a term for Jewish people is used which is nowadays generally considered to be offensive and avoided in both Ukrainian and Russian (translator’s note).

[2]  The newspaper’s title could be more closely translated as  “Village news”, but given it’s print run of almost half a million daily, this was avoided as being associated with something small and related to a specific village. (translator’s note)

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