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10.03.2006

The Pechersky District Court’s Resolution of 10.02.06

   

Case №2-а-334/06

2006

RESOLUTION

IN THE NAME OF UKRAINE

On 10 February 2006 the Pechersky District Court in Kyiv sitting as a panel of judges consisting of:

The Chairperson  O.V. Umnova

and judges:  O.V. Kafidrova

  T.V. Ostapchuk

and with the Registrar:  P.A. Skopenko

Having reviewed in an open court hearing in Kyiv the administrative suit lodged by the bloc of Natalya Vitrenko “Narodna opozytsiya” [“People’s opposition”], the Progressive Socialist Party of Ukraine and the Party “Rusko-Ukrainian Union” (RUS”) against the Minister of Internal Affairs, Yury Vitaliyovych Lutsenko, a third party – the limited liability company (LLC) “The Editorial Office of the newspaper “Fakty”, a journalist of the newspaper “Fakty” Anatoly Havrysh, the Internet publication “Ukrainska Pravda”, the Internet publication “Censor.NET”  - calling for the recognition as unlawful of the omission, lack of authority and actions of a State official of the executive, a media outlet and business enterprises, -

ESTABLISHED THAT:

The claimant represented by V.D. Tsymalyuk had lodged an administrative suit with the court against the Minister of Internal Affairs, Y.V.  Lutsenko, the LLC  “The Editorial Office of the newspaper “Fakty”, a journalist of the newspaper “Fakty” Anatoly Havrysh, the Internet publication “Ukrainska Pravda”, the Internet publication “Censor.NET”  - calling for a recognition as unlawful of the omission, lack of authority and actions of a State official of the executive, a media outlet and business enterprises.  He substantiated his demand on the grounds that on 27.12.2005, during a direct (online) conference on the Internet publication “Ukrainska Pravda”, the respondent made public negative information about the political, business and personal qualities of candidates for the office of State Deputy from several electoral factions, including those from the Bloc of Natalya Vitrenko “Narodna opozytsiya” .  As a result of this a resolution of the Central Election Commission (CEC) from 5.01.2006 №73 declared that the above-mentioned actions contained elements of pre-election campaigning.  The same resolution of the CEC drew the attention of the Ministry of Internal Affairs, Y.V. Lutsenko to the need for unswerving adherence to the requirements of Ukrainian electoral legislation. However Mr Lutskenko, ignoring the CEC Resolution, did not take measures to withdraw his pre-election campaigning from the media outlets and Internet publications which continued to publicize his interview and statements which had been classified by the law as one of the forms of pre-election campaigning. For example, the interview was published in the newspaper “Fakty” in №3 (2040) from 6.01.2006, and placed on the Internet publications “Ukrainska Pravda” and Censor.NET.  He considers that the Minister of Internal Affairs of Ukraine did not have the right to take part in pre-election campaigning and by his “omission” allowed the dissemination of negative information about candidates for the office of State Deputy of Ukraine from the Bloc of Natalya Vitrenko. He asks that the omission of the Minister of Internal Affairs of Ukraine, Y.V. Lutsenko, in not taking measures to put a stop to the running of  pre-election campaigning about the political, business and personal qualities of State Deputy candidates from the bloc of Natalya Vitrenko “Narodna opozytsiya”, the Progressive Socialist Party of Ukraine (PSPU) and the Party “Rusko-Ukrainian Union” (RUS”) after the passing of Resolution №73 of the Central Election Commission from 5.01.2006 be declared unlawful; that it be recognized that the holder of State authority, the Minister of Internal Affairs of Ukraine, Y.V. Lutsenko did not have the competence (authority) to discuss with the public, pro-government or opposition parties the political, business and personal qualities of State Deputy candidates from the bloc of Natalya Vitrenko “Narodna opozytsiya”, the Progressive Socialist Party of Ukraine and the Party “Rusko-Ukrainian Union” (RUS”), nor to act as an expert on these issues; that the actions of the Minister of Internal Affairs of Ukraine, Y.V. Lutsenko, the Editor of the newspaper “Fakty” and its journalist Anatoly Havrysh, the Internet publications “Ukrainska Pravda” and Censor.NET be declared unlawful in having carried out pre-election campaigning by way of discussing the political, business and personal qualities of State Deputy candidates from the bloc of Natalya Vitrenko “Narodna opozytsiya”, the Progressive Socialist Party of Ukraine and the Party “Rusko-Ukrainian Union” (RUS”) with the participation of a State official of the executive; that the Minister of Internal Affairs of Ukraine, Y.V. Lutsenko, the Editor of the newspaper “Fakty” and the Internet publications “Ukrainska Pravda” and Censor.NET be legally bound to refrain from any pre-election campaigning which does not comply with electoral legislation of Ukraine; that the  court legally bind the editorial office of the newspaper “Fakty” to publish and place at their electronic address http://www.facts.kiev.ua, and the Internet publications “Ukrainska Pravda” and Censor.NET to place on their electronic addresses, http://pravda.com.ua and http://censor.net.ua, respectively, the concluding part of the Resolution of the court within 5 days of its coming into force; that the court legally bind the Minister of Internal Affairs of Ukraine, Y.V. Lutsenko to provide the court with copies of the protocols on elucidating the rights of candidates for the office of Deputy from the bloc of Natalya Vitrenko “Narodna opozytsiya” suspected of having committed crimes, as well as evidence that candidates for the office of Deputy from the bloc of Natalya Vitrenko “Narodna opozytsiya” were on police wanted lists; that the Internet publications “Ukrainska Pravda” and Censor.NET  be legally bound to provide the court with documents confirming that they are on the Single State Register of Businesses and Organizations of Ukraine (SSRBOU).

At the court hearing, the representatives of the claimant according to procedure in the Code of Administrative Justice (CAJ) changed their demands and asked that the omission of the Minister of Internal Affairs, Y.V. Lutsenko, in not taking measures to put a stop to the running of  pre-election campaigning about the political, business and personal qualities of State Deputy candidates from the bloc of Natalya Vitrenko “Narodna opozytsiya”, the Progressive Socialist Party of Ukraine and the Party “Rusko-Ukrainian Union” (RUS”) after the passing of Resolution №73 of the Central Election Commission from 5.01.2006 be declared unlawful; that it be recognized that the holder of State authority, the Minister of Internal Affairs of Ukraine, Y.V. Lutsenko did not have the competence (authority) to discuss with the public, pro-government or opposition parties the political, business and personal qualities of State Deputy candidates from the bloc of Natalya Vitrenko “Narodna opozytsiya”, the PSPU and the Party “Rusko-Ukrainian Union” (RUS”), nor to act as an expert on these issues; that the actions of the State official of the executive, the Minister of Internal Affairs of Ukraine, Y.V. Lutsenko. be declared unlawful in having carried out pre-election campaigning by way of discussing the political, business and personal qualities of State Deputy candidates from the bloc of Natalya Vitrenko “Narodna opozytsiya”, the Progressive Socialist Party of Ukraine and the Party “Rusko-Ukrainian Union” (RUS”); that the Minister of Internal Affairs of Ukraine, Y.V. Lutsenko, be legally bound to refrain from engaging in any further pre-election campaigning without adherence to Ukrainian electoral legislation.

D.B. Horbac, representing the respondent, rejected the suit and asked that the court not satisfy its demands. In justifying this position he stated that according to CEC Resolution №73, to which the claimant had referred, the Minister’s attention had been merely drawn to the need to unswervingly comply with Ukrainian electoral legislation, and the Resolution had not legally bound him to not carry out pre-election campaigning. He added that the respondent, as a citizen of Ukraine, had the right to express opinions and discuss issues which concerned the political, business and personal qualities of candidates for the office of State Deputy on condition that such actions did not fall into the category of “pre-election campaigning”, which had been the case in the given instance.  He considered that the statements of the Minister to the Mass Media could not be viewed as activity for the purpose of encouraging voters to vote for or against any participant of the electoral process, and that an interview constituted merely answering the questions of a journalist.

The representative of the third party, the limited liability company (LLC) “The Editorial Office of the newspaper “Fakty”, M.V. Lebedeva supported the position taken by the claimant’s representative and asked that the claim be rejected.  She supplemented this stand by stating that in its activities the respondent and journalists were in the first instance guided by the provisions of the Laws of Ukraine “On Printed Mass Communication Media,” and «On information» and had in no way violated the rights or the interests of the claimant. The Department for Public Relations of the MIA of Ukraine had informed the LLC ““The Editorial Office of the newspaper “Fakty” about the trip of the Minister of Internal Affairs around regions of Ukraine, during which the latter would be giving interviews, and since the journalist A. Havrysh was responsible within the editorial office for covering issues connected with crime, it was he who had been sent to take an interview.

A. Havrysh, who had been informed by the court as required about the day, time and place of the review of the case, did not appear at the court hearing.  According to the LLC ““The Editorial Office of the newspaper “Fakty”, Mr Havrysh is on sick leave.

The third parties – the Internet publication “Ukrainska Pravda” and the Internet publication “Censor.NET” did not send their representatives to the court hearing, having been notified by telex in accordance with the requirements of the CAJ of Ukraine.

The Panel of Judges, having listened to the explanations from the parties and studied the material of the case deem it possible to consider the case in the absence of the third parties on the basis of the available evidence in the case, and to satisfy the claim, on the following grounds.

From the material of the case it appears that the respondent on 27.12.2005 during a direct (online) conference on the Internet publication “Ukrainska Pravda”  made public negative information about the political, business and personal qualities of candidates for the office of State Deputy from several electoral factions, including those from the Bloc of Natalya Vitrenko “Narodna opozytsiya”

A resolution of the Central Election Commission from 5.01.2006 № 73 declared that the above-mentioned actions contained elements of pre-election campaigning.  The same resolution of the CEC drew the attention of the Ministry of Internal Affairs, Y.V. Lutsenko to the need for unswerving adherence to the requirements of Ukrainian electoral legislation.

In issue № 3 (2040) from 6.01.2006 the newspaper  «Fakty» published an interview with the Minister of Internal Affairs of Ukraine, Y.V. Lutsenko, in which under the heading “Tête-à-tête encounter” on page 6 it was stated: “In Vitrenko’s candidate list the entire circle is represented around the Russian businessman Kurochkin who is wanted for questioning, as well as people who are suspected of involvement in the activities of an organized criminal gang”,  and “I assert my right to inform society which parties’ and blocs’ candidate lists hold the names of individuals of interest to the MIA”.  The given information was circulated by the  Internet publications “Ukrainska Pravda” and “Censor.NET”.  In accordance with Part 1 of Article 112 of the Law of Ukraine «On the election of State Deputies of Ukraine”, a participant in the electoral process may appeal against the actions or omissions of a State executive body, a body or local self-government, a business, institution, institute or organization, their officials or functionaries which are related to the non-fulfilment of the duties imposed upon them by the law, or to the unlawful interference into the activity of electoral commissions or their members, as well as to their non-compliance with the requirements of the law on issues of pre-election campaigning.

According to Part 1 of Article 66 of the Law of Ukraine «On the election of State Deputies of Ukraine” “Pre-election campaigning shall be deemed to be engaging in any activity for the purpose of encouraging voters to vote for or against a particular participant in the electoral process. Pre-election campaigning may take any forms and be carried out using any means which are not in contravention of the Constitution of Ukraine and the laws of Ukraine.  In Article 66, Point 8 Part 2 of this Law such forms are , in particular, recognized as being public assessments of the activity of parties (blocs) taking part in the electoral process or their candidates for Deputy.

According to Part 2 of Article 19 of the Constitution of Ukraine, State executive bodies and bodies of local self-government and their officials are obliged to act only on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and the laws of Ukraine.

The court has established that the respondent was appointed to the office of Minister of Internal Affairs of Ukraine by a Decree of the President of Ukraine on 27..09.2005 № 1368/2005 and is a member of the Cabinet of Ministers, the highest body in the system of  State executive bodies.

The powers of the Minister of Internal Affairs of Ukraine, who is in charge of the entire police force and is a holder of State authority, are set out in the Law of Ukraine “On the Police”, by the Decree of the President of Ukraine from 17.10.2000 № 1138/2000 in the version from 6.04.2004, which was approved by the “Provisions on the Ministry of Internal Affairs of Ukraine”.

The panel of judges has found that the respondent, in violation of the requirements of the Constitution of Ukraine, the Law of Ukraine «On the election of State Deputies of Ukraine”  did effectively carry out pre-election campaigning through his public negative statements about the political, business and personal qualities of candidates for the office of State Deputy of Ukraine, included in the candidate lists of the electoral bloc of Natalya Vitrenko  “Narodna opozytsiya”, the Progressive Socialist Party of Ukraine and the Party “Rusko-Ukrainian Union” (RUS”). 

The panel of judges does not accept the argument given by the respondent’s representative which stressed that the Minister of Internal Affairs of Ukraine, in giving an interview, was expressing his opinion as a Ukrainian citizen, since from the explanations given by the representative of the LLC “The Editorial Office of the newspaper “Fakty” it would appear that the initiator of the interview was the Department for Public Relations of the MIA of Ukraine, and that the journalist was to talk specifically to the Minister of Internal Affairs of Ukraine. Furthermore, the respondent as a State official and a holder of State authority in his interviews imparted information that a citizen of Ukraine without any contact with the structure of the MIA of Ukraine would not possess, whereas the respondent in view of his State authority and powers was in possession of such information.

In its assessment of the evidence gathered in connection with the case, the panel of judges considers that the negative utterances made by the respondent created a certain impression with voters regarding candidates for the office of State Deputy from the electoral bloc of Natalya Vitrenko  “Narodna opozytsiya”, the Progressive Socialist Party of Ukraine and the Party “Rusko-Ukrainian Union” (RUS”).  Article 71 of the Law of Ukraine «On the election of State Deputies of Ukraine”  establishes restrictions on the carrying out of pre-election campaigning for the elections of State Deputies of Ukraine. In accordance with points 2 and 3 of Part 1 of this Article,  one of the said restrictions is the prohibition on State executive bodies, and the officials and functionaries of these bodies, taking part in pre-election campaigning, failing cases when the relevant State official or functionary is a candidate for the office of Deputy.

The panel of judges has thus determined that the respondent – the Minister of Internal Affairs of Ukraine is a holder of State authority and is not a candidate to the office of Deputy, and does not have the right to take part in pre-election campaigning since this is prohibited by Article 71 of the Law of Ukraine «On the election of State Deputies of Ukraine”

In accordance with Article 177 of the CAJ of Ukraine, namely with the specific features of court rulings on the outcome of reviews of cases connected with the electoral process or the running of a referendum and their appeal, the court, having established the violation of legislation on the elections or on a referendum, shall determine in its resolution the means of defence of the violated rights and interests, and also the procedure for rectifying all consequences of these violations in accordance with the law.

Under these circumstances, the panel of judges considers that the suit lodged by the electoral bloc of Natalya Vitrenko  “Narodna opozytsiya”, the Progressive Socialist Party of Ukraine and the Party “Rusko-Ukrainian Union” (RUS”) should be satisfied in full.

On the basis of the above, governed by the Constitution of Ukraine, the Law of Ukraine «On the election of State Deputies of Ukraine”,  Articles .2, 4, 6, 7, 10, 17, 19, 49, 50, 76, 104, 158, 159, 160, 161, 163, 167, 172, 174, 177, 178 of the CAJ of Ukraine, Part 5 of the Final and Transitional Provisions of the CAJ of Ukraine, the panel of judges –

HAS RESOLVED

To satisfy the suit lodged by the bloc of Natalya Vitrenko  “Narodna opozytsiya”, the Progressive Socialist Party of Ukraine and the Party “Rusko-Ukrainian Union” (RUS”).

To declare unlawful the omission of the Minister of Internal Affairs of Ukraine, Yury Vitaliyovych. Lutsenko, in not taking measures to put a stop to the running of  pre-election campaigning about the political, business and personal qualities of State Deputy candidates from the bloc of Natalya Vitrenko “Narodna opozytsiya”, the Progressive Socialist Party of Ukraine and the Party “Rusko-Ukrainian Union” (RUS”) after the adoption by the Central Election Commission on 5.01.2006 of Resolution №73.

To recognize that the holder of State authority, the Minister of Internal Affairs of Ukraine, Yury Vitaliyovych. Lutsenko, did not have the competence (authority) to discuss with the public, pro-government or opposition parties the political, business and personal qualities of State Deputy candidates from the bloc of Natalya Vitrenko “Narodna opozytsiya”, the PSPU and the Party “Rusko-Ukrainian Union” (RUS”), nor to act as an expert on these issues.

To declare unlawful the actions of the State official of the executive, the Minister of Internal Affairs of Ukraine, Yury Vitaliyovych. Lutsenko. in having carried out pre-election campaigning by way of discussing the political, business and personal qualities of State Deputy candidates from the bloc of Natalya Vitrenko “Narodna opozytsiya”, the PSPU and the Party “Rusko-Ukrainian Union” (RUS”).

To legally bind the Minister of Internal Affairs of Ukraine, Yury Vitaliyovych. Lutsenko, to refrain from engaging in any further pre-election campaigning without adherence to Ukrainian electoral legislation.

This Resolution may be appealed in the Appeal Court of the city o Kyiv through the Pechersky District Court in Kyiv within two days of the day of its pronouncement.

 

The Panel of Judges

The Chairperson  (signature)  O.V. Umnova

and judges:  (signature)  O.V. Kafidrova

  (signature)  T.V. Ostapchuk

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