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Human rights in Ukraine – 2006. VIII. Freedom of Expression

   

[1]

2006 was characterized by a lack of systematic reforms in the area of freedom of speech and an increase in the number of conflicts between the authorities and the media.  A further very worrying trend was the absence of any adequate legal response to incidents where journalists were beaten, attacked or harassed. Criminal proceedings into such incidents were either not instituted, or where they were, the investigation was not carried out efficiently and produced no result.

According to information from the National Television and Radio Broadcasting Council of Ukraine, as of 1 November 2006 in Ukraine  there were 1268 television and radio companies (hereafter TRC), of which 647 were television companies, and 524 radio, with a further 97 both television and radio broadcasting. 

In breach of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms Ukraine has a permission-based system for registering the print media and information agencies.

The Ministry of Justice during 2006 reviewed 1,893 applications for registration or re-registration of printed media outlets, of which 1,048 with a nationwide or foreign circulation were registered (/re-registered); as well as 11 information agencies. 69 printed outlets had their applications turned down. During the same period, territorial offices of the Ministry registered (/re-registered) 882 printed publications with local circulation.[2]

Overall in the country there are more than 23 thousand periodical publications, of which 13 are local outlets.

The lack of an electronic register of printed media outlets and information agencies remains a problem. The register of television and radio companies maintained by the National Television and Radio Broadcasting Council і is openly available on the Internet.

 

1.  Review of changes to legislation[3]


For the media 2006 was a year of great expectations and disillusionment, since the much hoped-for radical modernization of legislation regulating the media, freedom of speech and of information failed to materialize.

No changes were introduced to legislation making it possible to find out the real owners of media outlets, especially television channels and radio stations. Nor was effective control imposed over the concentration of media outlets in the hands of one owner or family, nor anti-monopoly restrictions on the information market in accordance with Council of Europe recommendations. The laws “On the procedure for media coverage of the activities of public authorities and bodies of local self-government in Ukraine” and “On government support for the media and social protection for journalists” were not abolished although these effectively create benefits for State-owned media outlets. The Verkhovna Rada proved unable to adopt laws to provide safeguards for the work of the mass media, to ensure freedom of information in Ukraine and make the activities of the public authorities more transparent and open to the public. It failed to pass, for example, the Law “On public television and radio broadcasting” (new version); the Law “On information” (new version); the Law “On privatization of media outlets in Ukraine” and others. The President did not heed the criticism from media specialists about the Law “On television and radio broadcasting” from 20 January 2006 nor calls on him to use his power of veto.

If one compares the changes to legislation on the media and freedom of information last year with those considerable, if not always successful, moves in 2005, then the results, both in quantitative and qualitative terms can be described as far more modest.  Whereas in 2005 the Verkhovna Rada passed twelve laws in these areas, including six new laws or new versions, and six introducing amendments to existing laws, in 2006 only 7 draft laws reached law stage, and of these two laws only indirectly touch on the media.

The Fourth [pre-election] term of the Verkhovna Rada adopted the following laws:

1) “On Television and radio broadcasting” from 01.03.2006;

2) “On amendments to the Code of Administrative Offences, the Criminal and Criminal Procedure Codes on liability for violations of electoral rights” from 23.02.2006;

3) “On the State Service for Special Communications and Protection of Information” from 23.02.2006.

The Fifth term of the Verkhovna Rada adopted these laws::

1) “On Ratification of the Additional Protocol to the Convention on cyber-crime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems” from 21.07.2006;

2) “On amendments to Article 25 of the Law “On publishing” from 02.11.2006;

3)  “On Holodomor 1932-1933 in Ukraine” from 28.11.2006;

4)  “On fundamental principles for the development of Ukraine’s information society for 2007 – 2015” from 09. 01.2007.

Let us consider whether any of these changes could pose a threat to freedom of speech and information in Ukraine.

The most animated debate among specialists and journalists was over the Law “On Television and Radio Broadcasting”.  Many specialists believe it to have significant flaws. The main shortcomings and inherent dangers were analyzed in depth in last year’s Report “Human Rights in Ukraine – 2005”. Application of the law has already highlighted the following shortcomings:

-  Imperfect procedure for appointing a Head of the National Television and Radio Broadcasting Council of Ukraine [NTRCU] – the current head was not appointed as set down in the law at the submission of parliament.  The public council attached to the NTRCU is still not working, although it was created in December 2006 (with the makeup also arousing a lot of criticism.

-  Ambiguity with regard to the quotas for domestic production and for those in the Ukrainian language[4], the fact that this was not coordinated with other legislative norms or with international agreements which Ukraine is a signatory to, led to these provisions effectively not being followed.

-  The licensing procedure was virtually stopped. According to the law, licensing is carried out only on the basis of an approved Development Plan for the television and radio broadcasting realm. There was no such plan for a long time, and the document which finally emerged bears absolutely no resemblance to a development plan since it lacks simple information about the number of existing radio frequencies used for television and radio broadcasting, or a plan on how these are to be used.  Effectively, therefore, there is no development plan, with the plan developed by the Council having been rather to fulfil a formal requirement of the law. In fact, therefore, the licensing procedure remains unpredictable, non-transparent and incomprehensible to those involved in this market.

-  Television and radio companies adhered to the formal requirements of the law and approved editorial charters, however this proved yet another profanation since the documents have not become a means of protecting editorial policy against owners of the media outlet and do not protect journalists. Their content , approved by the owners, establishes declarative provisions echoing general norms of legislation while providing no mechanisms for protection.

-  The norm prohibiting foreign legal entities from founding television or radio companies [TRC] has only confused the situation with media ownership, since foreign entities have now simply been transferred to the second generation of owners, or their control has been concealed in some other way. An example of this is the ownership structure of the television channel 1+1, where Central Media Enterprises Ltd, a company well-known in Europe, is not officially registered as one of its owners. Yet the CME website states that the company has a “60% economic interest” in 1+1. This demonstrates the total ineffectualness of such bans and the inability to achieve government policy on medial pluralism.

-  The need for serious revision of this law is clear to all.

There was active discussion during 2006 of possible ways of privatizing State and municipal medial outlets, this referring both to the printed press and Internet outlets.

In implementation of Prime Minister’s Instruction №2571/11/1-06 from 3 February 2006 (over the President’s Decree of 20 January 2006 No. 39 “On the Action Plan Regarding the Performance of Ukraine’s Obligations Pursuant to its Membership in the Council of Europe”), the Ministry of Justice prepared a draft law “On reforms to State and municipal printed media” which was, however, subjected to serious criticism. In April it was presented and first debated, then through the year numerous discussions of the draft law were held in at regional level.

By 29 November, three draft laws prepared by the Ministry of Justice, the Public Council on Freedom of Speech and Information, and the National Union of Journalists, respectively, were awaiting discussion in parliament. The main areas of disagreement are the ways and speed of privatization.[5]

Meanwhile National Deputies A. Shevchenko, S. Kupil and L. Mordovets on 14 December 2006 registered Draft Law № 2738 “On editorial freedom in the State and municipal press during the process of privatization”. This, however, has not been considered by parliament (as of 1 June 2007). The draft is a considerable step forward in that process. Acknowledging the difficulties of privatization, the National Deputies propose:

- prohibiting public authorities or bodies of local self-government from becoming the founders or co-owners of media outlets, while the existing media outlets can continue in their present state until new legislation is adopted on privatization of the media;

- establishing guarantees of editorial independence of State and municipal printed media outlets through special procedure for dismissing the chief editors with the consent of the editorial staff; establishing certain guarantees of editorial freedom; and setting out rules of procedure for publishing information from the authorities.

A fundamentally new law was that “On the State Service for Special Communications and Protection of Information” from 23 February 2006. The explanatory note to the Law states: “This draft law has been drawn up in fulfilment of the President’s Decree “On observance of human rights during investigative technical operations” from 07.11.05 № 1556/2005 and the subsequent Instruction from the Cabinet of Ministers from 14.11.05 № 59391/1/1-05. These required that proposals be agreed and submitted in the legally established manner to the Cabinet of Ministers on creating a Service for Special Communications and Protection of Information as a central authority with special status. Its main functions will be to implement government policy in the area of protecting State-owned information resources in communication networks; to ensure the functioning of a State system for government communications, a National system for confidential communications, and cryptographic and technical protection of information.  .. The adoption of this law will make it possible to define the functions and powers of the State Service for Special Communications and Protection of Information of Ukraine and to ensure control over its activities in accordance with the Law “On democratic civil control over the Military organization and law enforcement agencies of the country”, as well as by the President and Verkhovna Rada.  The creation of a State Service for Special Communications and Protection of Information is carried out as part of the reform of the Security Service of Ukraine [SBU] in order to free the latter of inappropriate functions”.


However it is not all so upbeat if one looks at the Law within the context of Ukrainian reality since, as Friedrich the Great stressed, bad laws are not bad in the hands of good enforcers and vice versa: when the enforcers are rotten then even the best laws are harmful. The question arises: will this newly created central authority with special status not become an instrument for wiretapping and surveillance by the authorities over those dissident voices??[6]

We consider, furthermore, that certain provisions of this law will encourage unlawful restriction of access to information on the activities of the public authorities and bodies of local self-government.

For example, one of the main functions of the State Service for Special Communications and Protection of Information is “to take part in forming and implementing government policy on protecting State-owned information resources”. According to Article 1, State-owned information resources are to be understood as “information held by the State, the need to protect which is defined by legislation”. However human rights organizations have on a number of occasions pointed out that restriction of access to information, in accordance with Article 34 § 3 of the Constitution can be imposed by a law, and not by legislation[7]  Furthermore only individuals or nongovernmental legal entities may possess confidential information since according to Article 19 of the Constitution “Bodies of state power 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”. This means that they cannot impart information at their own will and under conditions they have set down. Yet Ukraine’s only legislative body has not only failed to bring Articles 3 § 7, 30 § 3, and 46 § 2 of the Law “On information” into line with international standards and Article 34 § 3 of the Constitution, but have actually exacerbated the discrepancies by adding the concept of “State-owned information resources” to the Law “On the State Service for Special Communications and Protection of Information”. 


One can with justification assume that hiding behind the need to protect State information resources, the State Service for Special Communications and Protection of Information will in fact restrict access to information of public importance.

Another law which could adversely affect access to information is the law “On the Cabinet of Ministers” passed on 21 December 2006. According to Article 3 § 4 of this law, “all decisions of the Cabinet of Ministers must be made public except for acts containing confidential information.” This is despite the fact that in accordance with Part VII § 2 of Recommendations No. 2 made by the Council of Europe’s  Committee of Ministers “On access to official documents”, “If a limitation applies to some of the information in an official document, the public authority should nevertheless grant access to the remainder of the information it contains…” The given provision does not, therefore, comply with international standards on freedom of information since it is the specific information which should be kept secret and not the entire document. Furthermore, one can assume that the acts which contain information on restricted access will at the same time define people’s rights and duties and Article 57 § 3 states that “Laws and other normative legal acts that determine the rights and duties of citizens, but that are not brought to the notice of the population by the procedure established by law, are not in force”. Thus, as well as ignoring international standards, Article 3 § 4 also runs counter to a fundamental principle enshrined in the Ukrainian Constitution.


Journalists reacted with some wariness to the Law “On amendments to the Code of Administrative Offences, the Criminal and Criminal Procedure Codes on liability for violations of electoral rights” adopted just prior to the parliamentary elections. The Law envisages sanctions for infringing procedure and restrictions on pre-election campaigning, as well as during the preparation for and holding of a referendum with the use of the mass media. There are also sanctions for preparing or disseminating printed pre-election campaign material which does not contain information about the printing outlet, its print run, details about the person responsible for the issue and the rules of procedure for including campaign material or political advertisements or posting them in places prohibited by law. Specialists from the Institute for Mass Information mention the following:: “One should note that some articles impose liability for actions which are not prohibited by the law on the elections. For example, Article 212-9 of the Criminal Code imposes liability for “giving an advantage in information television or radio broadcasts, or in the printed press, to any candidate, political party (bloc), their pre-election programmes by the owners, officials or staff, or creative employees of a media outlet”.

Not everybody was happy with the Law “On Holodomor 1932-1933” [the Famine]  since according to Article 2: “Public denial of Holodomor 1932-1933 in Ukraine is an affront to the memory of the millions of victims of Holodomor, denigration of the dignity of the Ukrainian people and is unlawful”.  The law could thus be legal grounds for establishing future administrative and / or criminal liability for denial of Holodomor 1932-1933” Some politicians and journalists asserted that this constituted restriction on freedom of speech. One cannot, however, agree with such an argument. After all, in many countries of the European Union, for example, Germany, Austria, France and Belgium, denial of the Holocaust is a crime and in 2006 the French parliament also made it a crime to deny the genocide of the Armenian people under the Ottoman Empire during the First World War. The given law only establishes historic justice and should in no way be considered a way of stifling freedom of speech.

A clear distinction between freedom of speech and propaganda of hatred, discrimination or violence against any individual or against any individual or group of individuals, based on race, colour, descent or national or ethnic origin, as well as religion is established by the Law “On Ratification of the Additional Protocol to the Convention on cyber-crime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems”.  The ratification of this Protocol creates a legislative guarantee for the protection of such universal values as tolerance, freedom and respect for the rights of others and was an unquestionably positive event in 2006. However other legislation needed to implement these norms was not adopted. The Law does not, for example, stipulate the grounds and extent of liability for such actions.

There was a complicated story with the adoption of the Law “On fundamental principles for the development of Ukraine’s information society for 2007 – 2015”  Passed at the beginning of 2006 by the fourth session of the Verkhovna Rada, the law was vetoed by the President because the fundamental principles of government policy with regard to introducing and extending the use of automated systems [informatizatsiya]  had also been envisaged in the Laws “On a national programme of informatization” and “On a Strategy for a National programme of informatization”. The Law “On fundamental principles for the development of Ukraine’s information society for 2007 – 2015” was adopted a second time by the fifth [post-election] session of the Verkhovna Rada on 19 January 2007.  It would be difficult to disagree with those specialists in the information sphere who say that the law is of a declarative nature.

The law gives a definition of information security, stipulates the principles which those drawing up information legislation should be guided by. It should be noted that the law has reanimated the idea of a need for drawing up and adopting an information code. It envisages that such a code would contain sections on the principles of electronic trading; legal protection of the content of computer programmes; improved protection of intellectual property rights, including authors’ rights when placing and using works on the Internet; protection of databases; distance learning; telemedicine; provision by public authorities and bodies of local self-government of information services via the Internet to individuals or legal entities; commercial secrets, etc. On the basis of the proposed concept for an information code, one can thus conclude that its main aim will be to regulate information relations of a private nature and will not touch on issues of access to information about the activities of public authorities and bodies of local self-government. In view of this, the use of the term “code” would seem strange, as is the trend towards regulating privacy.

In addition, some National Deputies, main representing the Party of the Regions, have proposed that parliament reinstate criminal liability for defamation, this not being in accordance with standards of the Council of Europe and OSCE on freedom of speech. Parliament has, however, not begun reviewing this issue.

 

2.  Observance of the rights of journalists and the media

 

Regrettably, it must be stated that 2006 was not a year of achievements for the government as regards media and journalists’ rights. One should particularly stress violations of freedom of speech and press freedom at local level.

Generalized data on infringements of media and journalists’ rights

 

Type of infringement

2002

2003

2004

2005

2006

Journalists killed or missing 

3

4

0

0

1[8]

Arrests and detentions

-

-

8

2

0

Beatings, assault, intimidation

23

34

47

24

14

 

Killings, beatings and other forms of physical violence against journalists

There were no cases during the year where journalists were killed, however there was one unexplained disappearance.  Overall, according to figures from the Institute of Mass Information, at least 14 journalists suffered physical assault or harassment during the year. Most cases of physical pressure on journalists were recorded during the elections to the Verkhovna Rada in March 2006. One should however note that the majority of these cases were probably more methods adopted by individual regional politicians or organized criminal gangs.[9]

It must be noted that 2006 did not bring conclusions to most of the prominent cases involving murdered journalists.

 The murder of Georgy Gongadze remains unsolved. Endless court hearings which began in January 2006 have continued into 2007. At these hearings a huge number of witnesses are giving testimony, countless items of material evidence are investigated and various scenarios for the course of events are considered. It all appears, however, more like a trial for the sake of a trial, than a real attempt to solve the case. It was not for want of a reason that the Secretary General of the Council of Europe Terry Davis said that the CE’s greatest disappointment had been over the lack of real progress in solving Gongadze’s murder and that this would adversely affect Ukraine’s reputation abroad.

There has been no significant progress into the investigation of the killing of Volodymyr Yefremov[10]. Procrastination in the criminal investigation has led to delays in submitting the case before the court. A considerable delay was caused in 2006 due to the carrying out of yet another forensic examination. 

The single high-profile case which resulted in a court verdict was that into the death of Ihor Aleksandrov[11]. After more than six months of court hearings, the Luhansk Regional Court of Appeal convicted 5 men of involvement in the killing of the journalist and sentenced them to periods of between 2 and 15 years imprisonment. Ihor Aleksandrov’s family was also awarded compensation of 400 thousand UAH. In June 2007 the Supreme Court upheld the original sentences.

Incidents involving physical coercion of journalists have continued. One of the most notorious examples was that of the beating by National Deputy from the Party of the Regions faction Oleh Kalashnikov of journalists from TV Channel STB. The incident became the subject of a review by Deputies at a plenary session of the Verkhovna Rada which resulted in a Temporary Commission being created on the obstruction of the journalists’ professional activities.

It should be mentioned that the Pechersky District  prosecutor’s office is carrying out a criminal investigation initiated on 14 July 2006 over obstruction of a journalist’s legitimate professional activities with respect to the STB journalists Sytnyk and Novosad. However the pre-trial investigation into this criminal case has still not ended and it is most likely that it will never be concluded for a number of political and legal reasons. The STB journalists recognized as victims in the criminal case explained that on 12 July they were at a political rally at the invitation of the Party of the Regions. After taking an interview from Kalashnikov, they walked through the tent city towards people who were receiving vouchers to get food. Kalashnikov came up to the journalists and asked them to stop filming saying that they were in a Party of the Regions area. The journalists showed him their Verkhovna Rada accreditation and the Party of the Regions invitation.  An acrimonious dialogue ensued which the cameraman began filming. Oleh Kalashnikov realizing that they were being filmed began demanding the video cassette. When the journalists refused to give it to him, he grabbed the cameraman by his T-shirt, and pulled him towards him. At that moment some of those with the Deputy tried to pull the cameraman’s video recorder away from him, others dragged the woman journalist away from the cameraman who was hit with something on the head and the cassette was taken out of the video recorder.[12]

The Verkhovna Rada passed a Resolution on the case in which they condemned Oleh Kalashnikov’s behaviour however they did not state that the behaviour bore the hallmarks of obstruction of a journalist’s professional activities.

National Deputy Dmytro Shentse who is also in the Party of the Regions faction on 3 June 2006 beat a cameraman Andriy Avdoshin for filming him during a session of the Kharkiv City Council. The law enforcement authorities refused to initiate a criminal inquiry maintaining that there were no elements of a crime.

One must also mention the case involving the Chief Editor of the newspaper “First Crimean” and correspondent for the France Press Agency Liliya Budzhurova. On 1 March 2006 there was an arson attempt on her home. According to Ms Budzhurova, during the night into 1 March, around 1.15 a.m. petrol was poured over he doors to the garage of her home.

"They virtually set fire to my home since the garage is in the basement. I was at work when it happened, and the car wasn’t in the garage. They poured petrol over the doors of the garage counting on it busting into flames and causing the car to explode, and the family would have been sent up in smoke”, she recounts. She added that members of her family who were in the house at the time had seen the flash, and had been able to put it out in time.

Budzhurova links this incident with her professional activities. “It was a clear arson attach. Since I don’t have any personal enemies, and I’m not a businesswoman or a politician, this can only be connected with my work”.

She says that in the last issue of her newspaper they had published a list of names of candidates for the post of Crimean Deputy who according to police records had criminal records. “We were the only Crimean newspaper who published the list”, she said.[13]

The Central Department of the Crimean MIA launched a criminal investigation into the arson attack on Liliya Budzhurova’s home on 1 March. However the case did not result in a court case although in October 2006 testimony was taken from the driver of a Crimean parliamentary deputy O. Melnyk which stated that the latter had issued an order to an unidentified person to “teach the journalist a lesson” for her article in the newspaper “First Crimean”. However O. Melnyk himself was released after the Prosecutor General terminated proceedings into the case.”[14]

Yet another incident was linked with the Chief Editor of the Publishing House “Stolichniye Novosti” [“Capital news”] Volodymyr Katsman. He was assaulted on 8 April 2006 at around 8 in the evening. The assailants waited for him in the entrance to his block which has a lock with a code. They beat him with wooden bats. “They didn’t take money or my passport, or my leather bag and Swiss watch”, Mr Katsman told MіGnews.com.ua. Katsman was taken to the neurosurgery section of a Kyiv hospital with numerous injuries to his head and arm.

Publisher of the newspaper Vadim Rabinovych stated that the assault on Katsman was linked with the latter’s criticism of anti-Semitic publications of the Interregional Academy of Personnel Management [MAUP]. Mr Katsman told a correspondent from the Institute of Mass Information that during the first two weeks the police had kept him informed about the course of the information, but since then there had been no information.[15]

On 3 June in Kherson the home of Serhiy Yanovsky, journalist from the newspaper “Kievskiye vedomosti” [“Kyiv news”] was set alight. Petrol was poured into the window of the flat from an upper floor, and blocked the doors to the flat with a bar.[16]  Serhiy Yanovsky is well-known for his sharply critical articles in the central and local press about public officials of the local authorities and the head of the law enforcement agencies.

In August 2006 two assailants beat Ihor Mosiychuk, the editor of the weekly “Vechirny Vasylkiv” [“Evening Vasilkiv” following articles in the newspaper about public officials linked with the distribution of land in the area.

  We would stress that journalists from Internet publications also suffered from attempts at physical pressure. For example, on 26 June 2006 Serhiy Romanenko, editor of the Internet publication “Reporter” was hospitalized after being beaten up. He was found unconscious in the city centre. It is worth noting that he is the author of a number of publications about the activities of leading politicians in the country, in particular the Mayor of Uzhhorod. A few days before this attack, the site had published hard-hitting material about the aspirations and attempts of the Mayor Serhiy Ratushnyak to strengthen his influence in a number of local organizations and political parties, including the Socialist Party and BYuT [the Bloc of Yulia Tymoshenko, etc.[17]

As mentioned previously, there was one disappearance recorded in 2006 which may or may not be linked with the journalist’s professional activities. On 20 February 2006 journalist from Anatoly Kachurynets from the Striy newspaper “Homin Voli” (“Sound of Freedom”) left home and never returned. Although the journalist ran the newspaper section on criminal activities, the police say that there is no evidence that the disappearance was linked with his professional activities. The Western Information Corporation (an Internet publication) wrote that according to some reports, Mr Kachuryents had left a note for his wife.  The latter has refused to discuss the disappearance.[18]

In 2006 a number of cases were also reported of harassment of journalists or members of their family, with this being directly linked with their journalist activities. One example would be the threats against the life of the editor of the Luhansk newspaper “Serdyta gazeta” [“Angry newspaper”] S. Sorokin, made after he was savagely beaten by three men unknown to him in 2005. Sorokin believes that these threats were linked to the fact that the main feature of the next issue of the newspaper was to be about a bribe of half a million UAH allegedly taken by a Luhansk official.[19]

 

Censorship and other forms of pressure exerted on the media

In May 2006 journalists from the newspaper “Za vilnu Ukrainu” [“For a free Ukraine”], which had been coming out irregularly for a while, made a public statement in which they said that the suspension of issue of the newspaper was linked with the political motives of Lviv politicians.

At the end of October, following the death of the head of “Ecolan” (who had invested in the newspaper) some “interesting people” turned up at the editorial office. They offered shares to the newspaper staff at a good price. The shares were bought by Volodymyr Oliynyk, a resident of the Ivano-Frankivsk region and employee of the oil refinery at Nadvirne. He assured them that the newspaper would work as normal and that the entire editorial team would be working on it. However this was a stand in and the real owner was to turn up soon afterwards.

The editor Olha Osoba soon left the newspaper. Yury Shveda began coming to the editorial office. He was at the time working on the image of the candidate for National Deputy Petro Dyminsky (party “Eci+25”) and mayoral candidate Bohdan Fedoryshyn (also from “Eco+25”).  He brought in a new editor – Yevhen Hutzul. According to the journalists, Hutzul began immediately, on behalf of Dyminsky, issuing instructions to “do a hatchet job” on the Governor of the Lviv region Petro Oliynyk and the mayoral candidate Andriy Sadovy. This was February 2006. When it became clear that the party “Eco-25” would be defeated at the elections, the editor, as member of that party, according to the journalists told them behind the scenes that the newspaper needed to be “sent packing”. In March it became a weekly. At the same time (17 March), Dyminsky’s friend and partner both in business and politics, Bohdan Fedoryshyn died in mysterious circumstances. The newspaper’s staff appealed to the President and government bodies to check out the information in their statement and see whether there had been any unlawful actions by the owner.[20]

The Head of the Lviv Regional Council Mykhailo Sendak publicly put pressure on journalists from the regional television company “Lviv TV”, demanding access to broadcasting time. He also demanded that the television company take programmes off air.

At the same time in the Ivano-Frankivsk region, editors of city and district newspapers are concerned about pressure on freedom of speech exerted by the local authorities. They spoke of this in a statement “Freedom of speech cannot be stifled!” issued by the region’s city and district newspapers that have district councils and district administrations among co-founders of their outlets.

The statement reads: «Pressure from the authorities on freedom of speech in the Ivano-Frankivsk region has taken on a new form. After flagrant interference by officials in the editorial policy of the newspapers “Kolomiysky visnyk”, “Zlahoda” (Tlumach), “Dzdony Pidhirya” (Kalush), an assault against freedom of speech has been made in Kosiv also. The local lords – the heads of the district administration and district council – have imposed censorship in the district newspaper “Hutsulsky krai”. They have prohibited the editor from publishing appeals to deputies which are supposedly defamatory, or undermine the authority of the local public bodies, and have thus infringed the Constitution and Ukrainian laws on the media.”

On 23 May 2006 the editor of the newspaper “Hutsulsky krai” Petro Havuka, as well as making public the statement of protest from other journalists, announced a preliminary hunger strike in protest against encroachments on freedom of speech. This was suspended the following day.[21]

Another example of censorship, this time by the management of “Radio Crimea” was alleged by Andriy Ivashko and Serhiy Mokrushin, the authors and presenters of the only youth programme on State radio “Budmo”” [more or less “Cheers!”) which is broadcast in the Ukrainian language. According to their statement made public in April 2006, on Thursday 30 March 2006, at the initiative of the chief editor of the department for broadcasts, R. Semenya, the acting Deputy General Director of the State television and radio company “Crimea” for radio broadcasting E. Rezevych took off the air material which Andriy Ivashko and Serhiy Mokrushin  had prepared on the elections in Ukraine and Belarus. Since there proved to be nothing available to replace the feature removed, that programme of “Budmo!” went on air in a shorter version.

Pressure was also exerted on printed outlets via the tax authorities. As an example one can cite the pressure on the “Holding Company “Blitz – Inform” which publishes the popular business weekly “Business” which on many occasions has criticized the position of the tax authorities with respect to some aspects of running a business. On 26 January 2006 the State Tax Administration announced the head of the supervisory council of “Blitz – Inform” Serhiy Melnychuk wanted for questioning.

According to a report from the tax administration, the investigation department of the Kyiv tax department is carrying out a criminal investigation into alleged tax evasion by the head of the “Blitz – Inform” council Serhiy Melnychuk.  Melnychuk himself did not appear to give evidence. However according to the General Director of “Blitz – Inform” “at the present time the investigation against Serhiy Melnychuk has been terminated and the persecution against him by the tax [police] stopped”. The General Director of “Blitz – Inform” maintains that the criminal investigation against Melnychuk and the persecution by the State Tax Administration of the holding company are linked with critical publications directed at the tax authorities in the newspaper “Business”, as well as with the topic of “monopolization of the printing market”.[22]

 

Obstruction of journalists in their work

Cases continued in 2006 where journalists were obstructed in carrying out their work. This was seen, for example, in demanding that journalists get permission for filming public places where there should be no such permits, or in journalists not being allowed to press conferences and meetings of the public authorities and bodies of local self-government.

This can be illustrated by the situation where journalists were not allowed to attend sessions of the Crimean Parliament. This State body passed a resolution to hold the first session behind closed doors, without journalists’ presence. 68 out of the 98 deputies presented voted for the resolution. The proposal had come from one of two initiative groups at present in the Crimean Parliament, whose members are representatives of the Bloc  “For Yanukovych!”, the opposition Bloc “Ne tak!”  [«Not so!”], the party “Soyuz” [“Union”] and the Bloc of Nataliya Vitrenko.

Deputy from the Bloc of Yulia Tymoshenko spoke out against this: “The Regulations (of the Crimean Parliament) do not have higher force than the Law on information”, he stated. At the same time, the representative of the legal service of the Crimean Parliament supported the removal of the journalists.  “I would ask all outsiders to leave”, representative of the Bloc “For Yanukovych!”, Serhiy Tsekov announced.

According to the Prosecutor for the Autonomous Republic of the Crimea Viktor Shemchuk, the attempt to remove the press was unlawful. The Prosecutor stressed that holding parliamentary sessions behind closed doors is possible only during discussions related to national security or State secrets. “The election of speaker to the Crimean parliament is not a secret and such a decision was unwarranted”.

After the break, the Head of the Crimean Election Committee Mr Kondratenko invited the press to take their places in a specially designated part of the parliamentary hall..[23]

After this case, on 7 December, the Speaker of the Crimean Parliament A. Hrytsenko introduced illegal restrictions on the number of journalists accredited which led to a protest action by more than fifty Crimean journalists. Following this, the accreditation rules were again eased, with each media outlet being allowed to have two accredited journalists, and with other limitations on sources for receiving information and rulings for filming in parliament being changed.

The Mayor of Donetsk Oleksandr Lukyanchenko without any warning on 11 September restricted journalists’ access to the City Council meeting.

One could also cite the situation which arose in the Ivano-Frankivsk City Council. The Deputies there in May 2006 granted the Mayor’s press secretary the exclusive right to decide at his own discretion whether or not to admit journalists to council meetings. During a discussion of new regulations for the city council, the proposal was initially to give journalists accreditation for the meetings. Instead of this, the right was set out for the press secretary to deprive reporters of their accreditation. The formal grounds could be an infringement by the press representative of legislation. For the first time in the city the risk arose that a list “of chosen” would emerge. According to the regulations, there are no clear criteria for accreditation, it will be carried out according to the wishes of those holding electoral office.[24]

There were a lot of cases reported during the elections on interference in journalists’ work. For example, in March 2006,  Edward Bubnyak, Secretary of the Lviv City Territorial Electoral Commission threw a journalist from “Hal-infor” out, maintaining that journalists wishing to cover the work of the Commission needed to have extra documents confirming identity and that a journalists’ pass was not serious enough. However he was unable to justify his decision through any legislation. He added that he didn’t want “all and sundry” turning up at the Commission. On 25 March the City Electoral Commission refused to provide “Hal-info” journalists with a list of candidates for the city council or the list of mayor candidates. Oleh Shcherbakov, in explaining his actions said that he had even sacked a clerk of the Commission for giving out such information to journalists.[25]

 

Interference in the work of the media and of journalists

A whole string of incidents took place during 2006 involving pressure from the local authorities on municipal media outlets. There was especially fierce confrontation in cases where the position of the media organization differed from that taken by the authorities, with measures of both political and economic pressure being applied. Measures included unlawfully dismissing directors of particular municipal outlets; interference in editorial policy; stripping the organization of premises which the authorities had previously let to them; hold-ups in paying salaries; reduction of royalties for writing answers, etc. One of the catalyzing forces in this was the process of privatizing State-owned and municipal media outlets, with this process also being one of the main areas of discussion on the media market.

Most municipal printed outlets are in the Donetsk, Odessa, Dnipropetrovsk and Luhansk regions. Figures for the amounts of budget funding for municipal printed press outlets are also telling. The media in Donetsk receives the most financial support (over 11 million UAH), the Kharkiv region (over 9 million UAH), Kyiv (8 million UAH, the Vinnytsa, Dnipropetrovsk and Odessa regions (over 4 million UAH), and the lease support in the Rivne, Sumy, Zhytomyr regions, as well as Sevastopol (less than 1 million UAH.[26]

In regional terms, it is in the eastern and southern regions that freedom of speech continues to experience the greatest restrictions. However such cases did become more frequent in the West of the country, in particular in the Ivano-Frankivsk region. By means of so-called editorial policy the necessary material is selected, this usually containing one point of view or criticism exclusively of political opponents. In conditions of greater control, the media outlets become a mouthpiece for convenient political propaganda, and not a place for public discussion.

One can cite as an example the municipal television company “Kyiv” which was under constant pressure from the city state administration during 2006. The confrontation took any number of different forms: change of management; bans of broadcasting particular programmes and others. Another form of pressure was through suspending financing. For example, in April the financing department of the Kyiv City State Administration blocked the television company’s accounts without giving any grounds for this.

In May 2006 the Mayor of Kyiv Leonid Chernovetsky effectively without any grounds dismissed Valeria Tkachuk from her position as Director of the municipal television company “Kyiv” in connection with the termination of her powers. Prior to this, in April and virtually immediately after Chernovetsky’s election as Mayor, Tkachuk was temporarily suspended from her duties pending the results of an internal inquiry into allegations of improper fulfilment of her official duties. In May she filed two civil suits, one calling for her dismissal to be declared unlawful, and the other over her suspension during the official inquiry. In January 2007 the Obolonsky District Court in Kyiv found that Ms Tkachuk’s suspension had been unlawful, and on 2 April the same court ordered the Mayor to reinstate her as Director, ruling that her dismissal had been unlawful.[27]

Yet another example was the conflict between the staff of the Chernihiv municipal television company “Prypuky” and the newly-elected Mayor Yury Berkut. According to the “Prypuky” journalists, the Director of the television company Valery Doroshenko was forced by the Mayor to resign. In connection with this the journalist team of the company stated that they were categorically against the measures the new authorities were using in building relations with journalists and the media.

At a meeting of the “Prypuky” team on 17 April, the journalists decided to ask the Mayor to retain Valery Doroshenko in his post as Director of the company which they believed their were no grounds for his forced resignation.

“We view this as a case of pressure on a media outlet and its manager which runs counter to legislation, as well as to the principles of freedom of speech and press freedom, proclaimed by the President, the Verkhovna Rada and the Cabinet of Ministers, as well as the political parties and blocs which were successful at the parliamentary elections on 26 March this year”, their statement read. The journalists also pointed out the critical material state of the television company and the impossibility of working under such conditions.[28]

 

Proportionality of punishment for abuse of freedom of speech

It remains common practice to impose disproportionate penalties for abuse of freedom of speech, the dissemination of untruthful information, etc. Sometimes these penalties are imposed for expressing value judgments. They have, moreover, been use as a form of pressure on media outlets and journalists. It  should, however, be mentioned that the courts often apply European Court of Human Rights case law in such instances which has a positive impact on the resolution of these disputes.

In the first half of 2006 there were 4.6 thousand civil defamation suits defending honour, dignity and business reputation awaiting examination by the court, this being 21.9% more than for the analogous period in 2005. The claims were allowed in 750 cases, or 56.9% (against 55.5%) of those where a judgment was handed down, with 2 million 35 thousand UAH awarded in damages. This included 614 claims against media outlets, which was also 32.0% higher. Judgments were issued in 168 claims, of which in 97 cases, or 57.7% (against 55.5%) the claims were allowed, with damages awarded amounting to 276.9 thousand UAH. This increase is most likely to have been due to the pre-election campaign which was marked by an escalation in the amount of untruthful information disseminated about politicians in order to discredit them. On the other hand, we see a clear and significant reduction in comparison with previous years both in the number of claims against the media and individual journalists, and in the amounts of moral damages awarded.

With respect to pressure via civil claims, mention should be made of the pressure exerted upon the newspaper of the Luhansk regional branch of the Ukrainian Committee of Voters “Third Sector” which faced a number of such court cases. The “author” of the latest suit presented in May 2006 was the Deputy Mayor of Severodonetsk Serhiy Porkuyan who estimated his moral suffering at 10 thousand UAH.

“The claim was lodged over the publication in a March issue of the newspaper of an interview with candidate for the office of deputy of the regional and city councils Volodymyr Bezymyanny. The latter state that such deputy mayors as Porkuyan need to be changed and added his opinion as to why this needed to be done”, the head of the Luhansk Committee of Voters Oleksy Svyetikov explained.

Porkuyan decided that Bezymyanny’s remarks were not a value judgment, but the dissemination of untruthful information, in particular, because he had not been charged with bribe-taking, and therefore nobody had the right to consider him to be such.

We would mention that for the editorial office of “Third Sector” this is already the seventh defamation suit, six of which came from one address which houses the Severodonetsk executive committee.[29]

The Mayor of Donetsk Oleksandr Lukyanchenko lodged a claim on 3 October against the newspaper “Public truth” over their publication of caricatures of him.

Speaker of the Verkhovna Rada Oleksandr Moroz also filed numerous suits against the printed press and Internet sites over critical publications about him and his activities.

On 29 November the Mayor of Ladyzhyn in the Vinnytsa region Valery Kolomiytsev lodged a damages claim of 100 thousand UAH against the Editor of  “Ladyzhynska gazeta”, Ludmila Holovashych..

In a judgment issued on 26 January 2006[30]  a panel of judges of the Supreme Court Civil Chamber revoked the previous court rulings on the civil claim brought by the limited liability company Eural Trans Gas against Global Ukraine Ltd and the journalist Oleh Yeltsov, and returned the case for new examination by a court of first instance.

Back in October 2004, A.K.[31]and Eural Trans Gas filed a suit against Global Ukraine and Yeltsov in defence of honour, dignity and business reputation and demanding moral compensation. They based their demands on the fact that the Internet publication “Ukraina kriminalna” [“Criminal Ukraine”], at the time owned by Oleh Yelsov, and the provider Global Ukraine, had, on 18 August 2003, posted on his website an article under the title “Naftohaz of Ukraine: A Study of financial corruption. Part 2”.  The claimants asserted that the article contained information which was not true and that it infringed the rights and legally protected interests of A.K. and Eural Trans Gas.

The Pechersky District Court in Kyiv in a ruling from 28 February 2005 partially allowed the claim, finding that the information in the article, published on 18 August 2003 on the Internet site was not true. It ordered Yeltsov at his own expense to refute the wrong information on the site http://www.cripo.com.ua (which by that stage no longer belonged to him and in the newspaper “Uryadovy kuryer” [“Government Courier”]. Yeltsov was also ordered to pay A.K. and Eural Trans Gas 25 thousand UAH each in compensation for moral damages. The court rejected the claim by A.K. and Eural Trans Gas against Global Ukraine.

In its ruling on 3 June 2005 the Kyiv Court of Appeal revoked the part of the district court’s ruling ordering Yeltsov to refute the wrong information used in the article posted on the website  in the newspaper “Uryadovy kuryer”. The Court of Appeal, however, upheld all the rest of the first instance court’s ruling.

Yeltsov maintained that the information at issue about the claimants had already been posted on the website of Radio Free Europe / Radio Svoboda [Radio Liberty]. The author of the article – K. was a Radio Svoboda analyst, and that Global Ukraine and Yeltsov bore no blame for disseminating wrong information. Furthermore, according to Article 42 of the Law “On Printed Mass Communication Media (the Press)” the media and journalists may not be held liable for compensating moral (non-material) damage for publishing or distributing information which is not truth, if the latter is contained in official reports, or was obtained from information agencies, press services of government bodies, organizations or citizens’ association. The fact of publication was confirmed, for example, by the Deputy Director of the Ukrainian service of Radio “Svoboda”.

In view of this, the Supreme Court took the decision to overturn the previous rulings and send it back for examination in a court of first instance.

In 2006 there was also use made as a form of punishment against the media of bans on certain programmes.  This was an area, for example, that Mayor of Kyiv excelled in. In May 2006 he lodged a civil claim with the Pechersky District Court in Kyiv asking for a ban on the further showing of the programme “Roundtable” of the municipal television company “Kyiv” about charismatic churches first broadcast on 4 April. He maintained that the programme incited enmity between religious faiths. Presenter from the television company Volodymyr Zamansky said that on 15 May he had received a copy of Chernovetsky’s civil claim in which the Mayor asks the court to recognize the information made public in that broadcast such as violated his rights. The claimant names as respondents Zamansky and Tkachuk who at the time the programme was broadcast was director of the TV Company “Kyiv”. He stated that during the disputed programme psychologists and experts had discussed the activities of destructive churches, as well as a film which mentioned the Pastor of the religious organization “Assembly of God” Sunday Adeladja.

Chernovetsky also asked the court to ban any programmes from “Kyiv” which contain elements of incitement to ethnic, racial or religious enmity and hatred, and to bind the television common to give him broadcasting time to respond to the information circulated.

Another form of disproportionate penalty is the use of criminal punishment which is not common, but does occur in Ukraine.

The oldest such example of this is the Salov Case. The European Court of Human Rights issued its final Judgment in the Case of Salov v. Ukraine on 6 September 2005[32]. (Application № 65518/01), in which, amongst other things, it found Ukraine guilty of having violated Article 10 of the European Convention on Human Rights.  This case involved a rather interesting incident which occurred in 1999 during the presidential election campaign.  An unidentified individual had put out a fake special issue of the newspaper “Holos Ukrainy” [“Voice of Ukraine”] from 29 November 1999 which, in an address allegedly from the Speaker of the Verkhovna Rada, O. Tkachenko, informed of the death of one of the candidates for the Presidency and the then President of Ukraine, Leonid Kuchma.  Mr Salov received this newspaper in his post box and decided to show it to friends. As a result, he was detained by law enforcement officers. On 6 July 2000 the District Court convicted Salov of interfering with the civil right to vote for the purpose of influencing the presidential election results (Article 127 of the “former” Criminal Code of Ukraine). The District Court sentenced the applicant to five years’ imprisonment, which was suspended for a two-year probationary period as the actions of Mr Salov “in fact entailed no grave consequences”. It also ordered the applicant to pay a fine of 170 UH[33].  As a result of this sentence his licence to work as a lawyer was later annulled.

The European Court, taking into consideration that the information disseminated had in fact been false, found that there had been a violation of Article 10.

A joint session of Ukraine’s Supreme Court Criminal Chamber and Military Court Panel, after examining the criminal cases following an application from Salov to have his case and all court rulings reviewed as exceptional proceedings,, on 26 January 2007 quashed all charges against Serhiy Salov.  This revoked the district court verdict from 6 July 2000, the resolution of the regional court from 15 September 2000 and the ruling of the district court from 21 September 2001, with all criminal proceedings being terminated due to the lack of any elements of the crime set out in Article 127 of the Ukrainian Criminal Code.[34]

 

3.  Concentration of media ownership and ensuring pluralism of the mass media

High concentration of nationwide, regional or local media outlets in the same hands poses the danger of standardized information and of no truly comprehensive coverage of publicly signification issues, presented from different points of view. The situation is worse at regional and local level where the monopolization of the media is greater and is effectively uncontrolled.

Ukrainian legislation does not take the need to ensure pluralism of the mass media into consideration, relying exclusively on general anti-monopoly legislation which does not in turn cater for specific features of the television and radio information market.

Legislation on information agencies, the press, television and radio broadcasting does not envisage openness with regard to issues of ownership. Not even special regulatory agencies in this area, such as the National Television and Broadcasting Council and the Ministry of Justice hold objective information.

It should be noted that the National Television and Broadcasting Council is failing to fulfil its duty to exercise control over pluralism of the mass media and regulation concentration of ownership. Moreover, in its report for 2006 information which is no longer current and is effectively untruthful is provided about the founders of some Ukrainian television channels where these include foreign legal entities (for example, Inter, ICTV, TET, K1 and others).

Current legislation does not contain a clear definition of owners of media outlets, that is, those who exert a real direct or indirect control (through controlling other legal entities or individuals) on a given media outlet.

There are, admittedly, certain branch-based restrictions on control of media ownership. The best example is the Law “On Printed Mass Communication Media (the Press)”, where Article 10 reads:

An individual or legal entity cannot be the founder (co-founder), or control more than 5 percent of such publications. By control in this law is meant the possibility of such an individual or entity influencing the activities of the media outlet through material or financial means”.

There are, however, no such provisions with respect to information agencies, television or radio.

Ukrainian legislation does nothing at all to regulate so-called cross-ownership, with there being no restrictions, for example, on a person or entity simultaneously owning national television channels and newspapers.

We are unaware of any cases in practice where any of the anti-monopoly legislation have been applied to the mass media by the Antimonopoly Committee.

At the present time one can find out information about an individual or company who owns a television or radio company, but if they are offshore, then it is not possible to find out who the founder was. It is worth noting that the inclination to create offshore companies is not so much prompted by the desire to hide the fact of who owns the media outlet, but by the wish to minimize taxes. One can therefore conclude that the responsibility for such concealment of real owners lies with the government which is encouraging the creation of such setups.

On the other hand, many owners do not wish to make their media assets publicly known out of fear of pressure on them over the publication of this or that information in their media outlets.

On 24 January 2006 UHHRU for the first time in Ukraine endeavoured to reveal information about the first level owners of the 10 largest national media outlets.[35]  Such information had previously only been published very selectively. The information had now been checked and had been the subject of a serious public study. Later the Medial Law Institute published all founders of the television channel Inter whose owners were all concealed behind offshore companies.[36]

On 3 May 2007 UHHRU published information about a considerably broader number of media outlets, including the printed press.

The new law on television and radio broadcasting which came into effect from last year has worsened the situation. Through lack of clarity of some of the provisions of this law regarding whether foreign nationals or legal entities can be founders of television and radio organizations, foreign legal entities have been removed from the level of direct founders and transferred to the second generation of media owners. This in fact only complicates the situation and reduces the level of transparency as regards ownership of the media.

Ownership of the printed press is considerably more transparent, this being attributable first of all to much better legislation, and secondly printed media outlets do not require so much capital and it is therefore easier to finance them without involving offshore companies.

It should be noted that Ukrainian media which are externally reasonably free do not indeed overtly suggest a threat to pluralism. However the further away we move from the revolutionary events of 2004, the more clearly one can observe the ideological bent of this or that television channel or radio station, with a consequently disproportionate coverage of differing positions. There are more and more frequently cases where information is manipulated, where certain events or opinions are ignored by national media outlets. The number of such cases rose during the parliamentary election campaign.

 

4.  Restrictions on freedom of speech in the electoral process


The new version of the Law “On the Election of National Deputies of Ukraine” from 7 July 2005 substantially restricted freedom of speech and threatened to generally paralyze the activities of the mass media during the 2006 pre-election campaign.

Article 67 § 12 of this Law states that “coverage of the election process in media outlets regardless of their form of ownership taking the form of information reports, news, etc, shall be carried out without commentary and evaluation, exclusively on an objective, impartial and well-balanced basis”

  Particular provisions of this Law which pertain to the regulation of the activity of the mass media during the election process actually limited the constitutional right to information and freedom of expression.

Following the adoption of this law it became even less clear exactly which public authorities had the right to temporarily suspend or withdraw the licence of a television or radio broadcasting company. According to Article 71 § 10: “…. where there has been an infringement by a media outlet of the requirements set out in paragraphs five or nine of this Article, on the petition of the Central Election Commission or of the relevant district electoral commission, the particular media outlet shall have its licence or the issue of printed material temporarily suspended (pending the end of the election process) according to the procedure stipulated in law.  In the event of any other infringements being committed by a media outlet, the requirement of this Law for the temporary suspension of the force of the licence or of the issue of printed matter shall be implemented exclusively with the sanction of the court”. 

Amendments to the Law “On the election of National Deputies of Ukraine” which brought it into compliance with the Constitution of Ukraine were only introduced in November 2005 as the result of a major campaign by the public and the media.

In accordance with Item 2 of the Law “On amendments to some legislative acts of Ukraine aimed at enabling citizens to exercise their electoral rights, ensuring freedom of political debate, an unbiased attitude from the mass media to candidates for the office of Deputy, to parties (blocs) taking part in the election process” from 17 November 2005, Article 71 § 10 of the Law “On the election of National Deputies of Ukraine” was given in the following version: “the decision about the temporary (pending the end of the election process) suspension of a licence, or about the temporary ban (pending the end of the election process) on the publication of printed material shall be taken by the courts”.  The aim of this norm is to safeguard the mass media against illegal loss of their licence, and to thus ensure freedom of expression in the Ukrainian mass media.  The norm which prohibited journalists from giving commentaries and making assessments in the course of providing information reports was also removed.

However even these amendments could not fundamentally improve the situation. Electoral legislation effectively restricted political discussion through the broad interpretation of the concept “political advertising” and the serious sanctions envisaged for violations of the conditions on broadcasting such advertising. As a consequence the election campaign became sterile, bland and quite simply boring.[37]

Legislation was accordingly treated in such a way that any public speeches either criticizing or making positive remarks about specific candidates were viewed as being political advertising, and not as free debate on socially important issues. As a result, any text or video clip which showed the party or members of candidate lists was subject to strict censorship in case it could be considered to be pre-election campaigning Indeed, when media outlets circulated information with critical content about parties or members of their candidate lists, they risked ending up with law suits demanding their closure until the end of the elections. For this reason articles in newspapers and television programs teemed with reserve clauses: “This is not campaigning!  This is not campaigning!” 

As a result of this law, on 17 February 2006 the Sumy Regional Court of Appeal suspended issue of

the Sumy newspaper “Hromadyany Ukrainy” [“Citizens of Ukraine”] until after the elections. .The Kyivsky District Court in Simferopol suspended the licence of the Chornomorska television and radio company until the end of the elections in response to a law suit filed by the Crimean branch of the Party of the Regions. This ruling was later reversed by the Court of Appeal.

However, most rulings by electoral commissions or courts involved limitations of particular individuals’ freedom of expression.

Two Resolutions from the Central Election Commission were highly revealing in this respect. These were No 716 from 23 February and No. 793 from 2 March based on complaints from the electoral bloc “NE TAK!” [“NOT SO / NOT YES!”]  regarding the actions of the newspaper “Silski visti” [“Rural news”] and Petro Poroshenko. In both cases the claimant alleged violation of its rights and legitimate interests. The Central Election Commission (CEC) reviewed the merits of the claim confining its review exclusively to electoral law.

The complaint lodged by the electoral bloc “NE TAK!” against the newspaper “Silski visti” was over an article: “Wishing you happiness in the noble cause of serving the Ukrainian people”, printed in No. 18 from 14 February. The CEC states in its Resolution: “the article contains value judgments in the form of political rhetoric, critical, polemic and sarcastic comments aimed at some participants in the electoral process, specifically:

“...Ukraine remembers those who tried to crush “Silski visti” – Leonid Kravchuk (1986) … who cynically trampled on human rights by banning subscription to “Silski visti” on territory in their control… While Leonid Kravchuk, obviously, in the role of sergeant-major of the suppression corps, or maybe to mark the 20th anniversary since the first waving of sabres above the head of the leader of the “Silski visti” staff, I. Spodarenko, began a new assault on “Silski visti”, announcing a protest campaign against the Presidential Decree No. 60 from 23 January 2006 which honoured Ivan Vasylyovych Spodarenko with the title of Hero of Ukraine.

One can understand the ex-Communist Party of Ukraine ideologist: the Party henchman doesn’t want the newspaper and its leader, through their very existence in this world, to be a reminder of his dark past. Yet what a banner he raises above himself: the honour of Ukraine!

…The newspaper “Silski visti” really weighs down upon Mr Kravchuk.  It’s clear that if he was lying in his grave, he’d turn in it”.

„…It is you, Mr Kravchuk, who are the leading actor and at the same time the director of the theatre of the absurd.  And the point is not that you are transforming yourself from the role of militant blasphemer to that of God’s Anointed, nor that you are so concerned about the memory of the victims of the Holocaust, but banned the very mention of Holodomor [the Famine of 1932-1933] in Ukraine. At the end of the day you don’t care what you use to trade with, you once went with your image as the first president of Ukraine trying the Cossack card to a candidate for the office of Kyiv Mayor who suited you but wasn’t wanted at all by the people of Kyiv. However that is from the area of morals. Although, what morals?. You when you were President of Ukraine squandered the world’s largest (at the time) Black Sea Fleet.  As President of Ukraine you diddled away up to one and a half billion of people’s savings, casting your own people into abject poverty, unemployment, and also crushing inflation. And you, through Kuchma’s bounty, are “Hero of Ukraine!”

That really is a theatre of the absurd. And you are now trying the card of anti-Semitism and xenophobia, as if forgetting that it’s been beaten and is lying in the rubbish heap, of any use only to down-and-outs who live from such rubbish containers and sometimes even sell things they find.  You, Mr Kravchuk, who are always flaunting your knowledge of the law, you who are supposedly a legal know-it-all. Do you really not know that the accusation against “Silski visti” , initiated by Rabynovych and fabricated by Saprykina, of anti-Semitism, xenophobia and stirring up inter-ethnic antagonism was revoked by the Kyiv Court of Appeal?

Your political companions, Viktor Medvedchuk[38] and Viktor Yanukovych, the main pillars of the Kuchma regime, have also got involved in the case. Here, then, it’s all clear.

However at the bottom of the letter which began the campaign against “Silski visti”, and at the same time – on the pre-election wave – against the President of Ukraine Viktor Yushchenko, there are 13 other signatures. …”

The CEC decided that the article contained features of pre-election campaigning and that it had been printed without prior agreement with a participant in the electoral process, and allowed this part of the claim made by the bloc “NE TAK!”  As regards the opinion of the claimant that the article “published some knowingly untruthful and libellous information about the participant in the electoral process – the candidate for the post of National Deputy Leonid Kravchuk”, the CEC did not agree with this assertion, stating that “the claimant has not submitted to the Central Election Commission any proof of the contention that the information which he considers to be knowingly untrue and libellous is such. Therefore this part of the claim is not accepted”.

The CEC ordered the newspaper “Silski visti”to “refrain in future from committing infringements of the Law on the Elections”. Such a decision acted like a great “cold shower” and obstructed the will to freely discuss the qualities of participants in the election process.

In Resolution №793 from 2 March the CEC considered the claim brought by the bloc “Ne tak!” against the actions of Petro Poroshenko. The claim states:

On 21 February 2006 at 19.40 during a meeting with the public of Kherson which was broadcast on the television channel “SKIFIYA” the respondent of the claim, P.O. Poroshenko stated the following: ”There is no alternative – and this is a true political reform. Not the empty waffle initiated by the communists, Medvedchuk, the [Party of the] Regions and Kuchma”.

During this meeting,  P.O. Poroshenko expressed the following opinions with regard to N.I. Shufrych[39]:  “I’m sorry, but I think he’s a clown. I’m pleased that this is already seen by the entire country’s population, and I consider that the political faction that he is leader of is … the one thing that I am ashamed of, that the first President of our country, Mr Kravchuk is at the head of a list which is demanding the abolition of Ukrainian as the state language pr the introduction of Russian, which … well he should be ashamed of himself. And all the others there are clowns. Their time has already passed.  Think of who Medvedchuk was a year ago, or a year and a half ago. He was the lord of the state. Look how he was blown off the scene as soon as real representatives of the people came. Look at what the level of support today is for that political force “NE TAK!” – without any rigging, without bans on speaking out on television – he’s nobody …”

As proof of these circumstances, the claim was armed with a videocassette and compact disk with recordings of P.O. Poroshenko’s addresses. However the CEC decided that the video recording did not contain the opinions given above and that it was not possible to establish that the video material recorded on the compact disk had been broadcast on the television channel “SKIFIYA”.  The candidate for National Deputy, Petro Poroshenko did not belong to the exclusive list of individuals who, according to paragraph one of Article 71, are prohibited from taking part in pre-election campaigning.  His participation, therefore, in pre-election campaigning was not in contravention of the regulations of the Law on the elections. On this basis, the CEC decided to reject the claim of the bloc “NE TAK!” 

It looks as though the television channel “SKIFIYA” in its coverage of Poroshenko’s meeting with the public of Kherson simply cut out his critical remarks about his opponents, and in this way saved themselves from the sanctions, or even forced closure, they could have faced.

We thus find that the Law on the elections, and its practical application as this is developing present the following picture: candidates for the office of Deputy have the opportunity to freely discuss election issues, while journalists and the mass media may only provide coverage of these debates on the basis of agreements with the political parties (blocs), that is, representing their interests. They themselves are not able to freely express their opinions, since any critical comments are treated as pre-election campaigning.  They are therefore forced either to abandon any coverage of the election campaign or resort to serious self-censorship.

One should also mention the entirely unjustified rulings banning the Minister of Internal Affairs, Yury Lutsenko, from making public information about the criminal past of candidates for the office of National Deputy with reference to norms which prohibit campaigning by government officials.

These examples clearly show that the provisions on pre-election campaigning in the Law “On the Election of National Deputies” contravene the Constitution of Ukraine and Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.  This had a particularly negative impact on the course of the parliamentary elections as a result of considerable limitation on freedom of expression..

These legislative norms must definitely, therefore, be changed before the next electoral campaign.

 

5.  Restrictions of freedom in the context of protecting public morals.

In the last few years in Ukraine limitation on freedom of expression has been heightened through the protection of public morals.

First of all a law was adopted “On the protection of public morals”.  As discussed in “Human Rights in

Ukraine – 2004” and “Human Rights in Ukraine – 2005”, .this basically runs counter to the Constitution of Ukraine, as well as to international standards in the area of freedom of speech.

However at the present time incidents where this legislation is being applied have begun to appear.

In March the National Expert Commission on Issues involving the Protection of Public Morals prohibited a third film, this time one of Quentin Tarantinos. Previously viewers had been prevented from working the remake of the famous horror film “Texas Chainsaw Massacre”, and then George A. Romero’s “Land of the Dead

The advertising clip for the mobile operator “Jeans” in which a young girl and guy lock themselves in a toilet and then come out, straightening out their trousers, was deemed immoral. The National Expert Commission took this decision on the basis of an application from the Kyiv prosecutor’s office to check whether the advertisement being shown on channels 1+1, “Inter”, “Novy Kanal” and ICTV complied with the law on the protection of public morals. The conclusion of the Commission’s experts was that the clip was of a sexual-erotic nature. Its showing, it decided, was therefore possible only with legally established restrictions – on free access broadcasting channels only from 24.00 to 4 in the morning, or on coded channels.[40]  This decision was not based on clear and logical legal criteria and is an obvious violation of freedom of speech.  Several other advertising clips have met the same fate.

It should be pointed out that the conclusions of the National Commission are not binding for the courts. At least during hearings into criminal proceedings the courts return for further investigation cases linked with this issue which are based on National Commission conclusions. These conclusions are, for example, not recognized as proof due to the lack of the qualification “art specialist”. These experts are furthermore not included in the Ministry of Justice’s State register as required by criminal procedure legislation.

A ban was also imposed on producing a nationwide newspaper for gays and lesbians “Gay.Ua”, although this is in fact has been appealed.

It should be noted that limitations on freedom of speech for the purpose of protecting public morals are acceptable. However in Ukraine, despite a current law on the protection of public morals, clear grounds are lacking for limiting freedom of speech for this purpose. As a result of this, such a restriction is carried out in a selective manner and at the personal discretion of certain officials of government bodies. Nobody is able to foresee their behaviour in such a way as to not infringe legislation on the protection of public morals.

 

6.  Recommendations

1)  Implement a programme for reforming State-owned media outlets by changing their system of management and financing in accordance with the recommendations of the Council of Europe and OSCE. The best example of such reform is the introduction of public TV and radio broadcasting on the basis of UT-1 National Television Channel and the First National Radio Channel. The process of privatization must be accelerated.

2)  Abolish the procedure for permission-based registration of printed media outlets which is not in line with Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.[41]

3)  Extend those with the right to engage in publishing activities from enterprises to all forms of legal entities.

4)  Draw up and introduce the appropriate legislation and programmes of self-regulation for journalists and media outlets in order to reduce the spread of material which is paid for or produced on commission with infringements of journalist standards of objectivity and balanced presentation of information.

5)  Abolish the laws “On the procedure for media coverage of the activities of public authorities and bodies of local self-government in Ukraine” and “On government support for the media and social protection for journalists”, allowing for the cancellation of particular benefits for journalists of State media outlets, and to ensure that they have the same rights as journalists on private media outlets..

6)  It would be advisable to review legislation on the elections in order to ensure free discussion in the media about candidates, their weak and strong points and various aspects of their political programme and activities.

7)  Review the possibility of adopting and developing a law on journalists’ rights, using preparatory work carried out by the State Committee on Television and Radio Broadcasting and draft law № 9175 from 27 February 2006 “On protection of journalists’ professional activities”. This issue is of practical importance since, for example, the rights of journalists working for television and radio companies are not defined at all.

8)  Introduce amendments to the law on television and radio broadcasting in order to bring it into line with standards of the Council of Europe, OSCE and the European Union.

9)  Introduce amendments to legislation making it possible to identify the real owner of a media outlet, especially of television channels and radio stations; to introduce effective control over the concentration of media outlets in the hands of one owner or members of his or her family; to introduce anti-monopoly restrictions for the information market in compliance with recommendations of the Council of Europe, OSCE and the European Union; to introduce necessary procedure for punishing those who infringe legislation on the concentration of the media. .

10)  Ensure quick and transparent investigation into all reports of violence and deaths of journalists, as well as into cases of interference in journalists’ activities

11)  Accelerate the procedure for ratifying the European Convention on trans-border television, the Additional protocol to the Convention on trans-border television, and also introduce amendments to legislation on the implementation of its regulations, as well as the provisions of the EU Directive 85/552/ЕU, 97/36/ЕU «Television without Borders.”.

12)  Disband the State Committee on Television and Radio Broadcasting during an overall consideration of Draft amendments to the Constitution of Ukraine. Control also needs to be heightened over the use of funds by this government agency due to numerous cases of abuse. The system, for example, of ordering State-funded television and radio programmes, book publications, films and other services needs to be made more transparent.[42]

13)  Pass a new version of the Law “On protection of public morality” which sets out clearer grounds for restricting freedom of expression of views in order to protect public morals, as well as removing preliminary control over the distribution of films, etc.



[1] By Volodymyr Yavorsky, Executive Director of UHHRU.

[2] Issues of State registration of printed media outlets and information agencies // Ministry of Justice website: http://www.minjust.gov.ua/0/news/8989

[3] Prepared by Oksana Nesterenko, PhD Student in the Faculty of Constitutional Law of the Yaroslav Mudry [the Wise] National Law Academy.

[4]  A very large number of films, etc are produced in the Russian language, due both to the Soviet legacy and to a large amount of Russian investment.  Another problem has been that distributors claimed that they would not recoup the cost of dubbing films in Ukrainian. This led to a very successful civic campaign to show distributors that it would indeed pay (translator)

[5] Cf. “The main problems privatizing State and municipal printed media outlets were discussed at hearings organized by the Committee on Freedom of Speech and Information” // The Information Department of the Verkhovna Rada from 29.11.2006 (in Ukrainian) http://portal.rada.gov.ua/control/uk/publish/article/news_left?art_id=80965&cat_id=37486.

[6]  See also the analysis of this Service in the unit on the right to privacy

[7]  The rather inept translation of the above is to endeavour to retain the author’s distinction. The Constitutional norm cited states: The exercise of these rights may be restricted by law in the interests of national security.”  The word used here is zakon – “a law”, whereas the word used in the definition of State-owned information resources is zakonodavstvo – “legislation” (translator)

[8]  Here and immediately below it may be well to provide the details from the US State Department’s Country Report. 

 «There was one report that a journalist disappeared. On February 20, Anatoly Kachurynets of the Striy Homin Voli (Sound of Freedom) newspaper left home and never returned. Police have no further information and found no evidence of foul play.»  It is also worth noting that the same report, under “Disappearances” states: “There were no reports of politically motivated disappearances.”  (translator)

[9] Country report on Human Rights Practices in Ukraine – 2006: http://www.state.gov/g/drl/rls/hrrpt/2006/78846.htm

[10]  The Dnipropetrovsk journalist died in 2003 in an extremely suspicious car accident. ( translator )

[11] Ihor Aleksandrov had written a lot of hard-hitting articles about Donetsk politicians and about corruption in the law enforcement agencies. He was murdered in 2001. (translator)

[12]  Transcript from the plenary session of the Verkhovna Rada from 19 December 2006 http://portal.rada.gov.ua/

[13] “Freedom of speech barometer for March 2006” // Institute of Mass Information http://imi.org.ua

[14]  Country report on Human Rights Practices in Ukraine – 2006: http://www.state.gov/g/drl/rls/hrrpt/2006/78846.htm

[15]  “Freedom of speech barometer for April 2006” // Institute of Mass Information http://imi.org.ua

[16]  Unidentified individuals have set fire to the flat of “Kievskiye vedomosti” journalist Serhiy Yanovsky // Institute of Mass Information  http://imi.org.ua

[17]  Editor of the website UA-REPORTER.COM beaten up // Institute of Mass Information http://imi.org.ua

[18]  A journalist has disappeared in Striy, in the Lviv region // http://www.telekritika.kiev.ua/news/146/0/18133/v_striju_na_lviv%D1%89ini_znik_zhurnalist/

[19] “Freedom of speech barometer for January 2006” according to a reform from “Skhid-info” [“East – info”] // Institute of Mass Information http://imi.org.ua

[20] “Freedom of speech barometer for May 2006” // Institute of Mass Information http://imi.org.ua

[21]  Ibid.

[22]  “Freedom of speech barometer for January 2006” // Institute of Mass Information http://imi.org.ua

[23] “Freedom of speech barometer for January 2006” // Institute of Mass Information http://imi.org.ua

[24]  Ibid.

[25] “Freedom of speech barometer for March 2006” // Institute of Mass Information http://imi.org.ua

[26] Information from the State Committee on Television and Radio Broadcasting on the amounts of budgetary support for municipal printed media outlets: available on the Committee’s website http://comin.kmu.gov.ua

[27] Chernovetsky loses a civil suit to Tkachuk // www.korrespondent.net  from 02 April 2007.

[28] “Freedom of speech barometer for April 2006” // Institute of Mass Information http://imi.org.ua

[29]  “Freedom of speech barometer for Mayl 2006” // Institute of Mass Information http://imi.org.ua

[30]  "Supreme Court Herald” [“Visnyk Verkhovnoho Sudu]  N 3, 2006.

[31]  The Director of Eural Trans Gas Andras Knopp (translator)

[32]  The Judgment is available in Ukrainian on the Ministry of Justice site : www.minjust.gov.ua, and in English at: www.echr.coe.int

[33]  EUR 32.82

[34] The full text (in Ukrainian) is available at: http://khpg.org/index.php?id=1178807944. The following (in Ukrainian) are also on the case .: http://khpg.org/index.php?id=1089483480, http://khpg.org/index.php?id=1116947397, http://khpg.org/index.php?id=1088460459, http://khpg.org/index.php?id=1040150598, http://khpg.org/index.php?id=1009128489.

[35] Information about the UHHRU study can be found in the article: “Three generations of owners of the Ukrainian media” at:: http://khpg.org/en/index.php?id=1154132546&w=media and in the article by Viacheslav Yakubenko: “Who’s living in my telly?”, in English, at: http://khpg.org/index.php?id=1139325984.

[36] The full control setup is given in the article (in Ukrainian): “Who controls Inter?” // http://www.helsinki.org.ua/index.php?id=1141040859.

[37]  Yevhen Zakharov:  “Infringements of freedom of expression during the 2006 election campaign”.  // Available on the KHPG website in English: http://khpg.org/en/index.php?id=1141949144

[38]  Viktor Medvedchuk was Head of the Presidential Administration in Kuchma’s regime and wielded considerable power. (translator)

[39]  Nestor Shufrych is a member of the Social Democrat Party of Ukraine (United), which is one of the parties in the opposition bloc “NE TAK!”.  He was no. 4 on the candidate list below ex-President Kravchuk and ex-Head of Kuchma’s Administration, Viktor Medvedchuk  (translator’s note).

[40] "Jeans" have been asked to hide their advertisement “rabbits” in a twilight zone” // Ukrainska Pravda, 22.12.2006: www.pravda.com.ua

[41] More detail on this can be found in the Special Report by the OSCE Representative on Freedom of the Media Miklos Harazhti “Media registration in the OSCE region: observations and recommendations from 29 March 2006 http://www.osce.org/fom/

[42] Див.: Держкомтелерадіо потребує кардинальних змін // http://www.helsinki.org.ua/index.php?id=1173972825.

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