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22.06.2009

Call to veto inept amendments and properly protect children’s rights

   

The appeal, which is open for signatures at: http://www.helsinki.org.ua/index.php?id=1245492991 states:

The new Law imposes criminal liability for possession of works, images or other items of a pornographic nature for the purpose of sale or circulation.

It unwarrantedly and disproportionately restricts freedom of expression, and intrudes into the individual’s inner freedom. It also fails to achieve the aim for which it was created, while posing a serious risk of abuse of this norm by law enforcement officers who could use it for corruption or blackmail.

The Law was drawn up by the Cabinet of Ministers supposedly in implementation of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, as well as the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse. (which was signed by Ukraine in 2007, but is yet to be ratified).

In accordance with these documents, Ukraine is obliged to criminalize any creation, possession or circulation of child pornography since the use of children for this purpose is a violation of their fundamental rights for which there can be no justification..

Yet the law which has been adopted does not achieve this objective and does not impose unconditional criminal liability for the creation, possession or circulation of child pornography. It therefore brings Ukraine no closer to fulfilling its commitments under these Conventions.

On the other hand the law criminalizes possession of pornography which is not called for by any international agreement. The criminalization of such actions is, furthermore, dubious since it imposes disproportionate restrictions on freedom of expression.

The situation is exacerbated by the lack of clarity in legislation. There is, for example, no clear definition of “works, images or other items of a pornographic nature”. There is also room for abuse in the unclear definition of “circulation”. The lack of clarity in terminology, on the other hand, makes it impossible to foresee the consequences of ones behaviour, and on the other allows deliberate abuse by law enforcement officers for blackmail or to extract a bribe.

One should also bear in mind that under certain circumstances possession of pornography for the purpose of selling it even under the present version of the Criminal Code can be viewed as being accessory to a crime where such actions are part of the commercial preparation and circulation of pornography, and there is therefore no practical need in increasing such liability.

Freedom both of the individual and of information forms the foundation of a free democratic society. This freedom may clearly be limited for the protection of morality. For example, there can be restrictions on behaviour in public or access or involvement of minors. However the present law intrudes in the private life of the individual irrespective of whether such behaviour is public and even where it does not apply to minors.

Criminal liability is an exceptional measure by the State which is usually applied where there the individual’s behaviour poses a significant public threat and where it is not possible to counter the behaviour by other means.

This Law will clearly not overcome pornography as a phenomenon which has existed in the world for centuries. It will also not defend minors as Ukraine has committed itself to do.

However it clearly obstructs the development of art and culture where the border between what is permitted and what is not will be even more vague and equivocal. It creates unnecessary obstructions for the free exchange of information and free circulation of ideas and lays the ground for intrusion into the personal life of the individual in the absence of significant danger to society from such behaviour.

In view of these arguments we, the undersigned, would ask you to use your power of veto over this Law.

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