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Human rights in Ukraine – 2008. 8. FREEDOM OF EXPRESSION

   

[1]

1. Overview

After 2004 there was a considerable easing in pressure on the media and journalists from the authorities. From 2006 this pressure began to increase again, however the level of freedom of expression is still considerably higher than that up to 2004. Over the last two years the situation has remained practically unchanged.

The main challenges of the last year were:

-  Disproportionate and unwarranted restrictions of freedom of expression in order to protect public morality without clear and foreseeable legal regulation;

-  An increase in administrative pressure on journalists from private media outlets seen in numerous dismissals, pay «in envelopes», unofficial employment of journalists and a considerable number of violations of labour legislation with regard to journalists used by media outlet owners in order to push for controlled editorial policy, especially on political issues;

-  Lack of transparency as to media owners which makes it impossible to achieve the proper level of media pluralism;

-  A significant amount of material in the media paid for but not marked as advertising. The situation reaches an absurd level when in some news broadcasts most items have been paid for.

Independence from the authorities has not proved a guarantee of media independence. There is still no separation of editorial policy from media owners this making the media outlet too dependent on the wishes of its owners, with these exerting more and more control over editorial policy since virtually all of them are themselves politicians.

The situation has not been improved by the gradual transformation of a certain part of the media into a profit-making business. Financial independent has not resulted in editorial independence

Another growing problem is the inclusion of paid material or as it is commonly called «jeansa» on television. In their advertising pricelists, the media directly indicate the cost of placing such material which is dependent on the rating of the programme, and on how long the material is. Such services include the placement of an article, news items, a one-sided journalist investigation or television film. A variation on this is invitations of so-called «guests» into the studio. Politicians or businesspeople are often invited who lobby their interests for a fee to the television and radio organizations, rather than people who can contribute additional information to a public discussion. All such information is presented without any indication that it is advertising or paid material, with this misleading the audience.

Under such conditions one can only speak of a certain degree of press freedom. There are considerable problems with freedom of speech due to the lack of access to the media in order to express points of view since such access is sometimes available virtually entirely for payment or in accordance with the media owners’ instructions. In a considerable number of media outlets there are also lists of topics not allowed to be covered, bans on criticism of certain people, with this being explained by, or called «editorial policy» and dictated by the media owners.

The media’s function in a democratic country is thus being distorted, and there are all too seldom many-sided discussions in the media on socially-important topics. There is more often an imitation of such discussion where, for example, the majority of so-called experts and politicians invited come to the programme on a paying basis, and the discussion is at a low professional level, or even primitive level. Moreover the viewer is not aware that s/he is effectively being shown paid political advertising, and not socially important discussion.

 This situation could be changed through the creation of public broadcasting however the political will for this from the President, the government and parliament is clearly lacking

Journalists feel safer than before, although attacks on journalists are frequent and the investigations into them usually lead nowhere. The police have begun more often detaining journalists during peaceful demonstrations.

Journalists are also under economic pressure from the administration of the media outlets. Many of them work and are paid unofficially, and are not protected by labour law. Therefore, for example, if they speak out openly against the media outlet’s management they risk remaining without pay for at least the last month.

Journalists have yet to organize themselves. Ethical mechanisms are virtually not functioning. Independent trade unions are, as a rule, few and poorly developed.

 

2. Compulsory State registration of media outlets and of publishing activities

The printed press

Registration of printed media outlets remains mandatory which, UHHRU considers is an infringement of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. There is still liability for circulating media outlets without State registration

In 2008 the Ministry of Justice registered (re-registered) 1, 115 printed media outlets with circulation nationwide or abroad (against 1, 331 in 2007) and 14 information agencies (against 24).

Territorial offices of the Ministry registered or re-registered 1, 273 publications with local circulation (against 1, 393 in 2007). Of these 952 (against 962) were exclusively newspapers, while 321 (against 311) were of a journal nature.[2]

In the view of the Ministry of Justice, the following can be highlighted among the main issues arising in the process of State registration:

−  Lack of clarity as to the registering body’s control functions where a media outlet founder or co-founder infringes norms of the Law «On Printed Mass Communication Media (the Press)»;

−  The registering body is not properly provided with control copies , as required by Articles 16 and 33 of this Law;

−  Media founders (co-founders) failing to submit in the legally stipulated timeframe to the registering body their certificates on State registration of the print media outlet which has been found invalid or out of date;

−  The lack of clarity as to the timeframe and lack of places for holding control copies of the publication, etc.

We consider that the obligation to send the controlling body free of charge one copy of each issue of the media outlet does not fully comply with international principles of freedom of speech.

 There are often court disputes over registration of printed media outlets.

 Back in 2007 following a suit lodged by the Publishing House Independent Media against the Ministry of Justice, the District Administrative Court in Kyiv revoked the refusal to register the «Ukrainian publication of the journal Good Housekeeping Домашний очаг». The Ministry of Justice asserted that the publication could be only with the name in Ukrainian, and that the proposed title was therefore in breach of the law on language. The court found that the name of the publication and the language of publication are different elements of the publication, and also that there was no requirement in the law on the printed media regarding the language of the publication’s name It found 2.2.3 of Article 2 of the Regulations on Registration (the name of the publication (in the language or languages which it will be published in) as regards restricting the name of the publication to only the language in which it will be published to not comply with the law on the printed media.

 Ukraine’s Higher Administrative Court on 18 February 2008 turned the page on a case involving a law suit by the Editorial Board of the newspaper «Soroka» against the Republic Committee on Information of the Autonomous Republic of the Crimea which on 22 November 2005 had issued a certificate of State registration of the printed media outlet – the advertising newspaper «Soroka-Krym». The Editorial Board asserted that the registered advertising newspaper «Soroka-Krym» was similar to the symbol for «Soroka» goods and services registered by the Editorial Board of «Soroka». Earlier, in 2006, a first instance court and court of appeal refused to allow the claim. The authorities asserted that registration had been carried out on the basis of Article 20 of the Law «On Printed Mass Communication Media (the Press)»; which contains a list of grounds for refusing to register a publication. It does not include infringement of intellectual property rights. The Higher Administrative Court agreed with this, stating that the issue by the State Department of Intellectual Property of the Ministry of Education and Science of a certificate of registration of the trade and services mark giving ownership of this mark to the Editorial Board of the newspaper «Soroka» up till 07.03.2013 did not constitute grounds for a refusal to register the newspaper «Soroka-Krym»

In accordance with Item 14 of the Plan of Measures to fulfil the Objectives[3], set out in the Law «On the fundamental principles of development of the information society in Ukraine for the period from 2007 to 2015», the Minister of Justice was appointed the main author of a draft Law «On amendments to the Law of Ukraine. On 25 November 2008 a roundtable was held to discuss issues around registration and the activities of the printed media, as well as to create a working group to draw up the above-named draft law. It is anticipated that the passing of this law will resolve problems with State registration, including changing permission-based registration.

On 10 December 2008 the Ministry of Justice opened up access to the Register of Printed Media Outlets.[4]. Now anybody has the right to see information about printed media outlets contained in the Register on the Ministry’s website, by searching under or in order to find out the name of the founders, the type or name of publication, the series and number of the certificate, the date of State registration and the registering body.

 

Television and Radio Broadcasting

All television and radio broadcasting organizations must register with the National Television and Radio Broadcasting Council of Ukraine. Even those which only produce audiovisual production without circulating it themselves or having a broadcasting licence need to have registration. Furthermore, any type of broadcaster of information, satellite, digital, cable and wire needs registration this not being in line with international standards

As of 31 December 2008 the State Register of Television and Radio Broadcasting Organizations held information about 1, 610 television and radio companies (hereafter TRC) and providers of information, broken down into 1513 TRC and providers of programme services and 97 providers of information. Of the 1513, 97 were State-owned, 376 – municipal and 1, 101 other forms of ownership.

In 2008 63 TRC were removed from the State Register of Television and Radio Broadcasting Organizations. There were 87 TRC than in 2007. .

Last year the National Television and Radio Broadcasting Council passed 19 decisions regarding State registration. As of 31 December 2008 it had issued 579 licences, this including re-licensing. They can be broken down as follows:

1) 391 licences for broadcasting (of which 199 were re-licensing);:

−  Satellite – 38 (of which 9 were re-licensing);

−  Air – 229 (of which 163 were re-licensing);

−  Cable – 42 (of which 10 were re-licensing);

−  Wire – 72 (of which 17 were re-licensing);;

−  Multi-channel – 10;

2) 188 licences for providers of programme services (of which 56 were re-licensing).

In accordance with Article 37 of the Law «On television and radio broadcasting, during 2008 the National Television and Radio Broadcasting Council passed 53 decisions on cancelling licences for broadcasting and providers of programme services. Of these:

Ø 49 were at the wish of the TRC;

Ø 3 were because they had not broadcast for a year;

Ø 1 was due to cancellation of State registration. [5]

The District Administrative Court in Kyiv on 5 March 2008 revoked the decision of the National Television and Radio Broadcasting Council which had removed the licence of the National Radio Broadcasting Company of Ukraine [NRBCU] to broadcast on certain channels.[6] The Broadcasting Council had ascertained that for more than a year NRBCU had not broadcast on all the frequencies it had been allocated. It therefore decided to revoke NRBCU’s licence on the basis of the norm of the Law on Television and Radio Broadcasting, according to which a licence is cancelled if the licensee does not begin broadcasting within a year of the licence being issued. The Broadcasting Council interpreted this norm broadly as meaning that the lack of broadcasting for a year could serve as grounds for revoking a licence. The Court stated that in a case where the TRC had begun broadcasting during the stipulated period, but had later temporarily suspended broadcasts due to some kind of circumstances, including through the cessation of restriction of public financing, Item «a» of Article 37 § 3 of the Law on Television and Radio Broadcasting did not apply..

 

Publishing

All those engaged in publishing activities must have State registration. Furthermore, only enterprises may be publishers, not civic religious or charitable organizations.

 

3  The Rights of Journalists and the Media

 

Information on recorded offences [7]

 

2002

2003

2004

2005

2006

2007

2008

Journalists killed or missing

3

4

0

0

0

0

1

Arrests and detentions

1

2

8

2

3

1

5

Beatings, assault, intimidation

23

34

47

16

29

13

29

Obstruction in carrying out professional duties, censorship

46

27

52

14

31

23

18

 

3.1. Killings, beatings, threats and other forms of violation against journalists

 

 

Information about victims of crimes among media employees [8]

 

Victims of crimes

From which they died

2006

2007

2008

2006

2007

2008

Media employees

92

46

47

1

0

1

 

Last year did not bring the desired progress in the Gongadze investigation. There were no results in the search for those who ordered the killing and those who organized it. The verdict with respect to the men who carried out the murder was handed down in March 2008 however on this the investigation reached a dead end, with the organizer of the crime being declared in his absence Oleksy Pukrach who has for years been in hiding. Other witnesses who could point to those who really ordered the killing were not named in court. The lawyers for the men convicted lodged an appeal in April however in July this was turned down by the Supreme Court which left the three sentences against those who carried out the murder unchanged.

No journalists were imprisoned in connection with carrying out their professional activities.

The following are details concerning attacks on journalists.[9]

On 26 February the rear window in the car owned by Director of the Odessa office of the newspaper «Today» [«Segodnya»] Alyona Chuhunnikova was smashed. Ms Chuhunnikova believes that this and previous attacks, as well as a number of phone calls with threats, are linked to the publication of a number of high-profile pieces in the newspaper. This included a road accident in which one of the drivers was the son of the Deputy Head of the Odessa Regional Council, and the abduction of a baby from a maternity unit. The «Today» editorial office demanded that the law enforcement agencies carry out an investigation.

Journalist from «Gazeta po-kyevsky» Andriy Mannuk was detained on 15 March by police offices with excessive use of physical force during a peaceful protest against the building of a high-rise residential block on the land of the Zhovtneva Hospital in Kyiv. The ambulance diagnosed Andriy Mannuk as having concussion and suspected chest injuries inflicted by the police. The journalist lodged a complaint with the Prosecutor’s Office, however there is no news of any results of the investigation.

In Nova Kakhovka the Head of the Bureau of Journalist Investigations «Kakhovsky Base» Serhiy Tsyhyla was attacked. According to Serhiy, the assailant attacked him on 16 March at 8 in the morning when he was walking into the entrance to his apartment block. «I had been walking my dog. If it hadn’t been for the dog, I don’t know if I’d be alive now. In the hospital I had six stitches. I have a broken nose, concussion, two teeth were knocked out, and they suspect two ribs may be fractured.» The journalist is certain that this attack is linked with his professional activities. He is the author of a number of texts which paint the Mayor and his people in unflattering terms. He believes that the catalyst for the attack could have been material published in No. 11 of the newspaper «Deloviye novosti» [«Business news»] from 12 March 2008. «After that publication I was unofficially warned that «for such bulldog behaviour» I could soon expect big problems. My wife and I also received a number of phone calls with threats.»

Two days before the attack the journalist reported the threats to the police. Immediately after the attack he also turned to the police. Despite this the criminal investigation was only initiated under Article 296 of the Criminal Code – hooliganism. There has been no information about the results of the investigation.

In Donetsk on 16 May officers of the Special Unit «Grifon» beat up journalist from the newspaper «Ostriv» Ihor Nezhurko. He was at a court hearing in the Voroshylovsky District Court. The hearing was supposed to be open however the judge ordered that the courtroom be vacated. After the journalist tried to find out what the reason was for the ban, officers of the Special Unit «Grifon», following instructions from the judge, took him into the waiting room and beat him. As a result of the beating, he had concussion, bleeding and was taken by ambulance unconscious to the nearest injury unit. After receiving emergency aid, he was refused hospital care since he wasn’t registered in Donetsk. His colleagues took him home to Horlivka where his condition worsened. During the beating one of the «Grifon» officers took his mobile away. In June the Prosecutor for the Kyivsky District in Donetsk initiated a criminal investigation against an employee of a Special Unit over exceeding his duties.

The Prosecutor’s Office in Kyiv on 19 May terminated the criminal investigation into the incident between a filming crew from the television channel STB and then National Deputy from the Party of the Regions, Oleh Kalashnikov. «I can inform that the criminal investigation unit of the Kyiv Prosecutor’s Office closed the criminal case in which you were recognized as a victim due to the lack of elements of a crime», it says in the investigator’s decision handed to the victim, journalist Novosad. However Novosad believes that the investigation was biased. «I saw how the investigator running our case was prejudiced against us. There were cases when he refused to add testimony to the case, proof from witnesses confirming our version of the incident. On the basis of this I came to the conclusion that he wanted to close the case as quickly as possible.», Novosad explains. The decision was dated 10 April 2008 however Novosad received it only coming up to 19 May. The National Commission on the affirmation of freedom of speech and development of the information sphere under the President expressed concern over the termination of the criminal investigation into the case of the assault on the STB filming crew, known as the «Kalashnikov case». Previously, on 12 July 2006, a group of people from the Party of the Regions, including Kalashnikov, obstructed the work of a television team from STB outside the Verkhovna Rada. They forcibly removed a video cassette and the journalists were beaten. On 14 July the Pechersky District Prosecutor’s Office initiated a criminal investigation over obstruction of journalists’ legitimate professional activities.

 On 16 September in Donetsk correspondent of the newspaper «Ostriv» and Deputy Head of the Donetsk Independent Media Trade Union Maxim Abramovsky and his colleague Olena Mykhailova were assaulted. The journalists had been videoing at the exit from Dometsk as part of their own investigation. In their video footage they had police officers right on the bridge stopping and checking drivers’ documents, this being violation of the road code. Maxim Abramovsky recounts how, having noticed the journalists, the police officers asked to see their ID. They were shown the journalists’ professional ID, as well as the identification document for an assistant to a National Deputy [MP]. In response to a request to identify themselves, the police came out with a stream of foul language and threats of physical violence. Maxim Abramovsky’s ID was taken away. All of this was videoed, and the journalists warned the people of their responsibility and demanded that they stop insulting them. Instead, they heard only the threat «I’ll shoot you». Maxim Abramovsky says that a man in plain clothes got out of one of the cars at the place of the incident and demanded that they hand over the video camera. After they refused to do so, this man struck the journalist and began suffocating him. The police officers addressed blows at the journalist’s head and at the video camera. They finally grabbed it off him, returning it a little later broken and with the film removed. Olena Mykhailova explains that she tried to call other police units. «When they started effectively suffocating Maxim I tried to dial 02 [i.e. emergency – translator]. But they began twisting my arm and trying to get the phone away.»

 After a police unit did after all arrive at the scene, the journalists made a formal statement and gave evidence. In the station, Maxim Abramovsky and Olena Mykhailova saw both the police officers and man in plain clothes involved in the conflict. «We were prevented from carrying out formal identification, although I directly pointed to them», Maxim recounts.

 Maxim Abramovsky ended up in hospital and a criminal investigation into the incident was not initiated. The results of the check carried out by the police are, Maxim Abramovsky says, with the Prosecutor’s Office.

 In Kyiv on 2 October, in a scuffle during a protest against the seizure of Recording House on Pervomaisk St, journalists were hurt. The security guards who had seized the building, hurled stones and boards at the protesters who were trying to break down the fencing put up. Ihor Lutsenko, Chief Editor of the website «Financier» and an activist of the initiative «Preserve old Kyiv» was assaulted by three guards who grabbed the video camera with which he had been filming what was happening. Volodymyr Honchar from the UNIAN Information Agency also received serious injuries. According to the agency’s Picture Editor Iryna Timofeeva, Volodymyr had injuries to his legs. Press photographer for the newspaper «Kommersant» Oleksandr Techynsky also suffered a broken arm during the scuffle. According to the victim, the police who were present during the incident, did nothing to stop the journalists being assaulted.

 Correspondent for the information programme «TCN» on TV Channel «1 + 1» Zhan Novoseltsev received threats at the end of November. The anonymous threats began after a feature on the programme about corruption in the law enforcement agencies. The Head of the Department of Information and Socio-Political Broadcasting on «1 + 1», Natalya Katerynchyk asked the Prosecutor General’s Office and the Head of the Security Service [SBU] to temporarily provide the journalist with a personal guard.

 Her appeal states: «The author of the project, Zhan Novoseltsev in his reports talks about those who have unlawfully been imprisoned, or who say that they’re guilty after being tortured by police officers, about stories of punishment without a crime and shocking details about things that don’t usually find their way into police reports and official statistics of the Ministry of Internal Affairs. Obviously far from everybody was thrilled at the idea of such a project. That’s in the first place those who are afraid of being punished for crimes which had up to then not been uncovered due to protection from their police uniform». According to Zhan Novoseltsev, the threats began the day after the first feature was shown. «I don’t understand who it could be. However the threats come from several sources. Firstly, the people who took part in the feature have been clearly given to understand that «you’re done for, and so is your journalist.» Secondly, my wife was phoned from an unknown number. They repeated the threats together with foul language. For that reason the management decided to play safe», the journalist explains. He says that during work on the parts of the series conflict situations have arisen which could lead to threats against him.

 

3.2 Arrests and detention of journalists

On 25 May 2008, during the early elections for Kyiv Mayor and City Council Deputies, journalists from the newspaper of the All-Ukrainian Association [VO] «Svoboda» Taras Bondar and Mykola Kindzersky were detained by police officers near polling station No. 53. «The journalists who came to carry out their professional duties by following the voting and preparing a report for our publication had not even managed to get to the building when the police officers felt an irresistible urge to take them off to the section for establishing identity», the Chief Editor of the newspaper Halyna Myts recounts. She says that the journalists showed their ID, however this had no effect on the police and the Head of the polling station had supposedly said that represents of the publication VO «Svoboda» [which is also a political party – translator] should be taken as far as possible from where the voting was taking place. The journalists were kept in the police station to check their identity for three hours.

On 14 July journalist from the Internet Publication «Ukrainska Pravda» Serhiy Leshchenko was forcibly taken to the Prosecutor General’s Office for questioning. In the evening, following over 7 hours of questioning, he was allowed to leave with an undertaking to return for more questioning at 9 a.m. on 16 July. He was taken to the interrogation by force since he had not come after receiving two summonses. The questioning was over an interview he took of the National Deputy David Zhvania.[10], which concerned the poisoning attempt on Viktor Yushchenko. However the journalist asserted that the questions were about many publications. The President’s Secretariat issued a statement condemning the forced questioning of the journalist.

In Poltava on 15 October the Editor of the local newspaper «Private Matter», Anatoly Banny was detained by the police. Banny had tried to photograph the detention by a patrol unit of activists of the youth organization «Tryzub». The police, according to Anatoly Banny, tried to grab his camera away from him and threw him to the ground, putting handcuffs on him and taking him to the patrol car. The journalist spent two hours in the police station where they tested him for alcohol. The doctor confirmed that he was sober, following which he was released.

Journalist from «Ukrainska Pravda» Vitaly Selyk was detained near the Kyiv City State Administration building where he had decided to cover a protest over an increase in prices for public transport.

Selyk was detained on Sunday near the Kyiv City Administration building when he decided to follow the protest action against the increase in the fares on public transport.

Having arrived at the place where the protest was taking place he saw two police cars hit each other and clapped. He was detained by a police officer. Selyk was taken by the arm however he tried to break free, saying that he would come without being led. It was for this that the journalist was held in custody for 24 hours, under Article 185 of the Code of Administrative Offences (refusing to comply with the lawful demand of a police officer).

Employees of the Security Service [SBU] on 28 November took journalist from the website «Daily.ua», Nazar Tsapko in their car in an unknown direction. He was not even given the opportunity to ring and say where he was being taken. Shortly afterwards the Head of the SBU V. Nalycvaichenko confirmed that the journalist was being questioned by the SBU over the publication on the website of a document about a sale of weapons by Ukraine.

 

3.3 Proportionality of punishment for abuse of freedom of speech

After a spurt of law suits against the media in 2006, there has been a fall in these. The reduction, moreover, is not only in suits filed, but in claims allowed.

 

Information about suits in law suits defending honour, dignity and business reputation against media outlets [11]

 

Indicator

2003

2004

2005

2006

2007

2008

1.

Under examination

-[12]

-

753

926

 

719

 

737

2.

Proceedings into the case concluded

627

514

441

605

490

494

2.1

including

With a ruling issued

308

250

246

356

265

281

 

2.1.1

Including where the claim was allowed

187

158

150

193

 

168

165

 

2.2

Termination of proceedings in the case

118

158

-

-

67

 

-

2.3

Case left without examination

151

141

-

-

150

 

-

2.4

Passed to another court

50

34

-

-

8

-

3.

Amounts in UAH of compensation for material or moral damage asked for

71 247 890

20 315 264

-

-

39 511 170

-

4.

Amounts in UAH of compensation for material or moral damage awarded.

4 534 785

591 591

-

-

636 562

-

 

It is important to point out that these statistics do not fully reflect the situation as regards the amount of moral compensation which media outlets have been ordered to pay. It does not include the court costs which the court orders the media outlet (respondent) to pay if it allows the claim. To these courts are added, among other things, State duty which can be a large amount. For example, a claimant may lodge a suit claiming a large amount. The suit is allowed, however the claim for moral damages could be turned down or significantly reduced. Nonetheless the size of the State duty from 1 to 10% of the size of the claim is still liable for payment by the respondent, this effectively being a new form of penalty or punishment.

According to data from the Association of Media Lawyers, overall from 1998 to 2008 according to an analysis of 738 court rulings, only 25% of claimants demanded retraction of information, while 70% demanded not only retraction, but also compensation for moral damages, and 1.37% that the media outlet’s issue be suspended

Only 7% had demanded compensation between 1 – 1, 700 UAH, while 68.7% wanted between 1, 700-170, 000 UAH, and another 25% hoped to receive more than 170, 000 UAH. Most claims for big amounts are allowed in the years following elections, and the most «greedy» claimants are politicians and public officials making up 48.8%[13]

The following are some examples of law suits.

On 24 September the Kyiv Court of Appeal partly changed the ruling issued by the Desnyansky District Court over the civil suit brought by Yury Sidorenko, Head of the Consulting Council of the consortium SSAPS [Single State Automated Passport System] against the company «Blitz-Inform» the editorial board of the newspaper «Business» and its journalist Maxim Birovash.[14]. The court totally turned down the claimant’s demand for moral compensation to the sum of 22 million UAH from «Blitz-Inform», and 5 thousand UAH each from Mr Birovash and the former Editor of the newspaper, Serhiy Kobyshchev. It did, however, uphold the part of the original ruling regarding retraction and prohibition on using the photography of the claimant. The court also ordered the claimant to pay 1 million 250 thousand UAH in connection with the appeal submitted by «Blitz-Inform». The Desnyansky District Court passed its ruling on 23 May 2008, after Yury Sidorenko filed a suit against «Blitz-Inform».for 46 million UAH damages in November 2007, and also paid duty of 4.6 million UAH. Maxim Birovash had published his journalist’s investigation into Ukraine’s passport system in «Business»[15] The National Union of Journalists put the judge of the Desnyansky Court who passed the ruling at Number one in their list of public officials who were «enemies of Ukrainian journalism» in 2008.[16]. The publication and journalist have lodged a cassation appeal against the ruling of the Court of Appeal.

The Head of the Kharkiv Regional Appeal Court Mykhailo Borodin took the TRC «For a» to court over a live broadcast on 25 July 2008 on the television channel AT TRC «Fora» in the press centre «Freedom Square» of a press conference given by National Deputy Yury Karamzin. A recording of the same broadcast was repeated 4 times, on 26, 27, 28, 29 July. The case was examined in the same Kharkiv region, that is, by a judge with regard to whom the Court of Appeal judge who is the claimant has considerable levers of influence. According to the Law «On the Judiciary», the Head of a Court of Appeal has controlling powers as regards all general jurisdiction judges in the region. On 1 September 2008 the Dzherzhynsky District Court in Kharkiv, after examining the claim, ordered the seizure of the property and liquid assets belonging to AT TRC up to 100 thousand UAH. The first instance court had ordered AT TRC «For a» to pay 74 985 UAH 33 kopecks[17]

Ihor Kalyetnyk, National Deputy (Communist Party faction) and Head of the Verkhovna Rada Committee on Fighting Organized Crime and Corruption, and Hryhory Kalyetnyk, former Head of the Vinnytsa Regional Administration lodged 8 suits against the Vinnytsa newspaper «33 Kanal» over value judgments expressed in the newspaper about the former and present activities of these politicians, as well as letters from the newspaper’s staff to the Speaker of Parliament and National Deputies over pressure on the publication. The total amount demanded in moral damages came to 710 thousand UAH. One of the claims for 270 thousand UAH was allowed by a local court. Later the Kyiv Court of Appeal upheld the ruling, however reduced the amount to 150 thousand UAH.[18]

The Head of the Okhtyrsky District Court in the Sumy region, Mykola Veres filed a suit against the newspaper «Panorama» and journalists D. Lytovchenko and O. Vesna, demanding 300 thousand UAH compensation for the publication «By lawlessness» which describes conflict between the Head of the Court and and a Deputy of the Sumy City Council Mr. Baidak. Information in the newspaper was based on statements made by Mr Baidak to the police. The claimant behaved arrogantly, stated during the hearing that «he’ll deal with the journalists without the court», and also demanded a ban on circulating any information about him. The first instance and appellate courts rejected the claim however the Supreme Court has sent it back for a new examination.[19]

 

Television and radio broadcasting

Overall in 2008 the National Television and Radio Broadcasting Council of Ukraine carried out 398 checks into the activities of television and radio companies [TRC], of which 203 were scheduled and 198 unscheduled. This means that 25% of all TRC in the country were subjected to checks.

As a result of the review of these checks at a meeting of the Broadcasting Council, 118 TRC received warnings, and applications were submitted to the court to cancel broadcasting licences for 5 TRC (three in Sumy and two in Kyiv..[20]

The most typical infringements identified were:

−  Failure to adhere to the licence conditions regarding specific items of the programme concept framework (44 TRC);

−  Breaching advertising legislation (25 TRC);

−  Insufficient programme of their own or domestic production (16 TRC);

−  Failure to adhere to the licence conditions regarding the language of programmes (16 TRC)

−  Breaches of legislation on protection of public morality (2 TRC)

−  Other infringements (6 TRC);

The most typical infringements of licensing conditions, licence requirements and legislation found in the activities of providers of programme services:

– Failure to adhere to the licence conditions regarding «general concept framework for programmes to be broadcast» (57 TRC);

–  Lack of agreements on the right to circulate programmes (5 TRC);

–  Not ensuring that subscribers get the full range of programmes (13 TRC);

–  Broadcasting foreign programmes whose content is not adapted to the requirements set out in Ukrainian legislation (13 TRC)..

 

3.4. Censorship

We cite here several examples of interference by the National Television and Radio Broadcasting Council of Ukraine [the Broadcasting Council] in editorial policy of TRC, and censorship of certain programmes. The issue of censorship for the purpose of protecting public morality is considered further down. The examples clearly demonstrate the methods and means of administrative influence on the content of programmes carried out by the regulatory body.

In February 2008 a number of civic organizations, associations of parties and particular viewers sent an appeal to the Broadcasting Council regarding the showing on certain television companies of the film «Moment of Truth» which claims that some representatives of the authorities and Ukrainian politicians are encouraging the spread of fascist ideology in Ukraine. The Broadcasting Council set out to obtain expert opinions on the accuracy of the historical facts and the legitimacy of the assertions contained in the film, as well as on the film’s compliance with legislation on protection of public morality and on whether there are legitimate grounds for showing it on television. It approached the History Institute of the Ukrainian Academy of Sciences, the National Expert Committee for the Protection of Public Morality, the Ukrainian Institute of National Remembrance and the Security Service [SBU]. Those State bodies found that the film «Moment of Truth» was lacking in objectivity, biased, partisan and that it contained elements in breach of Ukrainian legislation. In its conclusion, the National Expert Committee for the Protection of Public Morality stated that in accordance with Article 2 of the Law «On the Protection of Public Morality», it is prohibited in Ukraine to produce and circulated material which propagates war, national or religious emnity, fascism and neo-fascism, denigrates or offends a nation or individual, propagates disrespect for national and religious places of significance. On the basis of these conclusions the Broadcasting Council recommended that Ukrainian TRC refrain from broadcasting the film «Moment of Truth».

In June 2008 two Kharkiv television companies showed the film «Empire of Good». In analyzing the content of the film, the Broadcasting Council found that in the audiovisual material used regarding people linked with the Orange Revolution, there were attempts to discredit the present Ukrainian government and accuse it of conspiring with the former US President who was claimed to have provided moral, political and financial support to certain political forces. The Broadcasting Council pointed out that the viewer was offered only one view of events and facts which infringes the norms of editorial policy with regard to ensuring accuracy, objectivity, lack of bias and balance of information circulated by the TRC. The Broadcasting Council recommended that the television channels refrain from broadcasting the film «Empire of Good», produced outside Ukraine since its content «could arouse negative publicity and sharpen conflict within society, as well as being viewed as a negative step towards a country with which our country has diplomatic relations».[21] A strange reason for restricting freedom of expression. .

On 22 November 2008 the Broadcasting Council carried out a check of programme content of TRC in accordance with Presidential Decree № 856/2008 from 25 September 2008 «On measures linked with Remembrance Day for Victims of Holodomor[22] and the Rules on Television and Radio Broadcasting on Days of Mourning and Remembrance Days, passed by the Broadcasting Council. The results of the monitoring of nationwide, regional and local TRC showed that virtually all companies had made changes, bearing in mind the general mood of that day, and had also prepared their own projects in which the events which led to the genocide of the Ukrainian people were condemned.[23]

The Industrial Television Committee appealed in the administrative court against the above-mentioned Rules of Broadcasting. The District Administrative Court found unlawful in total the decision of the Broadcasting Council № 1101 from 11 June 2008 «On approving Rules on Television and Radio Broadcasting on Days of Mourning and Remembrance Days, and also banned the Broadcasting Council from applying them in legal relations regulating the activities of television and radio broadcasting organizations.[24]

 

3. Restrictions of freedom of expression of views in protection of public morality

The very existence of a separate State controlling body – the National Expert Commission for the Protection of Public Morality [hereinafter NEC or the National Commission), whose activity is directed solely at protecting public morality is not in keeping with democratic principles. In our view, the existence of such a body institutionalizes State censorship, the boundaries of which are not clearly defined and will be steadily broadened. At the present time one observes significant infringements of standards of freedom of speech due to the ever increasing activity of this State body.

Of concern must be the fact that «public morality» and «national security» are being equated, this being a potential source of serious restrictions on freedom of speech. The following is a highly contentious argument from a NEC decision from 23 June 2008.

«To state that the issue of protection of public morality and the of the moral health of civic society, prevention of propaganda of racial and national enmity, fascism and neo-fascism, disrespect for national and religious places of significance, insulting a nation or person on the basis of nationality, propaganda of drug addiction, alcoholism, smoking, as well as fighting denigration of the honour and dignity of the individual, and fighting the spread of pornography and violence are the constitutional duty of the State and a component part of the protection of Ukraine’s national security».

This quote, as no other, demonstrates the scale of the activity of the Commission for the Protection of Public Morality and the serious threat it poses for rights and freedoms.

NEC’s activities are generating considerable discussion over restriction of freedom of expression. At a meeting of the Verkhovna Rada Committee on Freedom of Speech and Information, Deputies considered the issue of NEC decisions and Broadcasting Council recommendations[25] regarding certain popular programmes. After a lengthy discussion involving National Deputies, representatives of television channels and the Head of NEC Vasyl Kostytsky, the members of the Committee on Freedom of Speech unanimously agreed a decision This «draws the attention of the National Expert Commission and the National Television and Broadcasting Council to the fact that their decisions and recommendations addressed to television and radio broadcasting companies with lists of programmes that the Commission considers should be avoided contain the hallmarks of interference in the editorial policy of television companies which is unacceptable from the point of view of safeguarding the constitutional principle of freedom of speech and current legislation regulating legal relations in the information sphere.».[26]

According to the European Convention on Human Rights and case law of the European Court of Human Rights any restriction on freedom of expression for the purpose of protecting public morality should be imposed solely on the basis of law and must be that necessary in a democratic society. As we will see from the following, legislation is lacking in clarity and foreseeability, and NEC’s decisions are not proportionate to the objective set.

 

4.1. Quality and clarity of legal regulation

The term «in accordance with the law» means the accessibility of such a law and compliance with the criterion of quality. It should be in keeping with the principle of the rule of law, and should have sufficiently clear formulations. This clarity should enable people to draw well-founded predictions given certain circumstances of the consequences which a particular action could have and to accordingly modify their behaviour. This requirement does not envisage absolute certainty which would totally exclude any possibility of interpreting the law when applying it. Nonetheless, it demands a certain level of foreseeability which varies depending on the content of a given law, the sphere it is aimed at, and on the number and status of people for whom it is intended.

If we apply these criteria, then it becomes apparent that the Law on the protection of public morality does not comply with the Convention on Human Rights.

The definitions of the terms in the law do not stand up to criticism. For example, the law defines products as of a pornographic, erotic or sexual nature. The definitions, however, do not provide clear criteria enabling one to choose a particular category.

For example, production of a pornographic nature – is any material objects, items, printed, audio- or video production, including advertising, reports and material, the products of the mass media, electronic forms of information the content of which is the detailed presentation of anatomical or physiological details of sexual acts, or which contain information of a pornographic nature. That is, if one removes what the word «production» means, then from this definition it turns out that production of a pornographic nature is production that contains information of a pornographic nature. The definition is thus tautological and does not give clear and foreseeable criteria making it possible to decide what fits that category.

The definition of production of a sexual nature is basically the same.

According to Article 2 of the Law «the criteria for adding production to that which is of a pornographic nature, are determined by a specially authorized executive body in the sphere of culture and art». The single such body is the Ministry of Culture and Science. Despite this being in breach of this norm of the Law and in excess of its authority, NEC passed a Decision on 20 February 2007 which approves «Criteria for classifying as pornographic or erotic production printed, audiovisual, electronic or other products, including advertising, as well as messages and material transmitted or received through communication channels». In further breach of legislation, this normative act was not registered with the Ministry of Justice although it directly pertains to observance of human rights.

On 11 November 2008, NEC adopted in its first reading a new version of these criteria.

It is not only the illegality of adopting these criteria which is baffling, but their content. For example, among fomal and substantive elements of pornography, we find the following:

-  The lack of plot, intrigue, context, character or mood in a work;

-  The use of a pseudonym;

імів;

-  a purely conventional link between different scenes and episodes;

-  the use of non-standard vocabulary.

However no less confusion is generated by the numerous value judgments in a law on the protection of public morality which in no way enables a person to predict how specific behaviour will be assessed.

For example, Article 2 of the Law on the Protection of Public Morality prohibits the production and circulation of products which:

-  propagate ignorance, disrespect to ones parents;

-  propagate religious hatred, blasphemy.

Overall it would not be possible for anyone to predict whether his or her behaviour would be deemed in breach of this Law. We therefore consider that the Law on the Protection of Public Morality does not meet the criteria of quality and requires clearer regulation to be in line with the requirements of the European Convention on Human Rights.

It should also be noted that the Law on the Protection of Public Morality envisages mandatory licensing for the circulation of production of an erotic or sexual nature, yet to this day no such licensing has been introduced.

In May 2008 a draft law «On amendments and additions to the Criminal Code of Ukraine (on the protection of public morality)» was tabled in parliament.[27] This proposes establishing liability for violations of the Law on the Protection of Public Morality, the running of events of an erotic or sexual nature, or sale of erotic or sexual publications, as well as the sale of any other products which harm public morality.

This law through its lack of terminological clarity gives enormous scope for restriction of freedom of speech through the application of serious criminal penalties. The parliamentary profile committee is proposing that the draft law be passed in its first reading, however there have not yet been hearings in parliament.

 

4.2. Discrimination in legal regulation

In accordance with the Criteria of Pornography passed by the Commission for the Protection of Public Morality[28], the characteristics of pornography are said to include images of abnormal or deviant forms of sexual relations, namely::

Homosexual relations close up, in full view, with demonstration of aroused genitals and intercourse. This includes in publications, where their special homosexual focus is not warned about in the publication’s details and on the cover (packaging) as an item with a sexual focus for a special audience;

– Demonstrate sexual relations with people who show clear signs of disability, defects and developmental anomalies, or clearly suffer from somatic or psychological illnesses.

According to these criteria any production is deemed pornography and banned for production and circulation which, in our view, is a demonstration of discrimination on the grounds of gender, sexual orientation, views and a person’s physical or psychological condition.

It was for this reason that circulation of the single national media outlet of the civic organization of gays and lesbians «Our World» was banned, and its Editor and the Head of the organization prosecuted for distributing pornography.

 

4.3. Appointment of members of the National Commission

Parliament on 20 November 2003 passed the Law «On the Protection of Public Morality», however for a whole year nothing further happened.

This was linked, in the first instance, with the impossibility, according to law, of forming an expert and controlling extra-departmental State body in the sphere of protection of public morality – the National Expert Commission of Ukraine for the Protection of Public Morality. According to Article 18 of this law the makeup of this Commission should be approved by the Cabinet of Ministers at the submission of the Head of the Commission, however the Head of the Commission was to be elected by the members of the Commission. It was not possible to fulfil both these conditions when creating the Commission.

Despite this failing in the law, the Cabinet of Ministers in its Instruction No. 862 from 17 November 2004 approved the makeup of the National Commission. At the same time, through Cabinet of Ministers Instruction № 1550 from 17 November 2004 it approved the Provisions on the National Commission, as well as setting a top limit of 90 employees.

After minor changes to the makeup of the Commission, the Cabinet of Ministers with Instruction № 294 from 27 July 2005 again approved the basic makeup of the Commission, however with the same Instruction Yury Boiko was appointed Head of the Commission. Thus, in breach of the Law, the Instruction appointed both members of the Commission and its Head.

However in practice the Commission still did not work and meetings were virtually not held.

With Resolution № 97 from 1 February 2006 the Cabinet of Ministers again changed the Head of the Commission, this time appointing Natalya Sumska. Soon afterwards, with Instruction № 614 from 5 April 2006, the Cabinet of Ministers once again approved a new makeup of the Commission, although the old makeup was virtually not changed. According to members of the Commission, one meeting was held at which no specific decisions were taken.

Resolution № 1012 from 26 July 2006 dismissed Natalya Sumska from her position as Head of the Commission.

However after a certain amount of time the Cabinet of Ministers, through a new Instruction, revoked the previous two changes to the makeup of the National Commission, with the members now effectively those who were in the original makeup back in 2004. This was done since these two Instructions of the Cabinet of Ministers were supposedly adopted with violation of Article 18 of the Law «On the Protection of Public Morality».[29] Yury Boiko once again headed the Commission.

Later the makeup of the Commission changed more than once due to the formation of a new government and new representatives of the ministries, as well as for other reasons. At the same time the Head of the Commission also changed with Oleksandr Kurdinov, who had worked in the State Committee for Television and Radio Broadcasting being appointed on 5 December 2007.[30]

However the government changed yet again with this leading to another makeup of the Commission between adopted.[31] At virtually the same time, on 25 June 2008, Vasyl Kostytsky was appointed Head of the Commission.[32]

Such constant changes explain the low level of public activity of the National Commission.

Thus, although the National Commission is made up of representatives of the authorities, journalists, writers, actors, etc, the criteria and procedure for choosing members are unknown. We would also note that the actual procedure for appointing the Head of the Commission is in breach of the Law «On the Protection of Public Morality».

The Resolutions appointing members of the Commission are also effectively unlawful. On the one hand such appointments have not been made upon the submission of the Head of the Commission as required by law. On the other, according to the Law, the term of office is 5 years, although as we see, membership has normally lasted one or two years.

4.4. The powers of the National Commission

The National Commission has the following main controlling and regulatory powers:

-  carrying out assessments of any products, works and events to ascertain whether they comply with the Law «On the Protection of Public Morality» (the Law);

-  carrying out checks of compliance with the Law.

Where the National Commission gives a negative conclusion regarding products, works and events, their circulation or running is prohibited altogether or permitted given adherence to reasonably strict conditions. It is not clear from the Law whether the opinion must be formalized in a Commission Decision. In practice, the absolute majority of opinions are given by employees of the Commission and are not approved through Commission Decisions. Thus, the members of the Commission do not have any impact at all on these opinions.

In accordance with Article 17 § 3 of the Law, and Article 10 of the Provisions on the National Expert Commission of Ukraine for the Protection of Public Morality, the Commission’s Decisions must be enforced. The Decisions are passed by a majority vote at the Commission’s meetings.

Failure to enforce a National Commission Decision can lead to disciplinary and criminal liability, and the National Commission can also initiate the revoking of licences of those involved in economic activity who violate the law on protection of public morality (Article 19 of the Law).

Moreover, all products which, according to the National Commission’s conclusion, do not meet the requirements of the Law, or whose circulation takes place without such a conclusion, are liable to be removed from sale.

In order to exercise its powers, the National Commission has the right without a court order to demand documents and products from the authorities or individuals / entities involved in economic activity. This even exceeds the authority of the law enforcement agencies which must receive a court order to carry out the same actions.

4.5. Censorship

According to the Law «On the Protection of Public Morality», without a preliminary positive conclusion from the National Commission the following are prohibited:

-  the holding of any visual performances of a sexual or erotic nature by individuals or legal entities;

-  the sale and distribution of printed production of a sexual or erotic nature;

-  the sale or hire to the public of production of electronic media of a sexual nature, production and audio or video cassettes with recordings of a sexual or erotic nature;

-  public demonstrations of cinema, audio or video production of a sexual or erotic nature.

 Bearing in mind that the criteria for placing production in these categories are obviously neither clear nor foreseeable, it is extremely difficult to fulfil this condition.

Prior control over the issue of information and production is obvious censorship.

This requirement of the Law is thus in direct breach of Article 15 of the Constitution and Article 45-1 of the Law on Information which both directly prohibit censorship as is any requirement to agree the content of information in advance with a body of power.

4.6. Compliance of the restrictions with the criterion of being that «necessary in a democratic country»

According to Article 10 of the European Convention on Human Rights, freedom of expression may be restricted for the purpose of protecting public morality however such interference must be «necessary in a democratic society». The State has wide discretionary powers with regard to needs and necessary of such restriction. However such decisions must be proportionate, that is the possibility of alternative measures must definitely be assessed, as well as the seriousness of the sanctions leading to such a decision.

Criminal persecution of the leader of the organization of gays and lesbians «Our World» for publishing his own newspaper can hardly meet the criterion of proportionality. Not only has the publication been deemed pornographic effectively only for the images of homosexual relations in accordance with the criteria of pornography, but he faces imprisonment for this.

It will also be difficult to assess actions of the authorities involving prohibition or repressive actions when a person circulates a work with the use of certain restrictions in access for minors. For example, the above-mentioned publication of an organization of gays and lesbians was circulated only in a closed envelope and on subscription and was not freely sold.

4.7. The problem of appealing against the actions of the National Commission

Problems are encountered if one wishes to appeal against a National Commission Decision or expert conclusion.

On the one hand, for an unknown reason and in breach of the Law, the courts regard the expert conclusions are recommendatory, and therefore not able to be revoked by a court. The problem is exacerbated by the fact that these conclusions are not confirmed through Commission Decisions, and it is therefore not clear whether they are Decisions which can be appealed against. If they are not Decisions, then the question arises of who is the relevant respondent in such a case. In other words, there are problems in a legal sense, with filing a law suit, where the respondent is the National Commission although as a collective body this did not take any decision.

However a greater problem is the lack of clarity in the Law «On the Protection of Public Morality».

Pursuant to Article 20 of this Law, the expert conclusions of the Commission may be appealed against in civil proceedings. On the basis of this, administrative courts refuse to consider such cases, despite the fact that the appeal is against the actions of a State body. Civil courts have also refused to accept such applications because the dispute involves the sphere of public law, and appeals against the actions of State bodies of power should come under administrative proceedings.

It is because of this that no Decision of the National Commission has been appealed against in the courts, although the first such suits were filed back in 2007.

 

4.8. Overview of the activities of the National Expert Commission for the Protection of Public Morality

There is no annual information provided on the activities of the National Commission. A considerable number of Commission Decisions are also unavailable, while the expert opinions are not available to the public at all.

Combined table of activities of NEC experts

(1 June 2006. – 31 December 2007)[33]

Type of product

Number of items

DVDs, CDs and videos

3155

Printed media (journals, newspapers, books, brochures, leaflets, etc)

491

Advertising (clips and external advertising)

29

TV programmes

33

Production of a sexual nature

516

Specially designated places

70

Systems for collecting information (hard disks)

7

Content from mobile telephones

2765

Computer games

46

Internet sites

6

photographs

88

Shows and other visual events

6

 

Just in that year and a half the National Commission issued 864 conclusions, the absolute majority of which were not reviewed at National Commission meetings and not confirmed in the form of Commission Decisions.

During the same period, the National Commission initiated 68 checks of specially designated areas for the sale of production of a sexual nature and the holding of visual events, and 799 prophylactic raids were carried out.

In 2007, on the basis of National Commission conclusions, 131 criminal investigations were initiated under Article 300 of the Criminal Code (selling production propagating a cult of violence and brutality) and Article 301 (selling pornography), this being 33.7% more than for the analogous period in 2006.

In November-December 2007 the National Commission carried out monitoring of the media regarding «the issue of violence and cruelty in children’s environment, propagating smoking, child pornography, homosexuality, the results of checks by the law enforcement agencies of observance of current legislation on the protection of public morality». For example, during a week (20-27 November 2007) information was provided regarding checks carried out by the Prosecutor’s Offices in the Rivne, Sumy and Ivano-Frankivsk regions regarding adherence to the Law «On the Protection of Public Morality». As a result of these checks, the Ivano-Frankivsk Regional Prosecutor’s Office initiated 4 criminal investigations, issued 57 documents of Prosecutor reaction which set out the demand that those responsible be brought to answer in accordance with the law. In the Rivne region, on the basis of a National Commission conclusion, a criminal investigation was initiated over the distribution of the Tarantino film «Hostel-2» which it is asserted propagates a cult of brutality and violence, and an investigation is underway over the posting on the Internet of an amateur video made by Rivne teenagers who call themselves the «Rivne dopes».[34]

The following are some National Commission Decisions

Following monitoring of TV channels, the Commission states that it established that the series «Matryoshka dolls from the cover» of the soap opera «Happy together», broadcast on «Novy kanal» is, in accordance with Article 1 of the Law «On the Protection of Public Morality», production of an erotic nature, and violates the requirements of Article 7 § 4 of this Law. The National Commission therefore decided to inform the management of «Novy Kanal» that in accordance with the said Law, the use of an image of minors in production of a sexual or erotic nature is prohibited. Over the infringements identified, it also decided to approach the Ministry of Culture and Tourism with the request to use the means envisaged in legislation to prevent the violation by the TRC of current legislation on the protection of public morality. This series of the soap opera was banned.[35]

The National Commission passed a decision regarding the need to carry out monitoring of the printed media sent to public libraries to check that they comply with legislation on the protection of public morality. In order to carry this out, it was decided to approach the Ministry of Culture and Tourism suggesting joint monitoring of material reaching libraries under the jurisdiction of regional Departments of Culture and Tourism, to the Central Department of Culture and Art of the Kyiv City State Administration, the Department of Culture and Tourism of the Sevastopol City Administration and the Ministry of Culture and Art of the Crimea.[36]

The National Commission checked three programmes shown at various times from early morning on specific days: «Material evidence», «Witness» and «The most notorious Ukrainian maniacs», and found infringements of legislation on the protection of public morality, namely:

-  many features talking about various murders, with documentary film of the mutilated bodies of victims;

-  they contain detailed descriptions of crimes committed;

-  no special indicators for this category of programme[37].

In order to observe the requirements of the Law «On the Protection of Public Morality», the National Commission decided to find that the information contained in these programmes:

-  could harm the physical, intellectual and spiritual development of minors, young people;

-  may be used to commit crimes which in their content would copy or be similar to those shown in the programmes;

-  violates legislation on the protection of public morality, namely Article 62 § 2 of the Law «On television and radio broadcasting», and Article 2 § 2 of the Law «On the Protection of Public Morality».[38]

In another case an advertisement for the computer technology «Impression S.T.A.L.K.E.R.» contained the image of a young man holding an automatic rifle which NEC considered, to be prohibited under Article 20 § 4.1 of the Law «On advertising».[39] The advertisement was banned solely on the grounds of the automatic rifle.

As we see from these examples, in its decisions NEC does not indicate its arguments as to why one or other work breaches the law on the protection of public morality. It confines itself to merely stating the fact of non-compliance which provides too broad a scope for interpretation. In these decisions there is often even no mention of the relevant expert opinions on which the decisions were supposed to be based. This situation makes it possible to ban or restrict circulation of a work effectively at ones own whim or discretion. Another problem together with this is the difficulty of appealing against such a decision since it is unclear what arguments were used to reach the decision.

In the absolute majority of cases the NEC Decision is passed with the individuals or legal entity that it pertains to being invited, meaning that they do not know what is being discussed and what NEC’s arguments are, and cannot present their point of view in response to the Commission’s arguments.

For example, when the novel by Oles Ulyanenko «The Woman of his dream» was found to be pornographic, and therefore banned, no arguments were given in the letter to the author about what made the work pornographic. When the author asked, he was sent NEC Conclusion No. 32E from 2 February 2009. However this conclusion was not approved by a NEC Decision, but only by the Acting Head of NEC A. Polok. In this conclusion it is stated that «if a work contains even one episode which falls under the definition of pornographic, the entire publication receives this assessment.» Later the conclusion asserts that:

«Furthermore there are episodes in the work where the main aim is to depict in flagrant and naturalist manner the act of sexual intercourse of the character with anatomical details of sexual organs, oral-genital, oral-anal, petting, fisting, masturbatory or ejaculatory actions (for example, pp. 8-11 of the manuscript) and the description of the characters satisfying his lust. Moreover the artistic mastery, linguistic skills of the author could arouse lower instincts in the reader, which gives grounds for declaring it pornographic.»

This is NEC’s entire argumentation which is in full, together with two other works, contained on 4 pages of a conclusion where a significant part is citing legislation.

Clearly the given decision is lacking in argumentation, and yet the work of a laureate of the prestigious Shevchenko Prize in general concerned with the consequences of moral degradation of society, remains banned.

 

4.9. The activity of the National Television and Broadcasting Council regarding the protection of public morality

Carrying out control over the programme content of Ukraine’s television and radio broadcasting organizations, the Broadcasting Council has on many occasions established the presence of programmes whose content has elements suggesting infringement of legislation on the protection of public morality. All programmes identified have been passed by the Broadcasting Council to the National Expert Commission on the Protection of Public Morality with the request to provide an additional opinion regarding their content. If violations of the Law «On the Protection of Public Morality» have been confirmed, the Broadcasting Council has considered these cases at meetings, using the appropriate measures within the boundaries of its powers with respect to the TRC.

During 2008 the Broadcasting Council sent over 20 applications to NEC asking for the latter’s assessment as to whether the content of programmes broadcast on national, regional and local TRC complied with the norms of current legislation.

It requested, for example, NEC assessments regarding compliance with legislation on public morality of the following television programmes, etc

Ø TRC «Kyiv» – advertising clips presented as social advertising,

Ø ІСТV – the programes «Naked and funny», and four others, one film and a soapbox opera

Ø Inter – a concert by Russian show producer and comedian Maxim Galkin «We’re together again»; two films and a programme;

Ø M1 – the programme «Weather»; a video clip and the cartoon the Simpsons;;

Ø НТН four programmes, including «Witness» and «The most notorious Ukrainian Maniacs»

Ø Novy Kanal – the programme Camera Club and television soap «Happy together»

Ø TRC «Studio 1+1» – a film and ad for crisps «Sancho»

Ø СІТI – the programme «Secret life of women. Porno»

Ø К 1 – the film «Wild Orchids»;

Ø «Musical television» – the musical serials «Southern Park» and «Beavis and Bathead»[40]

 

 

5. 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. For this amendments are needed to the law on publishing.

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. For this the understanding of advertising and campaigning should be more clearly defined.

7) Paid sponsorship of news items should be prohibited by law

8) 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..

9) 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, as well as the recently ratified European Convention on Transboundary Television..

10) 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 (for example, Recommendation No. R (94, (13), OSCE and the European Union; to introduce necessary procedure for punishing those who infringe legislation on the concentration of the media.

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

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.

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, dissolve the National Expert Commission on the Protection of Public Morality, passing some of its powers to other State bodies, as well as removing preliminary control over the distribution of films, etc (censorship).



[1] Prepared by UHHRU Executive Director Volodymyr Yavorsky

[2] Information on the main results of the work of the Ministry of Justice and its territorial bodies in 2008 and tasks to increase the efficiency of its work in 2009 http://www.minjust.gov.ua/.

[3] Adopted by Cabinet of Ministers Instruction No. 653 from 15 August 2007.

[4] Ministry of Justice Order No.2018/5 "On amendments to the Provisions on the State Register of Printed Media Outlets and Information Agencies” from 21 November 2008

[5] Report of the National Television and Broadcasting Council for 2008, www.nrada.gov.ua.

[6] The Court revoked paragraph 3 of the decision issued by the National Television and Broadcasting Council N 1706 from 28 November 2007 – annulling Licence No. 0500 from 11 December 2002 with regard to broadcasting on the frequencies indicated in Appendix No. 3 to the licence, removing from Appendix No. 3 the frequencies which were not being used; paragraph 4 of the decision No.1706 from 28 November 2007 – annulling Licence No. 0500 from 11 December 2002 with regard to broadcasting on the frequencies indicated in Appendix No. 3 to the licence, removing from Appendix No. 3 the frequencies which were not being used, and announcing a competition to receive a licence for broadcasting; paragraph 5 of the decision issued by the National Television and Broadcasting Council N 1706 from 28 November 2007– in accordance with Item “b” of Article 59 § 1 of the Law on Television and Radio Broadcasting to oblige the National Radio Broadcasting Company of Ukraine to submit documents for making the relevant amendments to their licence..

[7] Based on data from many years of monitoring by the Institute for Mass Information : http://www.imi.org.ua

[8] According to Ministry of Internal Affairs [MIA] data posted on its website: http://mvs.gov.ua/mvs/

[9] From Institute for Mass Information material unless otherwise indicated

[10] http://pravda.com.ua/news/2008/7/7/78459.htm. Information in English can be found at: http://www.khpg.org.ua/en/index.php?id=1216084696

[11] Data from the State Judicial Administration for various years

[12] “” means that we lack full information.

[13] « Their hypnosis is our fear” // http://www.telekritika.ua/media-corp/prava/2008-06-06/38854

A slightly abridged version is available in English here: http://www.khpg.org.ua/en/index.php?id=1212763363

[14] We mentioned this case in last year’s report as one of the most flagrant violations of freedom of speech.

[15] Court revokes massive compensation award against a newspaper and journalist // KHPG website http://www.khpg.org.ua/en/index.php?id=1222284680

[16] National Union of Journalists names enemies of journalism http://www.khpg.org.ua/en/index.php?id=1241074877

[17] The compensation claim and the respondent’s comments are at http://maydan.tv/articles/r271/p2 and http://www.maydan.tv/articles/r270/p2/.

[18] National Union of Journalists names enemies of journalism http://www.khpg.org.ua/en/index.php?id=1241074877

[19] Ibid.

[20] Report of the National Television and Broadcasting Council for 2008, www.nrada.gov.ua.

[21] Ibid.

[22] In fact the word is Holodomor in the plural, since the famines in the early 1920s and soon after WWII are also seen as having been manmade. Since the terrible crime of Holodomor 1932-1933 is finally becoming known, it seems better to restrict the use of the word in English [translator]

[23] Ibid.

[24] The ruling of the District Administrative Court in Kyiv is available in Ukrainian on the ITK website http://www.itk.org.ua/index.php?option=com_content&task=view&id=280&Itemid=37.

[25] Cf. the Internet publication “Telekritika”, http://www.telekritika.ua/news/2009-01-19/43196.

[26] Committee on Freedom of Speech and Information speaks out against interference in editorial freedom

http://www.khpg.org/en/index.php?id=1232621060.

[27] Draft Law № 1340 from 15.05.2008, author – National Deputy Gennady Moskal

[28] NEC Decision No. 1 from 20 February 2007.

[29] Cabinet of Ministers Instruction N 614- «Issues of the National Expert Commission of Ukraine for the Protection of Public Morality».from 8 August 2007

[30] Cabinet of Ministers Instruction from 10 October 2007 N 855 “On changes to the makeup of the National Expert Commission of Ukraine for the Protection of Public Morality” from 5 December 2007 N. 1095 “On the makeup of the National Expert Commission of Ukraine for the Protection of Public Morality”

[31] Cabinet of Ministers Instruction from 11 June 2008 N 835 «On approving the makeup of the National Expert Commission of Ukraine for the Protection of Public Morality”

[32] Cabinet of Ministers Instruction from 25 June 2008 N 865 “On appointing V.V. Kostytsky Head of the National Expert Commission of Ukraine for the Protection of Public Morality”

[33] The work of the National Expert Commission for the Protection of Public Morality within the system of safeguarding the information security of the country (M. Boiko). NEC website: http://moral.gov.ua/

[34] Monitoring of the media with regard to the situation with public morality http://moral.gov.ua/.

[35] Decision of the National Expert Commission for the Protection of Public Morality from 18 December 2008 http://moral.gov.ua/. « The National Commission has banned one of the series of “Happy together” because of erotica // http://korrespondent.net/ukraine/events/752364/print.

[36] Decision of the National Expert Commission for the Protection of Public Morality from 27 January 2007 http://moral.gov.ua/

[37] Such programme indicators have not, in fact, been designated and there is a system of indicators only for films, and not for all programmes.

[38] NEC Decision No. 3 from 23 October 2008, http://moral.gov.ua/

[39] NEC Decision No. 6 from 7 October 2008, http://moral.gov.ua/.

[40] Report of the National Television and Broadcasting Council for 2008, www.nrada.gov.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/

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