search  
print

Human rights in Ukraine 2011. IX. FREEDOM OF EXPRESSION

   

[1]

1. General overview

The freedom of expression, free speech and access to information left much to be desired over past year. The year 2011 manifested the tendencies towards further restrictions of the said freedoms, namely:

1) restrictions of free speech in audiovisual and printed mass media led to further spreading of Internet publications and blogs as alternative space free from restrictions;

2) putting up obstacles for the journalists performing their professional duties;

3) increase in free speech restrictions in regional mass media and termination of operation of several independent local TV channels;

4) Supreme Rada’s consideration of the draft projects, which, if adopted, will lead to deterioration of situation with regards to the freedom of speech and mass media in Ukraine;

5) lack of consistent legislative reform aimed at safeguarding freedom of speech and access to information and journalists’ operation in Ukraine;

6) increase in the cases of violations of public freedom of expression and speech;

7) conflicts around redistribution of broadcasting market, instigated mainly by the National council for TV and radio broadcasting of Ukraine;

8) further spreading of self-censorship.

Analysis of the reasons, which lead to the restrictions of freedom of expression and mass media freedom, allowed identifying the following major reasons:

1) imperfect legislation with respect to freedom of speech and information and legal regulations of mass media status in Ukraine;

2) lack of transparency in the operation of the National council for TV and radio broadcasting of Ukraine, and, in particular, in the procedure and criteria of the competition, under which the channels and broadcasting frequencies are distributed;

3) spreading of practices, when politicians and bureaucrats approach independent mass media trying to persuade their staff to cover certain materials ‘correctly’;

4) administrative and economic levers of influence.

It is noteworthy that the past year demonstrated that freedom of speech is nothing but a phantom without governmental guarantees of economic freedoms, independent system of justice and private property. In particular, economic monopolies and entities dominating in the market, on the one hand, and dependence of the business on power bodies and local authorities, on the other, create a favorable ambience to suppress speech and information freedom. For example, it is due to the providers (telecommunications’ operators), who supplied the signal for TV channels, that the stopping of broadcasting on several channels in various regions in Ukraine (Kharkiv, Odessa, Cherkassy) became possible. Why due to them (i.e. telecommunications’ operators)? Because the size of their market depends significantly on local authorities, as their main income comes from the cable TV and Internet services they grant to the residents of multi-apartment buildings. The majority of the said buildings are managed by the city; therefore, it is easy to imagine that lack of loyalty among providers towards local self-governing bodies can lead to losses or some portions of the market. Naturally, the telecommunications’ operators themselves negate any pressure by the local authorities, in particular, the request of the local high officials to stop providing signal to the independent broadcasters. Besides, the telecommunications’ operators became aware that everything amounts to a dispute between the agents of economic operation. Meanwhile, this scenario is hard to believe, as in all three cases it was all about independent local mass media which criticized the operation of local authorities; besides, in Kharkiv three TV companies were cut off the air at once — all of them being in opposition to the local power.

The aforementioned facts show that constitutional and legislative guarantees are not enough to safeguard the freedom of speech. It is most important also to provide guarantees of economic freedom, right to private property and business independence from state power bodies and local self-governments.

The content of TV programs does not offer any grounds for optimism either. It also confirms further restrictions of freedom of speech in audiovisual mass media. The results of the research on the national TV channels broadcasts, carried out by “Telekrytyka”, showed that, if in July 2010 the channels ignored 56 important topics of the month, in September 2011 this figure increased up to 456[2]. The First National Channel ranked first in the number of hushed up topics.[3] Says Natalia Lygachova, “Telekrytyka” editor-in-chief:

“The quality of news, information and analytical weeklie, substantially deteriorated.[4] Monitoring held out by the Academy of Ukrainian Press[5], as well as “Telekrytyka” monitoring confirm this conclusion[6]. Another tendency, i. e. withdrawal from political and social topics for the sake of the social ones, with prevalence of “hot topics”, i. e. crime-related plots — is observed. And it is not about systematic felonies, but rather about everyday infringements and hooliganism. Let’s say, a case of corruption is covered only when law enforcement bodies (National Security Service or Ministry of Interior) are willing to share their “exclusive” materials…”

Natalia Lygachova argues that the main culprits of the situation described above, are: first, political pressure of power, both at national and local levels on mass media, whose owners and managers try to stay as far as possible from political and economic topics, just to be on the safe side; second, impossibility to broadcast the news as such, i. e. information needed for understanding of what is going on in the country and in the whole world — our mass media can do the ratings only by “yellow journalism” and gruesome stories.

2. Rights of journalists and mass media

In 2011 the journalists’ rights were frequently violated. According to the data compiled by the Institute of mass information, in 2011 all the violations fell under the following categories: economic, political, indirect pressure (36% of all violations), obstructing the performance of professional duties (33%)[7]. IMI also states that 20% of violations included beatings, assaults and harassments, while claims, filed in court against media or journalists, constituted only 4%; court claims, filed by journalists to protect themselves, amounted to 5%. The smallest share (2%) this year related to journalists’ detention or arrest[8]. At the same time, according to the experts interviewed by “Telekrytyka”, “the journalists’ rights unquestionably were violated more in 2011 .... In practical operation journalists were more often hindered in the performance of their professional duties[9]. Representative of “Reporters without Boundaries” in Ukraine Oxana Romanyuk in her interview, given to “Telekrytyka”, stated “if in 2010 they registered 20 cases of beatings, in 2011 this figure grew up to 25 cases, in which at least 35 journalists were injured. This statistics does not take into account mass confrontation in Pechersk court, were more than 30 media professionals were injured”[10]. Beating of journalists by militia in the course of protest action in front of Supreme Rada building on November 3 is also worth mentioning[11].

The obstacles which prevented reporters from performing their professional duties last year included:

—  actions of law enforcement entities and national guard, aimed at obstructing journalists’ operation;

—  prohibition of film-shooting;

—  numerous instances of confiscating and destroying journalists’ equipment;

—  presence of high officials at the meetings.

Data concerning media professionals — victims of crimes[12]

 

Victims of crimes

 

 

2006

 

2007

 

2008

 

2009

 

2010

 

2011

 

Media professionals

 

92

 

46

 

47

 

60

 

159

 

125

 

 

2.1. Assassinations, disappearance, assaults, threats
and other types of violence used against journalists

The disappearance of Kharkiv journalist Vasyl Klymentyev, reporter of “Novyi styl’” newspaper, still remains unresolved[13]. While killed journalist Gongadze’s case and events, which accompanied the case in 2011, in particular, court hearings and Kyiv Appellation Court resolution, which validated the ruling of Pechersk district court, nullifying the General Prosecutor’s Office resolution on filing the claim against ex-President of Ukraine Leonid Kuchma, allow classifying the judicial process as farcical.

2.2. Actions of law enforcement entities and National Guard,
aimed at obstructing journalists’ operation
and prohibition of film-shooting

On May 31 in Mykolayiv three journalists were assaulted by tax-militia officers, who tried to take away their cameras by force[14].

According to UNIAN information, the editor-in-chief of the “Novosti-N” site Anatoliy Onufriychuk reported that two reporters from his office came to a municipal department of tax militia, where, according to their information, several Mykolayiv businessmen have been taken for a “conversation” with the staff of Chief Directorate of the tax militia of Ukraine.[15]

According to the journalists, the businessmen were locked on the 7th floor of the premises and not allowed to talk to their lawyers, family or even paramedics, who arrived with an ambulance when one of the businessmen felt sick. [16]

When “Novosti-N” reporters started to shoot on camera an attorney’s efforts to break through the guard to get to his client, the tax militia officer, who guarded the entrance, twisted reporter’s arms, roughly tore his camera off his neck and took it to the closed part of the premises. Three hours later the camera was returned, but all the pictures were destroyed. After information on reporters’ assault became public, a “Prestupnosti.NET” site correspondent arrived. He also started to shoot the developments taking place in the tax militia premises. The journalist told UNIAN that after he proceeded to shoot the negotiations between an officer from Zavodsky raion militia department and tax militia officers guarding the entrance to the building, these latter tried to take his camera away from him. When the reporter offered resistance, four tax militia officers attacked him, dragged him into the closed part of the building, threw him on the floor and started to beat, demanding that he hands in his camera. To protect the camera, the journalist covered it with his body and fastened the camera belt to his wrist. After another tax militia officer appeared at the scene, the reporter was set free[17].

For several times motorcades of the President of Ukraine V. Yanukovych and other high officials became the cause of conflicts, as the journalists were forbidden to shoot events on their cameras. 1) On June 22 the journalists from “Vecherniye vesti” were forbidden by a national guard officer to take photos of Yanukovich’s motorcade, which was moving along Havan’sky bridge which is under construction, and Podil.[18] 2) On August 18 militia officers detained three journalists, from “Kordon”, “Agenciya zhurnalistskych rozsliduvan’” and Non-political news portal NGO.donetsk.ua, respectively, who were shooting on video President of Ukraine V.Yanukovych and a cortege of high officials, accompanying him at the funeral ceremony for the head of ARC Council of Ministers Vasyl Dzharta[19]; 3) On January 16 National Guard Department officers prohibited the journalists from TVi channel from shooting V.Yanukovych’s motorcade leaving presidential residence
“Mizhyhirya”[20].

Especially disconcerting is the fact these actions, despite all the evidence (video and audio tapes, witnesses) were not given adequate assessment by the bodies of justice, and the culprits were not held legally responsible. For example, the Appellation administrative court of Kyiv, responding to the claim, filed by STB journalist Serhiy Andrushko against National Guard Department, in which he asked the court to invalidate the Administrative court ruling, because he qualified the actions of NGD official as obstructing the performance of professional duties, left the first instance court ruling in force, thus denying the claimant the satisfaction of his claim.[21].

Appeals to journalists, like the one made by the Minister of Interior Mohylyov — “We ask the journalists: if you learn something about illegal doings — share this information with us…If a journalist fails to get in touch with law-enforcement bodies, these latter have a right to take journalist’s equipment away”- do not contribute either to the protection of journalists’ rights and, in particular, sources, in Ukraine[22].

Another obstacle to normal journalists’ operation despite new guarantees, spelled out in the new version of Ukrainian Law “On Information”, is created by lack of free access to and coverage of the official meetings. It is common knowledge that the meetings of collegiate subjects of authority, in particular, local self-government bodies, ARC Supreme Council et al., have always been important source of information for reporters.

Traditionally, i.e. before 2011, the accreditation system served as main justification for prohibiting independent mass media from attending these meetings. Specifically, denial of accreditation to the independent mass media made reporters “personae non grata” at the meetings.

That’s why it seemed expedient to include into the new version of Ukrainian Law “On Information” a provision, under which “Absence of accreditation cannot be the reason for preventing journalists and other media professionals from attending open events, held by the subjects of authority.”(p. 1 art. 26 of Ukrainian Law “On Information”). For example, the journalists do not require accreditation to be present at the local self-government’s meeting, court hearings etc.

Meanwhile the analysis of the accessibility of the open events, held by the officials last year no changes for the better. The main reasons for denial remain the same, i.e.

1) absence of any formal grounds, but pure physical obstruction of journalists’ attempts to attend respective meetings;

2) denial based on absence of journalists’ accreditation;

3) accusing journalists of spreading biased and incorrect information concerning the operation of authorities.

2.3. Examples

1. On February 15, 2011 a group of reporters from TV channel 5 was denied entrance to the court, where an open hearing of the appellation court of the “Road Control” organization activist’s Oleksiy Kyryenko was taking place.[23].

2. February, 2011 — a journalist from”Kakhovsky novyny” newspaper was driven out from raion executive committee meeting in Kakhovka.[24]

3. On July, 7 militia officers prevented mass media representatives from entering the premises of Pechersk raion court, where hearing of Tymoshenko case was held.[25]

6. On July, 14, 2011 a journalist was not allowed to be present at the meeting of Kyiv City council due to lack of accreditation.[26]

7. On July14, 2011 militia officers restricted journalists’ free access to the meeting of Odessa City council.[27]

8. On July, 28 2011 the reporters’ team from TRC “Primorye” was prohibited from attending the meeting of Kotovsk City council on the grounds that journalists should seek mayor’s permission and due registration 24 hours before the meeting.[28]

9. On August 26, 2011 Severodonetsk City council approved “Resolution on the accreditation procedure for mass media representatives”[29]. The resolution does not clearly specify that absence of accreditation cannot be the reason for denial of access to open events, held by the city council, to journalists and other mass media professionals. The journalists argue that this omission allows for obstructing non-accredited journalists’ operation[30].

10. On September 9 mayor of Khakhovka A.Karasevich ordered “Kakhovsky novyny” reporter to leave the premises where meeting of the city council was held.[31]

11. On September 22, 2011 militia officers prevented journalists from TV and radio broadcasting company “Nova Odessa” from entering city council building. The general producer of the company Pavlo Ivashkevich in his letter made this information public.[32].

12. Journalists from “Krym Segodnya” newspaper were removed from the open meetings of Saki city council several times.[33]

Besides, despite definite prohibition of denying journalists’ and mass media professionals’ attendance at the open events, held by the authorities, due to the absence of accreditation (p. 1 art. 26 of Ukrainian Law “On Information”), the local self-governments fail to introduce respective amendments to the normative acts regulating the procedure for local self-governments’ meetings; and, moreover, adopt the new acts, which do not reflect this provision or directly contradicts art. 26 of Ukrainian Law “On Information”.

The normative acts adopted in Odessa, Severodonetsk, Kyiv and Kharkov are vivid manifestations of neglect of respective provision of Ukrainian Law “On Information” . In particular, Odessa mayor, after the new version of Ukrainian Law “On Information” has come in force, passed an Order No. 579-01р of 23.05.2011 “On approving the regulations for controlled entrance to the administrative building of Odessa city council”,[34] which banns non-accredited journalists from entering the city council building. Evidently, in compliance with this order, “On working days, between 9.00 and 18.00 the representatives of printed and electronic mass media in possession of accreditation cards, issued by the information and public relations department of Odessa city council can freely enter the building through militia check-point” .

On August 26, 2011 Severodonetsk city council, in its turn, passed Resolution No. 791 “On approving provisions for mass media accreditation procedure” which does not spell out a norm, under which absence of accreditation cannot be the reason for denying journalists’ and mass media professionals’ attendance at the open events, held by the authorities[35].

Kyiv city council has not yet introduced respective changes into the “Provisions for mass media accreditation procedure”, which is an addendum to the decision of the Kyiv city council of November 26, 1998, No. 66/167. This decision still is used as grounds for denying non-accredited journalists presence at the open events, held by the subjects of authority.[36].

Kharkiv city council provides another example of this norm’s neglect. It also failed to introduce the necessary changes into the regulations. In response to information request “Can non-accredited journalists and mass media professionals be present at the city council meetings and Kharkiv city council executive committee meetings?” the authorities advised that “in fact, under article 26 of Ukrainian Law “On Information” lack of accreditation cannot be the cause for denying journalists’ presence at such events”.

On the other hand, the next paragraph reads: “Please be reminded that under art.3 of the Regulations of Kharkiv city council of 6th convocation, accredited journalists, performing TV or film shooting, in due order, defined by the regulations, can be present at the open meetings of city council…Any journalist or mass media professional can be present at the meetings of the Kharkiv city council executive committee. To that end journalist, cameraman or press photographer can get temporary registration.”

Summing up, we have to recognize the fact of local officials’ disregard of art. 26 of Ukrainian Law “On Information”, as in many cases the accreditation or its lack can be a decisive factor in granting/denying journalists the right to be present at the respective meetings.

3. Freedom of speech in regional and local mass media

In 2011 we received a lot of notifications, concerning restrictions of independent journalists and mass media in different regions of Ukraine. In particular, the author of an article “Kids in the orphanage starve to death” Olena Dovzhenko who revealed the abuses, committed by Torez orphanage administration, had to quit her job in the editorial office of “Zhyttya” newspaper (which belongs to Donetsk oblast’ state administration) as a result of psychological and administrative pressure. The journalist stated that most negative attitude reigns among the editorial staff, journalists are insulted by the bosses, management behaves inappropriately[37].

In 2011 journalists from different regions of Ukraine provided information on pressure and abuses. Thus, the managers of a number of publications and journalists from Chernivtsy oblast’ revealed “outrageous facts of free speech suppression” by Chernivtsy mayor.[38] Editors’-in-chief of several communal local newspapers in Kherson oblast’ made public the facts of indirect pressure on journalists on behalf of local authorities. In particular, it was made known that leadership of the cities and raions of Kherson oblast’ forbade any publications containing critical evaluation of local authorities’ operation or written by the opposition members. Otherwise, they were threatened with dismissal.[39] Ukrainian magazine “Tyzhden’” informed that on October 21 Cherkassy TV channel “Ros” (Cherkassy oblast’ national broadcasting company) failed to broadcast the planned news block of Cherkassy news service. According to the journalists who preferred to stay anonymous, the program was cancelled because TV journalists were ordered to include material on incredible increase of Party of Regions’ rating in the oblast’ into the news.[40] However, public movement “Donbas without censorship” in response to systematic attempts to exert pressure on journalists, to audit illegally independent mass media by tax inspection, to interfere with publishing policies, started in Donetsk only.[41]

However, the events which transpired in fall 2011 were the most outrageous.

On September 13, 2011 three Kharkiv TV companies (ATN, “Fora” and “A/TVK” were illegally prevented from broadcasting all at once. All the said companies adhered to independent policies. Human rights activists classified these actions as violation of basic right of freedom of expression, spelled out in the art. 34 of the Constitution of Ukraine and article 10 of European Convention for protection of human rights and basic freedoms. In their open letter UHHRU and KhHRG stated that “various formal pretexts for cutting off TV channels, for example, “absence of sanitary passport” in ATN, alleged systematic non-payment for provider’s services in the case of TRCh “Fora” and alleged absence of contractual provisions for transmitting in the case of TRCh “A/TVK”, are nothing but instruments of political pressure”[42].

Overall, the grounds for cutting off the channels were illegal, as under p.1, article 64 of the Constitution of Ukraine rights can be restricted only in cases stipulated by the Constitution of Ukraine. Also, according to article 92 of the Constitution rights’ restrictions are regulated by the law only, and not by regulatory, normative-legal acts. Besides, the lawlessness of these actions is confirmed by the rulings of the European Court for Human Rights, which are the source of rights in the national legal system in compliance with p.1, article 17, of the Law of Ukraine “On enforcement and practical implementation of the rulings of the European Court for Human Rights”. In particular, the ruling on the case “Autronic AG vs. Switzerland” the Court found that “article 10 of European Convention on Human Rights is applied to any person, physical or legal and refers not only to the information content, but also to the means of transmission and reception, based on the fact that any restriction imposed on media, violates the right to receive and disseminate information”. It means, subsequently, that right to free dissemination of information can be violated not only by censorship of broadcasted information content, but also by creating technical obstacles to its transmission.[43]

Due to numerous appeals of human rights organizations and journalists, the situation in Kharkiv became the focus of attention not only of the Supreme Rada and the President, but also of OSCE.[44]. On September, 21 four members of the parliamentary Committee for freedom of speech and information of the Supreme Rada of Ukraine decided to approach President of Ukraine and Prosecutor’s Genereal Office of Ukraine protesting against ban on broadcasting imposed on three Kharkiv TV channels (ATN, ATV and “Fora”)[45]. Besides, people’s deputies approached Anti-monopoly Committee of Ukraine with the request to check whether the subjects of economic activity are not conspired against and discriminated by telecommunications operators. The Committee also decided to send an appeal to the Ministry of Health and Chief Sanitary Doctor of Kharkiv; to the Ministry of Infrastructure (concerning the operation of Kharkiv OBTC) and to the Ministry of Justice (concerning delayed registrations).)[46]

Moreover, an interagency work group was set up with a task of analyzing compliance with legislation on freedom of speech and protection of journalists’ rights. However, this group managed only to provide “joint recommendations elaborated on the basis of the results of the third meeting of the interagency work group with a task of analyzing compliance with legislation on freedom of speech and protection of journalists’ rights”, which had no consequences. Interagency group, in particular, offered the following recommendations to all the conflicting parties and Kharkiv and oblast’ officials:

1. Promotion of freedom of mass media operation in Kharkiv oblast’.

2. For the owners and share-holders of TV channels: resolution of disputes concerning TV property rights and management in compliance with the law; inadmissibility of restrictions of freedom of speech and information activity; use of measures leading to constructive dialogue with local authorities’ representatives.

3. Reporting to IWG on problems resolution in the informational space of Kharkiv oblast’.[47]

Unfortunately, campaign on restoring independent broadcasting in Kharkiv brought no tangible results, therefore, ATN and TRCh have not been on the air till now (February 2012). The situation with TRCh “For a” remains even more complicated, as this latter started broadcasting again right when director general of “Multimedia centre” LTD filed a claim with militia complaining about illegal attempts of former TRCh “Fora” share-holders “to get hold of the TV company” As of February 2012, the pre-trial investigation is under control of Kharkiv oblast’ prosecutor’s office[48].

Another provider’s attempt to cut off the broadcasting occurred in Odessa, where on October 25 TRCh “Kruh” was cut off the air. However, on November 8, TRCh representative informed that signal transmission was restored without using the networks of “CTV Odessa”LTD. According to TRCh representative “reinstalling the signal without using the networks of “CTV Odessa”LTD cost a lot of money”[49].

The scenario implemented in Kharkiv, and later, in Odessa, was used for the first time in Cherkassy. There on May18, 2011 at 9:00 am the cable provider, who holds monopoly at the local market of cable networks, cut off TRCh “Antena-plus” without any prior notification.[50] It was done contrary to “Antena-plus” license for broadcasting НР No. 0064-м of April 03, 2006, valid till 03.04.2016. Under the license provisions TRCh “Antena-plus” has to transmit its programs through Cherkassy city cable networks, which belong to the companies “Commercial TV-company “TGS”and “KETSiK”LTD, on channels SK-24 and SK-23 respectively for 24 hours a day. According to TRCh “Antena-plus” corporative rights of the aforementioned providers were eventually bought out by a foreign investment company “Volya”, which set up a subsequent proprietor in monopoly possession of all the cable networks in Cherkassy — “Cherkassy telecommunication systems (ChTS). At that point TRCh “Antena-plus” also approached the people’s deputies, but, similar to Kharkiv scenario, their transmissions were not restored.

Independent association of TV and radio broadcasters believes that presently telecommunication operators largely depend on power bodies, as а) the functioning of telecommunication operator totally depends on acquiring licenses for the use of communal property units (i.e. land plots, buildings and premises, cable channels etc.), which are allotted by the local administration and self-governance bodies; b) denial of the local authorities to grant the licenses can hardly be appealed in court, as such appeal entails a lot of expert assessments (technical, environmental etc.) Besides, the results of the expertise are evaluated by a judge, who is not a specialist in the matter, at his/her discretion. Therefore, is there is a number of contradictory expert conclusions, the first instance court (i. e., local court) usually rules in favor of expertise results complying with local authorities’ interests; c) protection of telecommunication operators’ right is outside the terms of reference of numerous national and international public and human rights organizations, as opposed to mass media rights protection; d) a significant number of cases was registered, when broadcasters were cut off the air or cable networks under various pretexts, (e. g. technical failures, official regulations etc).[51]

Independent association of TV and radio broadcasters submitted proposal to introduce respective amendments into the law, banning the pressure of local authorities on operators, which in this case become most probable source of pressure on TV companies, to the Supreme Rada committee for freedom of speech and information[52].

4. Restrictions of freedom of expression under the pretext
of public morality protection

For many people the issue of “public morality” has remained one of the most sensitive in Ukraine. In our previous reports we stressed more than once, that the Law of Ukraine “On public morality protection” and the operation of the National expert board (NEB) violate article 15 and article 34 of the Constitution of Ukraine. In early 2011 it looked as if the Supreme Rada of Ukraine would finally nullify this law, and, respectively, terminate the activity of the said board. However, the second reading of the draft law “On introducing changes to some laws of Ukraine (with regard to public morality)“ No. 6532 of 16.06.2010, which envisaged invalidation of the Law of Ukraine “On public morality protection”, was never approved. In its stead, a draft law No. 7132 was eventually proposed and passed on October 18 in the first reading. This draft law is in fact a new version of the Law of Ukraine “On public morality protection”. Constitutional and legal analysis of the draft law provisions allows arriving at the conclusion that they violate such fundamental constitutional principles as:

—  Right to free expression of opinion;

—  Freedom of writing, creative and scientific activity;

—  Academic freedom,

—  Freedom of information,

—  Principle of official non-interference into society operation.

But, first of all, the draft law violates the principle of supremacy of law, declared in the Constitution of Ukraine. In particular, according to the legal statement of the Constitutional Court of Ukraine “the principle of legal determination, under which restrictions of basic human and civil rights and implementation of these restrictions is acceptable in practice only under condition of existence of legal norms, entailed by such restrictions, is one of the supremacy of law components. In other words, any right restriction should be based on criteria which allow distinguishing lawful behavior from illegal and foreseeing the consequences of such behaviors. (Ruling of the Constitutional Court of Ukraine on duration of administrative detention) 10-rp/2011). However, the law provisions and definitions do not provide for distinguishing lawful behavior from illegal and foreseeing the consequences of such behaviors. For example, the definition of such legal constructions as “products harmful for public morality”, “disrespect of national and religious values”, “public morality”, “monitoring in the area of public morality protection”, “pornography”, “use of indecent, depreciative and brutal words” etc, do not provide any clue as to the criteria, which allow classifying certain expressions or works of art as harmful for public morality or disrespectful of national and religious values etc. Respectively, any person, exercising his/her right to freedom of speech, creative or scientific activity in a given moment can classified as violator of the he Law of Ukraine “On public morality protection” with subsequent negative consequences, without even being aware of the fact. It means, by definition, introduction of auto-censorship and violation of right to freedom of opinion, speech and expression of one’s beliefs and views.

Besides, the law provisions violated p. 2 of the article 19 of the Constitution of Ukraine under which the “ the state power bodies and local self-governments, their officials shall act only on the basis, within the competences and in the mode prescribed by the Constitution and Ukrainian Laws”, as the goal of p. 2 of the article 19 of the Constitution of Ukraine alongside with spelling out the principle of ideological diversity (article 15 of Constitution of Ukraine) and fundamental human rights defend in chapter 2 of the Constitution of Ukraine — is establishing strictly defined boundaries (frames) of official interference into the private life of a person. In particular, under the Law of Ukraine “On public morality protection”, the official bodies are granted the competences allowing them to establish total control over the freedom of free information exchange, which is contradictory to the concept of free information and, in general, uncharacteristic of democratic countries. It means that the draft law, if passed, can lead to the violations of the Constitution of Ukraine by the state, specifically, the violation of the right to express one’s opinions freely, without danger of being penalized for the criticism of the official policy.

Moreover, the draft law contains a norm which is a brutal breach of the fundamental principle of freedom of information, declared at the first session of UN General Assembly in its Resolution 59 (I) “Convocation of international conference on freedom of information”; eventually this concept found its reflection in the General declaration on human rights, International pact on civil and political rights etc. It is well known that the freedom of information concept grants the freedom to seek, obtain and disseminate information by any means and independently of state borders. The norms, violating, and, actually, invalidating the principle of freedom of information in the legal constructions and provisions of the draft law, include, among others, the following:

“In compliance with court ruling the content, harmful for public morality, including children pornography, should be removed by appropriate technical means from the Internet national segment; and, if posted outside Ukraine, access to it from the Internet national segment should be safely blocked”;

“Right to information space free from materials, harmful for physical, intellectual, moral and psychological condition of a person” etc.

It is also noteworthy that defining the legal procedures stipulated by the law, in particular “implementation of monitoring in the area of public morality protection”, “setting up Unified specialized information- telecommunication system” means that the state is violating the provisions of its own Constitution, trying to replace a democratic law-abiding state (article 1 of the Constitution of Ukraine) with authoritarian state. Moreover, the authors of the proposed amendments openly speak about the possibility of introducing “measures…of propaganda for public morality protection”, which means that they break the prohibition spelled out in the article 15 of the Constitution of Ukraine — “no ideology shall be recognized by the state as obligatory”.

Into the bargain, the law itself is full of contradictions. For example, it says that the supremacy of law and ban on censorship is one of its underlying principles; meanwhile the norms of the draft law are formulated in a way which violates the principles quoted above.

Taking into account the fact that the draft law “On introducing amendments to the Law of Ukraine “On public morality protection” contradicts articles 1, 8, 15, 19, 21, 22, 34, 54 and 64 of the Constitution of Ukraine, international obligations with respect to the freedom of information, in particular, Resolution 59 (I) of UN General Assembly “Convocation of international conference on freedom of information”; article 19 the General declaration on human rights, article 19 of the International pact on civil and political rights, article 10 of the European Convention on human rights and basic freedoms etc, the said draft law should be revoked.

5. Recommendations

1. Article 34 of the Constitution of Ukraine should read as follows:[53]:

1. Everyone has the right to freedom of expressing one’s views. This right includes the freedom to adhere to one’s views, obtain and disseminate information and ideas without any interference from the state power authorities and independently of state borders. This article does not preclude the state from exercising licensing of TV and radio broadcasting companies or movies enterprises.

2. Exercising of these freedoms is related to duties and obligations; therefore it can be subject to formalities, conditions and restrictions or sanctions, stipulated by law and necessary in a democratic society for the benefit of national security, territorial integrity or public safety, in preventing crime and unrest, safeguarding public health, protection of rights and reputation of individuals, preventing the divulging of classified information or for supporting objectivity of the court.

3. Freedom of expression in the works of literature, art and scientific research shall be completely unrestricted.

4. Freedom and pluralism of mass media shall be guaranteed.

2. The term “information security” shall be taken out of the part 1, article e 17 of the Constitution of Ukraine.

3. The actions enumerated in the articles 301 and 338 of the Criminal Code of Ukraine, i. e. the articles which stipulate criminal responsibility for “ defilement of national symbols of Ukraine” (article 301) and “dissemination of materials, images and works of pornographic nature” (article 338), shall be de-criminalized.

4. Amendments to the Law of Ukraine “On TV and radio broadcasting”, under which open competitions for obtaining broadcasting licenses, related to the use of frequency resource and free channels of multi-channel networks shall be replaced with open auctions, should be introduced.

5. The Law of Ukraine “On public morality protection” should be banned. National expert board for public morality protection shall be disbanded.

6. The Law “On de-nationalization of mass media in Ukraine”, containing the program for reforming national and communal mass media through the changes in their management and funding in compliance with EU and OSCE recommendations, should be passed.

7. The Laws “On mass media coverage of the operation of public authorities and local self-governments in Ukraine” and “On state support of mass media and social protection of journalists” should be nullified; privileges of national media journalists shall be cancelled, and they will have the same status as non-governmental media reporters.

8. Draft law on journalists’ rights, based on concepts, developed by Derzhteleradio and draft law No. 9175 of February 27, 2006 “On protection of the journalists’ professional operation”, should be devised. This is a most crucial practical issue as the rights of TVRBO journalists, for example, are not defined by the law at all.

9. The registration procedure for the printed mass media shall be simplified in compliance with the requirements of the article 10 of the European Convention on Human Rights Protection.

10.      The law on personal information protection should be harmonized with the international standards.

11.      The legislation related to defining the real owner of media, in particular, of TV channels and radio broadcasting, and cross-ownership of printed, electronic and other media should be amended, so that it would allow efficient control over media concentration in the hands of one owner or his family, use of antimonopoly restrictions in the information market in accordance with EC recommendations (in particular, recommendation No. R (94) 13), OSCE and European Union, as well as implementation of due procedures for penalizing the violators of the said legislation.

12.      Rapid and transparent consideration of all claims with regards to violence towards journalists and their assassination, and complaints concerning obstruction of the journalists’ professional operation should be guaranteed.

13.      Control over the use of funds by the State committee of TV and radio broadcasting should be strengthened to put an end to their abuse of power. In particular, the system of order TV and radio programs, books publication and other services covered from public funds, should be made more transparent. This body of power should be liquidated. As a part of amendments to the Constitution of Ukraine, the competences of this body should be transferred to the National Council on TV and radio broadcasting to allow for further liquidation of the said body.

14.      Changes should be introduced to the Law on TV and radio broadcasting, ensuring its compliance with EC, OSCE and European Union standards, as well as with the provisions of the European Convention on trans-boundary TV, recently ratified by the Parliament.

 

 

[1]  Prepared by Oxana Nesterenko, KhHRG on freedom of expression

[2]  “Stop censorship” UMA and NMPU: 2011 became the year of further deterioration in freedom of speech http://www.telekritika.ua//2011-12-22/68285

[3]  “Stop censorship” UMA and NMPU: 2011 became the year of further deterioration in freedom of speech //http://www.telekritika.ua//2011-12-22/68285

[4]  “Telenews present an alternative reality” //http://www.telekritika.ua/expert/2012-01-03/68491

[5]  http://www.aup.com.ua

[6]  http://www.mediaosvita.com.ua/monitoring

[7]  Barometer of violations of journalists’ rights for December 2011 //http://imi.org.ua/files/Bar12_11.pdf

[8]  Ibid.

[9]  Quoted from Jakubets N. Beaten but not consolidated http://www.telekritika.ua/expert/2012-01-06/68492

[10]  Ibid.

[11]  Militia has beaten journalists in front of Supreme Rada // http://www.telekritika.ua/news/2011-11-03/66944

[12]  Under Ministry of Interior Statistics for the years 2009–2010: http://mvs.gov.ua/mvs/control/main/uk/publish/article/374130   Under Ministry of Interior Statistics for the years 2010–2011: http://mvs.gov.ua/mvs/control/main/uk/publish/article/717134

[13]  On August 11, 2010 Kharkiv reporter from “Novy stil” Vasyl Klymentyev disappeared. Militia started investigation immediately, and on August 15 a criminal case with charges of “premeditated assassination” was filed. Nevertheless, numerous experts in the case confirmed that no objective or efficient investigation has been carried out. Till now, a lot of circumstances of the journalist’s disappearance remain unknown while no progress has been achieved in the case. (see Human rights report— 2009–2010)

[14]  Have Mykolayiv journalists been assaulted by “visiting” tax inspectors from Kyiv?//http://www.unian.net/ukr/news/news-438887.html

[15]  Ibid.

[16]  Ibid.

[17]  Ibid.

[18]  Journalists were forbidden to take pictures of Yanukovych’s motorcade//http://tsn.ua/ukrayina/zhurnalistam-zaboronili-fotografuvati-kortezh-yanukovicha.html

[19]  Militia detained three journalists for taking pictures of Yanukovych’s motorcade://ua.politics.comments.ua/2011/08/18/ 158081/militsiya-zatrimali-troh.html

[20]  Yanukovych’s guards covered cameras with their coats// http://www.telekritika.ua/news/2012-01-16/68771

[21]  STB journalist lost yet another case // http://imi.org.ua/news/жураліст-стб-програв-ще-одну-справу

[22]  Mohylyov is for journalists’ computers removal if journalists remain silent // http://news.dt.ua/SOCIETY/mogilov_za_viluchennya_kompyuteriv_u_zhurnalistiv,_yakscho_ti_movchat-81476.html

[23]  Reporters were denied entrance to the court, where “Road control” activist’s’ case was being heard –http://5.ua/newsline/184/0/73421

[24]  Executive committee of strict regime — access regime — http://www.kn.ks.ua/index.php?option=com_content&view=article&id=414:-asmodey&catid=69:2011-03-19-23-16-47&Itemid=126

[25]  “Reporters without boundaries”: Journalists’ rights are violated in Pechersk court// http://tyzhden.ua/News/26019

[26]  Zemlyanska M. journalist appeals non-admission to Kyiv Council — access regime . — http://www.svidomo.org/defend_article/5829

[27]  Odessa reporters win their way to city council through prosecutor’s office. — access regime — http://www.unian.net/ukr/news/news-447511.html

[28]  Kotovsk city council denies its prohibiting journalists from attending the meetings. . — access regime — http://www.telekritika.ua/news/2011-08-03/64810

[29]  See decision of Severodonetsk city council No. 791 “Resolution on the accreditation procedure for mass media representatives — access regime:

http://www.sed-rada.gov.ua/organi-vladi/rada-info/archive/dvadcyata-chergova-ses456ya-m456sko-radi-vi-sklikannya-v456d-26-08-2011-r/r456shennya-No791/?searchterm=Положення%20про%20порядок%20акредитації
%20засобів%20масової%20інформації

[30]  Journalists in Severodonetsk non-accredited journalists cannot attend the open meetings of city power. — access regime — http://www.telekritika.ua/news/2011-09-09/65612

[31]  Executive committee of strict regime —http://stop-x-files-ua.org/?p=6187

[32]  Freedom of speech barometer. September 2011. — access regime. — http://imi.org.ua/content/

[33]  “Krym segodnya” editorial board informs about local authorities’ pressure– access regime — http://www.telekritika.ua/news/2011-08-30/65327

[34]  Order No. 579-01р of 23.05.2011 “On approving the regulations for controlled entrance to the administrative building of Odessa city council”, http://www.odessa.ua/acts/mayor/34574

[35]  Journalists in Severodonetsk non-accredited journalists cannot attend the open meetings of city power. http://www.telekritika.ua/news/2011-09-09/65612

[36]  http://kmr.ligazakon.ua/SITE2/l_docki2.nsf/alldocWWW/95B040C158F18209C22573C0004CA3F9?OpenDocument

[37]  O. Dovzhenko. Confession of a reporter allegedly fired for the article on Torez orphanage. // http://helsinki.org.ua/index.php?id=1298452704

[38]  Journalists claim that Chernyvstsy mayor hinders their professional activity //http://www.pravda.com.ua/news/ 2011/03/13/6009600/

[39]  In Kherson oblast’ editors-in-chief of the communal newspapers cannot criticize authorities. //http://www.telekritika.ua/news/2011-12-13/68013

[40]  Pressure on media increases in the regions//http://tyzhden.ua/News/34920

[41]  Public movement “Donbas without censorship” is set up in Donetsk//http://ngo-ua.org/donbas-bez-cenzuri/104-stvoreno-ruh-donbas-bez-zensury

[42]  On brutal violation of freedom of expression in Kharkiv //http://www.khpg.org/index.php?id=1316257366

[43]  Ibid.

[44]  OSCE calls upon Ukraine to rectify the situation with Kharkiv transmission channels http://helsinki.org.ua/index.php?id=1316771097

[45]  Committee for freedom of speech will approach the president and Prosecutor General office with regard to stopping of Kharkiv transmission channels //http://www.telekritika.ua/news/2011-09-21/65920

[46]  Committee for freedom of speech will approach the president and Prosecutor General office with regard to stopping of Kharkiv transmission channels //http://www.telekritika.ua/news/2011-09-21/65920

[47]  Joint recommendations developed at the third meeting of Interagency working group for analyzing compliance with legislation on freedom of speech and protection of journalists’ rights. //http://www.president.gov.ua/content/rekomendacii_harkiv.html

[48]  Criminal case was filed on raider’s CAPTURE OF “Fora”. //http://atn.ua/newsread.php?id=72189

[49]  Opposition TV company resumed broadcasting without using TV networks subordinate to Odessa authorities http://tyzhden.ua/News/34878

[50]  TRCh “Antena-Plus” asked people’s deputies of Ukraine for help //http://antenna.com.ua

[51]  Independent association asks the Committee for freedom of speech to ban the pressure of local authorities on telecommunications’ operators, http://www.telekritika.ua/news/2011-09-21/65917

[52]  Ibid.

[53]  This version was proposed in the draft Constitution by V.V. Rechytsky (constitutional expert of KHHRG, associate professor of Yaroslav the Wise National Legal Academy of Ukraine).

Recommend this post
X




forgot the password

registration

X

X

send me a new password


on top