New attempt to criminalize libel


Photo: Kommersant Ukraine

The Party of the Regions is proposing to reinstate criminal liability for defamatory information. As Kommersant-Ukraine puts it, for a blow to the Party of the Regions’ reputation, they propose punishment not only in the form of fines, but also imprisonment for up to five years.

The author of the draft law, MP Vitaly Zhuravsky is convinced that this new law will mean that “people will think before speaking”.  The draft law is opposed not only by the opposition, but also within the Party of the Regions, some of whose members consider it to be about obsequiousness to Russia.

The draft bill has not yet appeared on the Verkhovna Rada website, however Kommersant Ukraine says that it has seen a copy. The bill envisages stricter liability for defamation, including criminal prosecution for slander and insult.

Zhuravsky proposes considering “slander” to be “the circulation of knowingly false information insulting the honour and dignity of a person or undermining his reputation” Punishment would range from a fine of 500 to 5000 times the minimum wage before tax (from 8500 UAH to 85 thousand, where 1 EUR is roughly 10.5 UAH), corrective labour or imprisonment from 3 to 8 months. If the circulation of information led to a serious worsening in health, the term of imprisonment would range from 3 to 5 years.

Insult (“denigrating the honour and dignity of another person, expressed in an indecent form”) is, according to Zhuravsky, a lesser offence, carrying a fine from 500 to 1000 times the minimum wage before tax (from 8, 500 to 17 thousand UAH) or corrective labour for up to a year. Zhuravsky claims that at present a journalist may write whatever he wants about a person, causing a heart attack, driving him into the grave, and bearing no responsibility.  He asserts that his bill is in keeping with European standards.  Asked whether fines are not sufficient, he answered that no, the threat of imprisonment would make sure that “people will think before saying anything”.

The new Criminal Code in 2001 removed criminal liability for defamation which in the 1960 Criminal Code had liability similar to that which Zhuravsky is proposing. At that time Serhiy Holovaty who is now a Party of the Regions MP, as a non-affiliated MP proposed removing criminal liability.  There have been a number of attempts since then to reinstate it (by MPs from different parties).  At present the right “to respect for their honour and dignity, as well as protection of their business reputation, is set out in Articles 297 and 299 of the Civil Code, with the level of compensation being determined by the judge in each individual case.

It is interesting that the explanatory note to the draft bill states that “by the way” such liability was adopted by the Russian State Duma on 13 July. While the fines in Russia are very large, the only other punishment is corrective labour, with imprisonment having been rejected.

Serhiy Holovaty, now Zhuravsky’s party colleague, calls the move “obsequiousness to Russia”.  He points out that the bill runs counter to the European Convention on Human Rights, European court practice, the principles of Ukraine’s membership of the Council of Europe and of European integration.

This view is shared by the Head of the Verkhovna Rada Committee on Freedom of Speech  Yury Stets (Our Ukraine – People’s Self-Defence)  who considers it another attempt to put clamps on freedom of speech in Ukraine. “Any idiot from the government wanting to punish a journalist will go to court, pay the judge money and for the journalist that will be the end of everything!  It will at the same time yet again deter other journalists from touching those   He adds that it will be yet another deterrent for other journalists against touching those failures from the government out of fear of ending up in prison. His committee, he says, as does the head of the Verkhovna Rada Committee on Legislative Backup for the Work of the Law Enforcement Bodies, Viktor Shvets, will not support the initiative.

In April 2008 we reported that the  Supreme Court had come out against criminalizing defamation.  In its comments and proposals regarding a draft law on amendments to the Criminal Code and Criminal Procedure Code on defamation, tabled in September 2006 by Vasyl Kiselyov from the Party of the Regions, the  Supreme Court stated that it would not be expedient to criminalize defamation.

The Draft Law No. 2086 envisages criminal liability for defamation, supplementing Articles 151-1 of the Criminal Code.  As the subject of this crime, the draft law defines only "officials who occupy a responsible or particularly responsible post".

The Supreme Court considers criminalization of this behaviour as legally unwarranted. It points out that the law did impose criminal liability for defamation earlier, but that this had been abolished in 2001 when the new Criminal Code was introduced.  

The Court stresses that Articles 28 and 32 of the Constitution, as well as Articles 297 and 299 of the Civil Code establish the right of each individual to respect for dignity and honour, as well as inviolability of their business reputation. Where these rights have been infringed, a person may turn to the courts to defend them. Civil legislation also envisages compensation for moral damages incurred through the dissemination of untruthful information or reports (Article 23 of the Civil Code), and believes that this sufficiently protects people’s rights in such situations.

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