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Human Rights in Ukraine. Website of the Kharkiv Human Rights Protection Group
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8. FREEDOM OF EXPRESSION

   

 [1]

   1. Overview   

   The main challenges to freedom of opinion, speech and mass media (the media) in 2012 included the legislative initiatives of people’s deputies, electoral campaign, establishment of final television space monopoly for at the local level and pressure on independent media by the tax authorities and prosecutors. According to experts, the lack of media market in Ukraine and, therefore, the dependence of journalists on media owners also has a dramatic negative impact on media freedom in Ukraine. The negative trends of 2011 persist as well: obstructing journalists performing their professional duties, spread of self-censorship, conflicts around the redistribution of broadcasting market, and more.   

   2. Freedom of speech and legislative initiatives

   In 2012, the Verkhovna Rada of Ukraine didn’t preoccupy itself with establishing greater legal safeguards for freedom of expression and freedom of the media; in particular, it didn’t get moving the process of adoption of a law on public broadcasting, protection of professional journalists, etc. The attempt to stop the activities of the National Expert Commission for the Protection of Public Morals, activities of which in itself was a violation of Art. 34 of the Constitution of Ukraine, by the way of adoption of a law ended in failure. Moreover, the threat to freedom of expression was created by legislative initiatives of Verkhovna Rada of Ukraine. It includes, in particular, the attempts of the Verkhovna Rada of Ukraine to adopt: 1) the bill on amendments to the Criminal Code and Criminal Procedure Code of Ukraine to strengthen responsibility for attacks on the honor, dignity and business reputation of the person from 19.07.2012 no. 11013; 2) Bill amending some legislative acts (on protection of children's rights to secure information space) from 20.06.2011 no. 8711; and 3) Bill on the ban of children-targeted promotion of homosexuality from 30.03.2012 no. 10290.

   Adoption of the bill on establishing criminal liability for defamation could, according to experts, become a serious challenge to freedom of expression in Ukraine, because it would entail prosecution of independent journalists, who exposed the abuses of power, and, consequently, increased self-censorship. Today, thanks to solidarity of civil society and the media environment it became possible to make the Verkhovna Rada of Ukraine to refuse to adopt the law. The Bills no. 8711 and no. 10290 were no less threatening to freedom of expression. However, if the bill no. 10290 was withdrawn, the bill no. 8711 was approved despite the collective appeals from civil society and international experts with the requirement to abandon its approval.

   The only positive development in 2012 in the legislative activity of the Verkhovna Rada of Ukraine in the regulation of the media was working on a new version of the Law of Ukraine "On Television and Broadcasting”[2] which should create more guarantees for audiovisual media and by introducing an auction make the process to obtain a license for broadcasting channels more transparent and less corrupt, respectively.   

   3. The rights of journalists and the media

    in 2012, the Mass Media Institute recorded 65 cases of using physical force against journalists during discharge of their professional duties[3], which means 40 cases more (approximately two and a half times more) than the "Reporters without Borders" registered in Ukraine in 2011; according to MMI, 33 attacks[4] were committed for political motives[5]. According to a survey by the Mass Media Institute, the biggest splash of violations occurred during the election campaign. One of the main motivations of attacks on journalists is also their coverage of topics that expose corruption and fraud. For example, on September 26, 2012 journalist Dmitry Volkov, television program "Hroshi", was assaulted, when he returned home from work. Since, according to the journalist, one of the attackers shouted "you dig it and we make short work on you”[6], there was every reason to believe that the attack was committed with regard to professional activity of the journalist, particularly in the investigation of land issues in Kyiv. Another example: the beating of the journalists of the "Road Control" during shooting of the illegal activity of private car-park[7].

  The check-ups by tax inspectorate and prosecutor's office became another tool that was actively used to suppress the media, which, despite all adverse conditions, retain their independence from government. The TVi case became the most vivid example. The pressure that TVi experienced during 2011 continued last year, only the instrument changed: the main leverage intended to stop the activities of TVi consisted in a series of check-ups by the tax authorities in violation of tax laws. The "Ukrainian Week" also informed about pressure after the World Newspaper Congress and World Editors Forum in Kyiv. However, unlike the history with TVi, the pressure was imposed by blocking its access to its readers[8].

  The journalistic movement "Stop Censorship" told about the danger of introducing internal censorship in UNIAN, one of the most influential news agencies of Ukraine. In particular, it is a fact that the leadership of the UNIAN agency established a ban on putting online on UNIAN’s site the names of Viktor Yanukovych, Azarov and Volodymyr Lytvyn in a negative context and site editors were obliged to coordinate all news with these names with the administration. The item of news titled "Bankova picket: shoes with a Christmas tree brought to Yanukovych," which appeared on the agency's website on October 26, was immediately removed. Then two site editors––Liubov Zhalovaha and Valentyna Romanenko––were informed that they would be fined UAH200 each for mentioning the names of the President in a negative context[9]. The journalists of television channels, especially news channels, also spoke on censorship.

   In general, the study of the situation with ensuring media’s freedom and journalists' rights in Ukraine in 2012 shows the following trends:

   1) the number of violations of journalists' rights indicates the absence for the last ten years of progress and even the existence of serious setbacks in the area of securing the rights of journalists in Ukraine, and demonstrates the dangerous tendency to collapse of democracy in Ukraine. This means that there were no real legislative reforms aimed at strengthening the guarantees of freedom of speech and, in particular, to guarantee the rights of journalists, lack of an independent judicial authority as a reliable guarantee of freedom of expression and protection of journalists;

   2) the interconnectedness of phenomena such as violations of journalists' rights and political situation in the country. In other words, the curbing of violations of journalists' rights in Ukraine is directly proportional to the level of respect for media freedom on the part of political party in office, that is, in Ukraine the views of the dominant political forces have a greater impact on all spheres of public life than the law, which is the traditional instrument of regulation of social relations in the established democracies;

   3) Despite all the pessimistic predictions concerning the fact that the Ukrainian media have ceased to be "watchdogs of democracy", the available results suggest that the Ukrainian journalists continue to play a significant role in social life, expose corruption and abuse of power, cover uncomfortable issues for the administrators, moreover, the audience listens to their opinions, because only a strong opponent is worth to be suppressed. The proof of this is in the fact that most violations of journalists' rights happen precisely during electioneering;

   4) Unfortunately, Art. 15 of the Constitution of Ukraine is still nothing but fine words, which for the last decade have failed to become fully a part of the culture of communication among adherents of different viewpoints in Ukrainian society. This, in particular, shows the inability of the authorities to take criticism.   

   4. Freedom of speech and media during the electioneering

   In 2012, the elections put to the test the media before the start of electioneering; the independent TV and radio broadcasting companies, urban media journalists, editors, which showed professionalism, fully felt the pressure. Thus, during the election campaign, the Mass Media Institute recorded an increase in violations of journalists' rights. During the period from July 30 to October 31 the experts of the Mass Media Institute found 185 violations, of which 115 were directly connected with the parliamentary elections and / or were practiced by the candidates[10]. Among the most common violation during this period the experts named obstruction of journalists to perform their professional duties––98 cases. It was followed by beating of journalists––37 cases, and, the third from the top––32 lawsuits against mass media[11].

   One of the most common ways of pressure on journalists and the media during this campaign was actions filed against the media demanding to ban the latter for the period of election campaign. In particular, due to claims of parliamentary candidates the court forbade the publication of newspapers "Osobysty Pohliad"[12], "Molodohvardeyets"[13], "Nash vybir" until the end of the elections. The second top example includes five claims of one nominee against several media; however, he had lost all lawsuits.

   Another example of the use of the judicial authorities as an instrument of pressure on journalists was the civil complaint of nominee (now people’s deputy) Yuliy Yoffe against the editor of the "Tretiy Sector" Oleksiy Svietikov concerning the protection of honor and dignity, and recover of moral damages. Yoffe said that the defendant, who had posted on the website of NGO "Committee of Voters of Ukraine" his article “Majority system once again”, wrote that Yuliy Yoffe was a member of political group of Firtash-Liovochkin thereby discrediting him and inflicting moral damage worth one million hryvnias. According to the Council of Kharkiv human rights protection group, the "apparent discrepancy of claims for moral damage suggested that the lawsuit was actually filed to protect the honor and dignity, but to "retouch" the critical position of the defendant and make it look more loyal. This powerful tool of pressure on people, who express independent views, was widespread in Ukraine in the late nineties. The lawsuit of people’s deputy from the Party of Regions Yuliy Yoffe against Oleksiy Svietikov may indicate that in Ukraine pressure on society is increasing, the purpose of which is to limit freedom of expression.”[14]

    5. Restrictions on freedom of expression over public morality

   The first event in 2012, which showed a lack of understanding in the Ukrainian society for values of the freedom of expression, particularly in the fine art, was the closure of the exhibition "Ukrainian body" at the Center for Visual Culture at the Kyiv-Mohyla Academy, which was perceived by artistic coterie, as a manifestation of censorship, while the administration of the academy treated these art works as "promotion of pornography"[15]. However, the signs of pressure on the freedom of expression over public morality was less obvious, as well as the activity of the National Expert Commission of Ukraine on Protection of Public Morals in 2012 than a year earlier. Major scandal involving this commission was its statement about the need to check if cartoons "Masha and the Bear," "Cinderella," "Beauty and the Beast," "The Lion King," "The Jungle Book," "Sambo," "101 Dalmatians," " Pinnokio", "Shrek ","Luntyk" "Teletubbies”, “Pokemon”, “The Simpsons” and other threaten children, because the secure information environment for children is extremely important for the National Commission on Morals[16]. However, this was nothing but hullabaloo on the official website, although the existence of the National Expert Commission of Ukraine on Protection of Public Morality remains a serious threat to freedom of expression in Ukraine.

   Next the National Expert Commission of Ukraine on Protection of Public Morals in 2012 set about the computer games Manhunt II, Mortal Combat, God of War III, which, according to the latter, violated the Law of Ukraine "On Protection of Public Morals” and should be banned.

      Recommendations:

   1. Delete the word-combination "information security" from the first part of Art. 17 of the Constitution of Ukraine.

   2. To amend the electoral legislation of Ukraine regarding regulation of the media during the election process.

   3. Decriminalize the acts under Art. 301 and 338 of the Criminal Code of Ukraine. These articles of the Criminal Code of Ukraine provide for criminal liability for "desecration of the state symbols of Ukraine" (Art. 301) and "the spread of items, images, works of pornographic nature" (Art. 338).

   4. Repeal the Law of Ukraine "On protection of public morals." Liquidate the National Expert Commission of Ukraine on Protection of Public Morals. Amend the Law of Ukraine "On Television and Radio", and in this connection to replace open tenders with open auctions for broadcasting licenses associated with the use of frequency resources, as well as broadcast on free channels of multichannel networks.

   5. Amend the Law of Ukraine "On Television and Radio" and in this connection to replace open tenders with open auctions for broadcasting licenses associated with the use of frequency resources, as well as broadcast on free channels of multichannel networks

   6. Adopt the Law "On privatization of the media in Ukraine", which shall provide for a program to reform state and municipal media by changing their management and financing in accordance with the recommendations of the Council of Europe and OSCE.

   7. Repeal the laws "On the coverage of functioning of the state and local governments in Ukraine by mass media" and "On state support of mass media and social protection of journalists", and provide for cancellation of certain benefits for public media journalists and equalize them in rights with the journalists of private media.

   8. Draft a bill on the rights of journalists, using the achievements of the State Committee for Television and Radio, and draft the bill no. 9175 dated February 27, 2006 "On the protection of the professional activities of journalists." This problem is of practical importance, because, for example, the rights of journalists working for TV and radio are not defined yet.

   9. Cancel procedure permitting registration of print media that does not comply with the requirements of Article 10 of the European Convention on Human Rights and Fundamental Freedoms.

   10. Amend the legislation making it possible to identify the real owner of the media, especially television and radio stations, as well as cross-ownership of print, electronic and other media to implement effective control over the concentration of media in the hands of one owner or his family, antitrust restrictions on the media market in accordance with the recommendations of the Council of Europe (for example, Recommendation no. R (94) 13), OSCE, and European Union, as well as implementation of necessary procedures intended to punish violators of the law on concentration of media.

   11. Ensure quick and transparent investigation into all allegations of violence and deaths of journalists, as well as cases of interference in journalism.

   12. Step up control over the use of the State Committee for Television and Radio Broadcasting through numerous cases of abuse of power by this authority. In particular, make transparent the system of ordering creation of broadcasting programs, publishing and other services with public funds. During consideration of the draft amendments to the Constitution of Ukraine to transfer the powers of this body to the National Council for Television and Radio, and then liquidate it.

   13. Amend the Law on Television and Radio to bring it into conformity with the standards of the Council of Europe, OSCE and the European Union as well as the Convention on Transboundary Television recently ratified by the European Parliament.

 

[1] Prepared by Oksana Nesterenko, Expert of the Kharkiv Human Rights Protection Group on freedom of expression of views.

[2] The first text of the new Law on Television http://www.telekritika.ua/

[3] Chulivska I. The journalists were beaten 65 times  in 2012 http://imi.org.ua/

[4] Quoted after Yakubets N. Beaten, but consolidated
http://www.telekritika.ua/expert/2012-01-06/68492

[5] Chulivska I. Journalists were beaten 65 times  in 2012
http://imi.org.ua/content/65-raziv-pobili-zhurnalistiv-u-2012-rotsi

[6] Barkar D. Journalists beaten again, and independent media thrown out of the media market http://radiosvoboda.org/content/article/24722200.html

[7] The goon squad beats journalist during filming? http://www.pravda.com.ua/news/2012/11/27/6978261/

[8] "Ukrainian Week" confirms the pressure after the World Newspaper Congress http://www.telekritika.ua/news/2012-09-27/75432

[9] "Stop Censorship" informs about systematic censorship in Ukraine, for example UNIAN http://www.telekritika.ua/news_cenzura/2012-10-29/76336

[10] Election 2012: three months––185 cases of violations of journalists' rights http://imi.org.ua/

[11] Election 2012: three months––185 cases of violations of journalists' rights http://imi.org.ua/

[12] Due to the action filed by the deputy the court suspended the newspaper "Osobysty Pohliad" until after the elections http://vybory.mediasapiens.ua/

[13] PR candidate managed to ban the publication of "Molodohvardeyets" http://imi.org.ua

[14] As regards the claim of people's deputy of Ukraine Yuliy Yoffe to human rights activist and journalist Olexiy Svietikov http://www.khpg.org/index.php?id=1355779266

[15] Kapliuk K. "Ukrainian Body" locked down http://www.dw.de/українське-тіло-закрили-на-ключ/a-15745037

[16] Decision no. 2 dated September 6, 2012 / / http://www.moral.gov.ua/solutions/372

 

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