Commentary on the official letter of the Kharkiv City Council press service revoking Maria Spalek’s accreditation

On 19 February 2007 an official letter from the press service of the Kharkiv City Council was placed on the latter’s website. It said that the Council was revoking the accreditation of journalist from “Komersant – Ukraina” Maria Spalek “

The letter states that “Komersant – Ukraina” has been persistently misinforming people in Ukraine about the reform of housing and communal services in Kharkiv.  Several times in material on this subject there has been unverified information and a slanted approach. All such material was written by the Kharkiv correspondent for the newspaper Maria Spalek and her Kyiv colleague Oleh Havrysh, who together disseminated untruthful information”.

The press service cites one article from 19 February as example “The service has been found to be excessively insistent” (“Komersant – Ukraina” № 26.).

We will not consider here the mechanism for “reforming the housing and communal services in Kharkiv”, being implemented by the local authorities which has repeatedly been question by the prosecutor’s office, the Kharkiv Regional Administration, the Anti-monopoly Committee and other organizations. However the Kharkiv Human Rights Protection Group considers it necessary to give a legal assessment of the actual fact of removing accreditation from a representative of the mass media

This unequivocal step by the city authorities has received considerable attention from journalists. It creates a dangerous precedent in restricting the rights of journalists, their freedom to carry out their professional activities and their freedom of speech.

The right to information, just as that to freedom of speech, are inalienable rights of any citizen of Ukraine. Article 2 of the Law “On the procedure for the coverage by the mass media of activities of state executive bodies and bodies of local self-government in Ukraine” sets out the general principles for such coverage.

“The mass media, in accordance with Ukrainian legislation, are entitled to cover all aspects of the activities of the State authorities and bodies of local self-government. The State authorities and bodies of local self-government must provide the media with full information about their activities via the relevant information services of the State authorities and bodies of local self-government, as well as businesses, institutions and organizations. They must also be received by public officials.”

All journalists are therefore entitled to access to information in bodies of local self-government, including in the Kharkiv City Council. However to ensure better organization of the work of journalists connected with institutions of power, the legislators established accreditation which, in the final analysis, is more needed by officials, than by the representatives of the media themselves. There are, however, certain duties for the body issuing the accreditation.

This body, in accordance with legislation, provides journalists in advance with information about important measures, plans, gives organizational help for them in carrying out their duties, provides transcripts, protocols and other material.

Article 3 § 3 of the Law “On the procedure for the coverage by the mass media of activities of state executive bodies and bodies of local self-government in Ukraine” envisages “procedure for access by journalists and technical staff to premises of the authority or body of local self-government, access to information and their documents and technical means are defined by Ukrainian  legislation taking into account the general regime (regulations) of the work of the specific body, and its real conditions and possibilities”. The procedure for accreditation and the revoking of such is regulated by a law which gives the only grounds being infringement of the procedure of access of journalists to premises, information and technical means of the authority or bodies of local self-government

Neither the Kharkiv City Council nor law enforcement agencies received any information regarding such an infringement by Ms Spalek.

Reference to the “Regulations on accreditation of media representatives by the Kharkiv City Council” is in our view inappropriate since this document gives an excessively large list of grounds for revoking accreditation, well beyond the boundaries of Ukrainian  legislation.  Paragraph 16, for examples, states that “journalists and technical media staff may have their accreditation removed by the Press Service if they break Ukrainian laws, including those regulating the activities of the media, the Regulations of the Kharkiv City Council, the procedure of procedure of access to the Kharkiv City Council or of the procedure established by the Council for access to information, documents and technical means, requirements of professional ethics”. . In our view the only appropriate elements in this list are the access to premises and access to information stipulated in the relevant legislation. All else is a conglomeration of unwarranted restrictions on journalists’ work. The last point regarding professional ethics seems particularly odd. One wonders how exactly the officials of the press service are to establish such infringements.

Indeed Article 27 of the Law  “On Printed Mass Communication Media (the Press) in Ukraine” allows for accreditation to be revoked “where journalists have exceeded their rights or not fulfilled their duties”, without stipulating which specifically. In Article 26 of the same Law there is only one duty which the letter from the City Council’s press service could conceivably believe to have not been fulfilled, that being to “provide for publication objective and reliable information.”

One can therefore conclude that the press service revoked Maria Spalek’s accreditation on the grounds that they believed she had disseminated unreliable information.

Spalek’s article which has led to her loss of accreditation says that on Friday the government committee on the fuel and energy industry spoke out against the new system of paying for electricity, gas and heating which the Kharkiv authorities have developed.

The article asserts that the Kharkiv prosecutor’s office has said that it plans to oppose the new system in court since it virtually deprives the National Commission on Regulating Electricity and the government of control over tariffs for energy.

Firstly the information about the meeting was prepared by the Kyiv correspondent of the newspaper, Oleh Havrysh, and not Maria Spalek, and he is responsible for that part of the article.

Secondly, the newspaper management has confirmed that they have a taped recording of the commentaries which they are ready to provide to the court as proof of the quality of the information disseminated. Thirdly, who can guarantee that we are not dealing with official casuistic verbiage which just has the appearance of formal correctness. For example, the journalist may have not correctly named the government committee, and the officials jumped at this, using it as an opportunity to say that there had been no meeting that Friday.

We should keep in mind that information is regarded as inaccurate or unreliable if it does not correspond to the truth, the latter also being used in legislation.  Was the information in the article “The service has been found to be excessively insistent” such as can be unequivocally defined as inaccurate? Only the court can provide an unambiguous answer to this question.  However the Kharkiv City Council has not lodged a complaint with the court either against the newspaper or Ms Spalek, having resolved in their own manner a question which lies within the exclusive jurisdiction of the court.

Furthermore, by revoking the journalist’s accreditation, the press service has infringed procedure established both by legislation and by their own “Regulations on accreditation”. This concerns providing notification in writing with reasons specified for revoking accreditation to both the journalist and the editorial office of the media outlet. The information posted on the official server of the Kharkiv City Council cannot be considered official notification, and Ms Spalek states that she has received nothing in writing.

At the given moment, therefore, the actual revoking of her accreditation has not, legally speaking, taken place. This means that if the press service informs the department responsible for guarding the Kharkiv City Council to not allow Maria Spalek to attend public events taking place there, this will be an unlawful and flagrant violation of her right of access to information.

Pursuant to Article 2 of the Law “On the procedure for the coverage by the mass media of activities of state executive bodies and bodies of local self-government in Ukraine”, the said bodies must not impose “any pressure and must not interfere with their work. The mass media may carry out their own research and analysis of the activities of state executive bodies and bodies of local self-government, their public officials, giving assessment and comment … The right to cover and comment on the actions of state executive bodies and bodies of local self-government , events of state life in Ukraine are guaranteed.” 

We would warn the “hot heads” in the Kharkiv City Council that pursuant to Article 45-1 of the Law “On information”, “deliberate obstruction of the lawful professional activities of journalists and / or persecution of journalists for carrying out their professional duties and for criticism instigated by a public official or group of individuals by prior agreement, shall be liable to criminal charges in accordance with the Criminal Code of Ukraine”.

We consider that at the present time a constructive way out of this regrettable situation would be to cancel the illegitimate decision (if in fact it exists in any other form than as an Internet letter) on revoking Maria Spalek’s accreditation. And if the public officials of the Kharkiv Mayor’s office really believe that untruthful information was circulated, then they can use the relevant legal means for demanding the “Komersant – Ukraina” publishes their response refuting the information, or in the extreme case, can appeal to the courts.

Otherwise, such deliberate and uncivilized punishment as the revoking of accreditation may be deemed to be a “public beating” of a journalist who is out of favour for her criticism.