“Prava Ludiny” (human rights) monthly bulletin, 2003, #05
80,6% of Odessa dwellers do not support the propositions of Leonid Kuchma on the political reform Politics and human rights
Absurd in the country of absurd, or some thoughts about the new Civil Code The draft of the Law “On the freedom of consciousness and religious organizations”: new version Comment of the Kharkov group for human rights protection (KhG) on the draft of the Law of Ukraine "On the introduction of changes to the Constitution of Ukraine" presented for the discussion by the initiative of the President of Ukraine Freedom of expression
The National Council got the authority to cancel the licenses for broadcasting without court decision The criminal case against journalists after "the facts of illegal influence on the President" was closed. The open letter to President Kuchma from the all-Ukrainian public organization "Ukrainian Internet community". The USS tries to control the Internet. The appeal of representatives of mass media and human rights protecting organizations of the Lugansk oblast. “Freedom House”: the freedom of speech is absent in Ukraine Kuchma again got to the list of enemies of the press Women’s rights
Who is the insulted one? The Constitutional Court interpreted part 1 Article 7 of the Civil Code of the UkrSSR Deported peoples
Vasyl Stus Street in Kyiv
80,6% of Odessa dwellers do not support the propositions of Leonid Kuchma on the political reform
10,000 bulletins were printed, 8061 persons took part in the voting in 20 improvised voting districts. 981 voters supported the Presidents proposition, 6930 (80.6%) Odessa dwellers expressed their negative attitude.
The press conference was hold after the street action. Volodymir Kurinniy, the leader of the oblast organization of the party “Reformy i poriadok”, told at the press conference that the results of the referendum called in question the “peoples support of initiatives” declared by the authorities. As it is known, earlier the state officials affirmed that the political reforms were endorsed by 90% of the Odessa population.
Andrey Ishchenko, the leader of the oblast organization of the Ukrainian National Assembly, informed that many Odessa inhabitants expressed their attitude not only about the political reforms, but also about the present government. “The most popular peoples comment in the process of the voting was: “Away with Kuchma!””, told A. Ishchenko.
Fedor Nariychuk, the head of the Odessa oblast organization of the Ukrainian Republican Party “Sobor” stated that he was not surprised by the results of the street referendum. “The majority of the inhabitants of Odessa and Ukraine as a whole”, he said, “know that the initiatives stated in the propositions of Leonid Kuchma are the manipulations of the power that have the goal to preserve their dominating position. The modern situation in Ukraine does not satisfy people, and they do not believe in the effectiveness of these initiatives”.
MP Eduard Gurvits commented the results of the voting. He said: “The level of the confidence in the President is extremely low in Ukraine, and the reforms proposed by the President reflect the desire of Leonid Kuchma and his clique to preserve their positions after the election-2004. Leonid Kuchma is the head of the country already for 10 years, and during all these years he was protesting against the reforms of the power. And today he presents such propositions! Perhaps, he has a presentiment about the end of his work at the Presidents post and makes everything to retain his influence in the country.
During these 10 years people understood that it is unwise to believe Leonid Kuchma and his team, and this was visually demonstrated by the results of the Odessa voting”.
Igor Stoliarov, Odessa
Politics and human rights
Absurd in the country of absurd, or some thoughts about the new Civil Code
However, the consequences of this not-reading will affect the Ukrainian citizens, including the deputies. In particular, part 3 of Article 277, which reads: “Negative information about a person is regarded as inauthentic”, will cause the material losses of journalists and other persons, and Articles 282 and 283 can cause the loss of health or even life. Let us read together part 2 of Article 284: “A physical person that attained the fourteenth year and turned for medical aid have the right for choosing the doctor and methods of treatment according to doctors recommendations” or item 3: “Medical aid to a physical person that attained 14 years old is rendered after his/her consent”.
Is it possible that the deputies, who read the code, and the lawyers, who compiled it, were not confused by these ideas? We can assume that they have no children of this age, but it seems that they must remember themselves, when they were 14. How a teenager of 14 years old can choose the doctor, the methods of treatment, how can he estimate the state of his health? Children and minors have absolutely different level of intellect; every juvenile doctor or psychologist can confirm this. As a rule, minors and children are afraid of medical procedures, especially injections, not to mention surgical operations. Even parents must persuade their children for a long time to undergo some medical procedures. And now the children get the legal right to reject the medical aid. It is easy to imagine the consequences… Only one fact is calming: even adults do not read laws in our country. Yet, it may happen that the instructions for doctors will be supplemented with some corresponding items, for instance: before making a vaccination or taking blood for analysis a doctor must obtain the consent of the child, if the childs age is more than 14 years. And do not think that I want to drive the situation to absurd. We already have the law “On psychiatry”, which states that a psychiatrist, who comes to a patient after the summon of relatives or neighbors, must, first of all, announce his name and post and to ask the patient, who is potentially psychically ill, whether he agrees to be examined by psychiatrist. And if the patient refuses the examination, the doctor must go away. Maybe, this is the reason, why now there are so many criminals with psychic disorders? The number of such people in streets and transport also became more… All this is a result of good intentions of those, who took part in the development of this law, and who did not want to listen to the opinions of psychiatrists being sure that the latter were the guilty of the repressions of Brezhnevs times, when dissidents were thrown to madhouses. Part 4 of the same article reads: “An adult capable physical person, who realizes the sense of his/her actions and can control the actions, have the right to refuse from medical treatment”. This means that any person older than 16 years has the right for suicide. Yet, the right to choose the methods of treatment looks not better. Doctors know that frequently it is impossible to learn the real situation without the thorough medical examination. And if a patient rejects the medical treatment, then who would examine him? Maybe, physicians did not see this article yet.
The situation with Article 285 “The right for the information about ones health” is also rather sad. The deputies and lawyers should turn the attention to the norm of Article 23 of the Law of Ukraine “On information” and the decision of the Constitutional Court of 16 October 1997 on the case of K. Ustimenko. Article 285 of the new version of the CC openly contradicts part 3 of the decision of the Constitutional Court: “If the information about a decease of a physical person can worsen the state of his/her health or the state of health of the physical persons listed in part 2 of this article, or impede the process of medical treatment, then medical staff have the right to give the incomplete information about the health of the physical person and to restrict the access to some medical documents” (part 2 mentions such persons as parents (adoptive parents), guardians, etc.). How doctors can know whether the information would damage the health of these persons? Maybe, the legislators meant parents (adoptive parents) and guardians, who are ill or handicapped? But where is it written? And how does it agree with Article 284 stipulating the right for the renunciation of medical treatment? Who would be responsible, if a patient would reject the medical aid on the basis of incomplete information?
By the way, the Constitutional Court did not restrict the right of patients for obtaining the complete and authentic medical information (this also concerns the persons mentioned in part 2 of Article 285).
The doctors, who specialize in infectious deceases, must tender their special thanks to deputies for part 1 of Article 287, according to which it is prohibited to restrict the access of relatives, lawyers, notaries and priests to the patients, who stay in hospitals. And all of us must be thankful to the deputies for the provisions of Article 293, the second part of which gives to us the right to demand the termination of the activities of physical and juridical persons, if these activities result in air pollution. This right is very “realistic”, especially for such great cities as Kharkov, where air is full of exhaust, and local deputies initiate and realize felling of trees, because these trees prevent the installation of advertisement boards or booths that increase the profit of the local budget. So, respected city inhabitants, you must immediately demand to stop all cars and plants. Yet, this article does not give the right to demand from the corresponding services to monitor the state of the environment and to take measures for its improvement.
The absurd provisions of the new Civil Code have been already discussed by many mass media, for instance in the newspaper “Dzerkalo nedeli”.
I want to turn the attention of readers to the following problem. The public is very interested in the right for information, and the right for medical aid and the problems connected with it do not disturb the society very much. Miserable salaries make the medical doctors to give up their job or, at best, to find job in the commercial medical establishments. The most socially important spheres – health protection and education – are, as usually, ignored by public. First of all – by patients, because everyone becomes a patient sooner or later, even deputies and state authorities. Unfortunately, they do not understand this. Otherwise we would not wait for such a long time for the insurance medicine in the form practiced in the whole world.
However, today we have what we have – the new Civil Code, the size of which is very impressive, but which requires the thorough analysis and modification of the articles that are not only absurd, but may have the negative consequences.
Respected deputies, please, read this important documents, it is not very difficult. Maybe, you will want to change something…
P. S.The last issue of the newspaper “Dzerkalo nedeli” describes the events connected with the adoption of the new Civil Code from another point of view. The deputies, who read the Code, insist: the notorious Article 277, which a priori considers any negative information to be inauthentic, was stated in the following way: “Negative information spread about a person is regarded as inauthentic, if the facts were not proved by the spreader”.
The deputies affirmed that they voted for this version of the article, but the second part of the statement vanished in the secretariat before handing it to the President for signature. So, it appears that our life, democracy and everything that happens in the country depends on the will of the clerks of the Supreme Rada!
The draft of the Law “On the freedom of consciousness and religious organizations”: new version
The draft was not changed much: only several definitions and specifications were added. The term “church” is now determined more precisely. The number of citizens, who may found a religious organization, was decreased from 25 to 10, and this is praiseworthy. Unfortunately, other drawbacks of the draft were ignored.
Besides, new definition of the freedom of consciousness was included to the draft. It reads: “the freedom of consciousness is the right that guarantees the inviolability of consciousness in the questions of religion”. Undoubtedly, this definition is quite vague.
It should be also noted that the draft unambiguously states that the right for the alternative military service is rendered to persons, who cannot serve in the army because of their religious beliefs. This provision violates the equality of people of all religious beliefs and the rights of atheists. This problem was elucidated widely by Russian human rights protectors. The campaign for protecting the right for the alternative service lasts in Russia for many years (obviously it is connected with the war in Chechnya). Yet, unfortunately, there are no similar mass actions in Ukraine.
So, why the draft was presented for the consideration almost without changes? It seems that the organs of state power decided to show some semblance of active work after the acute criticism from various sides. They corrected something, formulated some definitions in other words, but the essence did not change… Our authorities do not like to abandon their ideas. Now let us wait and see whether our citizens are able to struggle for their rights.
Comment of the Kharkov group for human rights protection (KhG) on the draft of the Law of Ukraine "On the introduction of changes to the Constitution of Ukraine" presented for the discussion by the initiative of the President of Ukraine
In particular, the commentary to Article 71 of the Constitution, from which the Law draft begins, criticizes the proposed procedure of election of the President of Ukraine, organs of state power and local self-rule “during one year”.
According to the version of this article, stated in the Presidential initiative, the election of MPs must be conducted in March, election of the deputies of local councils and other organs of local self-rule – in September and Presidential election – in December of the same year.
Such procedure of separate election allegedly would not allow the newly elected President to influence negatively the election of the representatives of self-rule organs. In other words, the structural vertical of power would not be formed as a pyramid of concrete staff priorities of the head of the state, and this idea has certain political sense.
On the other hand, if it is necessary to conduct the election of two power branches (Presidential-executive and legislative) during one year, then the possibility appears of the reduced term of the authorities of these organs. So, if the President or Parliament were re-elected before the appointed time, they would work according to the reduced term of action of the obtained mandate. For example, if a President would be elected to his post after the impeachment of his predecessor, then he would fill this post only until the next Presidential election. The same may be said regarding to the pre-term election (re-election) of the Supreme Rada of Ukraine.
The administrative effect of this procedure is not very great, but it creates obvious political inconveniences. It should be more advisable to assign a deputy of the President (Vice-President) for such cases. As to the Parliament, it always must be elected for the full term, taking into account its collective nature and the inertness peculiar to it. In this case we would get the procedural economy and the sureness that the people would have the equal political weight at any parliamentary election.
The next thesis (Article 74) of the Presidential initiative reads that Laws and other decisions adopted at the all-Ukrainian referendum have “the superior political force” relatively to the parliamentary laws, so, they do not need further approval by the organs of state power or state officials.
This means that the laws adopted at the referendum have the priority over the laws adopted by the Supreme Rada of Ukraine. Yet, Article 74 of the changes to the Constitution mentions the juridical, but not political superiority of such laws. At that the “referendum formula” – the detailed and approved text of the law draft, which would be presented for the nation-wide voting, would not be considered beforehand by the Supreme Rada of Ukraine.
It is interesting that the operating Law on referendum contains the article about the necessity of presenting the formula of referendum for the voting in the Parliament. This norm allows to achieve the aim of referendum by the reductive procedure. In other words, if the Parliament supports the referendum formula, then the need of it decreases. Yet, in 2000 this article of the Law on referendum was ignored by its formal organizers.
It should be stressed that Article 74 of the new version can also change the existing procedure of introducing changes into the Constitution of Ukraine. It is formulated in such way that the old procedure of introducing changes is implicitly supplemented with new procedure; so, the existing procedure of introducing changes into the Constitution is preserved only for three (I, III, XIII) sections of the Basic Law. As to the rest of the text of the Constitution, it may be changed both in accordance to Article 155 of the operating Constitution and on the basis of all-Ukrainian referendum, which has “the supreme juridical force” in comparison with any new parliamentary laws.
Since Article 74 of the Presidents law draft does not tell the difference between simple laws and the laws introducing changes to the Constitution, one may reckon that, in fact, the triple procedure of introducing changes is proposed: on the basis of Articles 155 and 156 of the operating Constitution and on the basis of part 2 Article 74 of the Law draft “On the introduction of changes to the Constitution of Ukraine”.
It is widely known that in any poor country without democratic experience a referendum is not only a tool of direct expression of the political will of population, but also a way of manipulating the mass civil consciousness. Besides, it is also known that very poor and very rich individuals are politically indifferent. Having different reasons, they do not expect much from the political power. This might be a reason of the triumphal referendums in the countries headed by B. Mussolini, A. Hitler and F. Castro.
It seems that there is no need to comment the economic and moral state of modern Ukraine. It is obvious that under the existing conditions it is not difficult to “prompt” any political decision to the Ukrainian citizens.
Section IV of the Law draft begins with the declaration of the principle of the two-chamber structure of the Ukrainian Supreme Rada, which will now consist of the Chamber of regions (the upper chamber) and State gatherings (the lower chamber).
It should be noted that the very idea of two-chamber structure of the Supreme Rada does not arouse any ideological or political objections. All pretensions and criticism appear after the analysis of the propositions, when the sense of the radical changes becomes clear. The situation becomes transparent, when one understands that the State gatherings are composed, according to the idea, on the basis of the proportional principle, and the Chamber of regions – on the basis of the majority election model.
Although the Presidential draft does not describe the concrete procedure of the election to the upper chamber (it is only said that the members of the chamber are elected), one must not think that the procedure was not described accidentally. The text of the draft contains the provision that the members of State gatherings, unlike the Chamber of regions, are elected according to the proportional principle. So, it should be logically to suppose that the Chamber of regions would be composed on the majority, not the proportional basis, since the election will be conducted in oblasts (three mandates per region), where the use of any election system except the majority one, is improbable. This confirms that the widely declared intentions of the Ukrainian opposition to introduce the proportional principle of forming the Parliament are wittingly ignored by the Presidential initiative.
Everybody knows that the peoples deputies elected on the proportional basis have the same rights as the deputies elected in majority districts. In the new version of the Parliament the role of the deputies elected on the proportional basis will noticeably diminish. Although their number will increase for 50 persons, but the political force of the State gatherings elected according to the proportional principle will significantly decrease in comparison with the half of the operating Supreme Rada elected after the same principle.
Thus, the introduction of the two-chamber structure of the Parliament will not endorse the principle of proportionality at the national election; moreover, it will shift this principle to the lower level of the political efficiency. Since the Chamber of regions will dominate over the State gatherings, it is obvious that the President did not refused from his majority principles, but even intensified it.
Now we know well what is the sense of the majority system of election in Ukraine. Under the existing political conditions it is an efficient tool for the disavowal of the democratic achievements of the proportional system. The progress achieved by the Ukrainian opposition at the last parliamentary election owing to the proportional system was quickly “balanced” with the results of the majority voting.
The future members of the Chamber of regions will have much more powers than the present deputies, and the majority principle of election will remain operable.
At the same time it should be noted that item 6 Article 81 of the draft that permits to terminate before the proper term the authorities of the deputies, who left the party fraction or were expelled from it, supports the general principles of proportionality. Yet, this internal disciplinary procedure does not recompense the losses of the members of the State gatherings inflicted by the decrease of their authorities comparatively to the present Supreme Rada.
Article 83 of the draft also deserves the special attention. This article stipulates the creation of the so-called “permanently acting” parliamentary majority. According to this article, the majority gets the constitutional status for the first time. Besides, the term “permanently acting majority” is obviously absurd, since it is difficult to imagine any permanent phenomena in the unsteady world of parliamentary votings.
It is clear even without any special explanations that there exist (and will exist) many questions in the political practices of the Parliament, where the stability is principally impossible. Moreover, the so-called “prevocational” law drafts are possible, with which the subjects of legislative initiative will consciously undermine the stability achieved by their political opponents.
The limited type of the permanent constitutional majority may exist at the voting “for/against” the candidate to the post of the Prime-Minister. In this case the majority automatically becomes the structural part of the State gatherings responsible for the actions of the government. Yet, even the voting “against” in the composition of the parliamentary minority does not relieve the opposition deputies of the responsibility for the elected persons.
The presidential draft pays much attention to the powers that must be realized by new Supreme Rada at the joint sessions of its chambers. The list of these authorities is rather lengthy, but new Constitution does not envisage any concrete procedure of voting at joint parliamentary sessions. Such procedural incompleteness of the constitutional space is somewhat surprising.
It is not understandable whether the decisions at these joint sessions will be adopted by the majority of the total composition of the chambers, or when the majority of one chamber would manage to come to the agreement with the majority of another chamber. If the Presidential initiative means the separate voting in the chambers at the joint sessions, then these sessions are absolutely senseless. Yet, if the voting would be realized by the temporarily “united” composition of the Supreme Rada, then the very idea of the division into chambers seems to be inexpedient.
Somehow or other, the idea of the joint sessions of the chambers with the special competence is not sufficiently detailed and grounded.
Article 85 of the draft of the Law “On the introduction of changes to the Constitution of Ukraine” stipulates the separated competence of the Chamber of regions and the State gatherings. In particular, the authority of the Chamber of regions includes “the approval of the laws adopted by the State gatherings”. This formula seems to be rather clumsy, since it is obvious that “the approval” may mean not only the support of the law, but also its rejection. It would be more advisable to use the formula “voting on the laws adopted by the State gatherings”.
It is also noteworthy that the competence of the Chamber of regions also includes almost all staff authorities of the operating Supreme Rada of Ukraine, except the new provision about “the appointment of the Prime-Minister of Ukraine by the recommendation of the President”.
The Chamber of regions is empowered to form (and, thereby, to control) the composition of the judicial branch of power in Ukraine. Henceforth the composition of the Constitutional Court will depend on the Chamber of regions for 50%, and the judges in the courts of common jurisdiction – for 100%, since they will be appointed by the Ukrainian “senators”.
Since the judges of the common courts, according to the project, will be elected for ten years, it will be possible to control their professional behavior. Thus, the proposed decrease of the present unlimited term of judges authorities looks as a simple and effective disciplinary and preventive measure.
At the same time, the reform permits the appointment for the second term of the judges, who pleased the President or the Chamber of regions during the first term of their work. The operating Constitution does not allow this, but the Presidents draft mentions the possibility of the repeated appointment of a constitutional judge. The age of retirement on a pension of the constitutional judges is increased up to 75 years, and this does not arouse any objections.
Since the judges of the Constitutional Court will be appointed (not elected) and since they may be appointed to their post twice, the danger of stuff favoritism in the structure of the constitutional surveillance and control essentially increases.
The constitutional reform also cancels the limitation of the term of stay at the post of the head of the Constitutional Court. Now this term is equal to three years. Since the heads of Ukrainian courts will be appointed, according to the new Constitution, only by the President, the re-appointment of the head of the Constitutional Court also becomes the prerogative of the President (!).
That is why the development of democracy, which is declared as the main result of the constitutional reform, seems to be rather rhetorical. This reform will cause the development of club mentality and corporatism in the entire structure of the Ukrainian power pyramid.
It is obvious that the behavior of judges during the first ten years of their work will influence the probability of their re-appointment, so the level of their professional independent will noticeably decrease.
As to the model of the constitutional competences of the State gatherings, the draft determines these competences very briefly and modestly. Although the State gatherings will have the right to appoint the Prime-Minister, they will be able to do this only after the recommendation of the President.
Certainly, they will have the right to adopt some laws, but these laws will become operable only after the approval by the Chamber of regions and the President. In fact, the laws adopted by the State gatherings will be always under the threat of double veto.
The right of the State gatherings to appoint the Presidential election in the terms stipulated by the Constitution may not be regarded as serious because of the obvious automatism of this action. It resembles the function of a muezzin, who announces the time of prayers.
The draft (Article 90) also states the right of the President to cancel before the proper term the authorities of the State gatherings, if the “permanently acting parliamentary majority” would not be created in the chamber within a month.
Yet, firstly, nothing “permanently acting” cannot be created within a month – this thesis is obviously incorrect because of the absence of the criteria of “permanence”, and, secondly, the political sense of this innovation is rather incomprehensible.
This very fragment of the constitutional innovation is the most convincing evidence of the absence of the general logical structure of the draft. The concept of the majority may not be introduced without the exactly defined principles, and it is impossible to make sure of the “permanence” of political majority during one month.
Nothing permanent exists in politics, except the perpetual competition of interests, polemics and fluctuations of political mood. So, the project looks as a demand to the Parliament to “freeze” politically, to fix itself in the certain state, the criteria of which are not determined too.
Yet, in spite of all official rhetoric of the adherents of the reform, the unbiased analysis of its ideological sources confirms that the reform does not decrease, but increases the authoritarian principles in governing the state.
In the accordance with the reform, the appointments of the ministers of force structures will remain a prerogative of the President. Yet, now this procedure is applied only practically (the ministers of force structures are not distinguished in the list of appointments), and from now on such appointments will be realized on the basis of direct constitutional prescription.
However, earlier all ministers were appointed to their posts by the President, and the reform envisages the appointment of the “ordinary” ministers by the State gatherings. Here one can see some limited democratization of the constitutional procedure of the creation of the executive power branch, but this compromise does not look convincingly, if one recollects that the heads of local state administrations will be appointed by the President, as before, and the budget expenditures of the Presidential administration will again exceed the expenditures of the government.
The operating Constitution declares that the President creates the courts in the accordance with the procedure stipulated by law. Yet, the reform allows the President also to liquidate the courts, to settle the number of judges in courts, to transfer the judges and to appoint the heads of court establishments. It would be logical to draw the conclusion that the draft of the reform envisages not only the restricted court administering by the President, but the direct management of the entire court system.
So, to what conclusions one can come on the basis of the above-said? First of all, the draft of the constitutional reform increases the centralization in the country instead of decreasing it. It implies not the restricted introduction of the parliamentary-presidential model, but the centripetal modification of the entire structure of state power in Ukraine.
In order to do this the ideologists and the authors of the reform used the decorative model of the proportional election of the deputies of the State gatherings, who are deprived of all more or less significant constitutional authorities. So, the reform trends to the majority, not proportional, principle of forming the supreme legislative organ of Ukraine.
If to consider the draft from the philosophic viewpoint, it seems that the draft reflected the modern sorrowful tendency to narrow the democratic principles of national parliamentarism and the general degradation of the political system of the country.
The political theory declares that real democracy is a complicated social institution with precise procedural demands and almost unpredictable consequences of the use of these demands. So, the democracy cannot be programmed. However, the draft demonstrates the wish of the power to narrow the sphere of the political freedom of people, to exclude the stochastic political processes from public life, to increase the level of the state influence on civil society and to control all strategic decisions taken by the society.
One may also say that the draft, by its concrete administrative idea and even the subconscious political potential, not only distrusts the democracy, but is afraid of it. The authors of the draft misuse the professional-democratic phraseology, but really they “do not believe” in liberal freedoms and creative unpredictability of social progress. Formally the draft appeals to the classical postulates of constitutionalism, but in fact it ignores and vulgarizes its principles.
It seems that the draft also reflects the certainty of its authors that the national idea, as well as the democratic idea, appeared to be good-for-nothing. Since the results of the Ukrainian democracy often does not agree with the authoritarian understanding of the political advisability, the power again proposes to the population the politically obscurantist methods of solving problems.
In its implicit aspirations the draft is based on the acknowledgement of the perspective of the long-lasting poverty in the country. It does not stimulate the principle of the so-called “risking society” (U. Beck), the main goal of which is the progress.
To sum up, the draft may be called “disciplinary” by its contents and hypocritical by its form. This draft will not bring democracy and freedom to the Ukrainian people. In fact, this is just another version of the referendum-2000.
So, it is not surprising that the draft was denounced by almost all Ukrainian participants of the International conference on the higher level “The civil society in Ukraine” that was hold on 7-8 April 2003 in Washington.
Freedom of expression
The National Council got the authority to cancel the licenses for broadcasting without court decision
The unexpected legal norm initiated by the Committee of state construction and local self-rule endangers the work of TV companies during the election.
The Law adopted on 15 May by the Parliament stipulates the right of the Central and district voting commissions to present this question to the National Council in charge of TV and radio broadcasting. This unexpected legal norm initiated by the Committee of state construction and local self-rule endangers the work of TV companies during the election.
Theoretically, this law should change only the norms that contradict the law on election adopted earlier. Yet, it has another role too. Adopting this law, the deputies, in fact, created heavy work conditions for Ukrainian TV and radio organizations during the election campaigns and referendums.
Along with the “usual” changes, the law contains the interpretation of Article 28 of the Law of Ukraine “On TV and radio broadcasting”, which stipulates the activities of TV and radio organizations connected with election process or the process of a referendum. And here we have some pitfalls.
The discussed changes concern the activities of TV and radio organizations not only during the election of peoples deputies. This law stipulates the activities of TV and radio companies during any elections or referendums.
This law gives the additional authorities to the National Council in charge of TV and radio broadcasting related to the control of the fulfillment by the TV and radio organizations of the laws on election. The Council also got the authority “to cancel temporarily (until the end of the election process) the licenses for the use of broadcasting channels on the application of Central Voting commission or district (territorial) voting commissions”.
This norm is rather surprising, since is contains a great number of contradictions and inexactitudes.
First, this norm contradicts Article 32 of the Ukrainian Law “On the National Council in charge of TV and radio broadcasting”, which stipulates the rights of the Council and the sanctions that it may apply. This article envisages the possibility “to cancel temporarily (for the term up to two months) the licenses for the use of broadcasting channels (this measure is used after the application of other punishment measures, except the cases of violation of the demands of part 2 Article 2 of the Law of Ukraine “On TV and radio broadcasting”)”. I want to remind that the election process lasts for 90 days, which is more than two months. Moreover, the mentioned exception has no connection with the election laws. It should be also said that the Law of Ukraine “On election of peoples deputies of Ukraine”, as well as other laws, does not give the right to the voting commissions to turn to the National Council with the applications about applying sanctions. According to part 2 Article 19 of the Ukrainian Constitution, “the organs of state power, organs of local self-rule and their officers must act only on the basis and in the framework of their authorities using the methods envisaged by the Constitution and laws of Ukraine”. So, the presented norm of the Law does not agree with the Constitution too.
Secondly, according to this Law, the National Council may cancel the licenses “in case of transmitting the features that contain the information, the distribution of which is prohibited by the laws on election”. This provision violates one of the fundamental principles of bringing to responsibility: any violation must be defined exactly. Here the legislators refer to three laws that stipulate the procedure of election of the President, deputies and organs of local self-rule. It is absolutely incomprehensible which information is prohibited for distribution by the law on election and what law is meant. So, it is also incomprehensible what information being distributed may result in the temporary cancellation of the license, although some information of this kind is defined in Article 56 of the Ukrainian Law “On election of peoples deputies”, which envisages the restrictions during the pre-election agitation. Yet, there are no exact definitions. Thus, the TV and radio organizations do not know for which actions they may be punished. So, they cannot avoid the illegal actions. Such formulation will inevitably result in the misuses on the side of state organs and officers, as well as in the self-censorship of TV and radio companies during the elucidation of election process or referendum.
The probability of the censorship also increases because the responsibility is envisaged for the contents of information, but not for the methods of its distribution. Therefore, for instance, the refusal to spread the agitation materials, political advertisement on the eve of election or other similar abuses are the procedural ones, and the punishment sanctions for them are imposed by court.
Thirdly, the state organs got one more tool of pressure upon TV and radio organizations of Ukraine during the election process, because now they have the right to cancel the licenses. The operating version of the law, unlike the newly adopted one, states that the temporary cancellation of the license may be realized only “after a court decision, except the cases of transmitting the features that directly appeal for the overthrow of the constitutional order or violation of the territorial integrity of Ukraine”. Here all is defined exactly and understandably. Now we have the situation, when the National Council may cancel the license for spreading some information, which is not clearly defined. This is a good opportunity to exclude the opposition TV and radio organization from the election process. And the National Council, in its turn, becomes a political organ.
Fourthly, this norm again does not agree with European standards in the sphere of TV and radio broadcasting. One of the main principles of independent electronic mass media is the complicacy of the procedure of cancellation the licenses. The sanctions in the form of temporary or complete cancellation of the license may be applied in democratic countries only for numerous (systematic) brutal violations of laws and only after the application of other, less strict, measures. The discussed legal norm envisages the responsibility for the one-time violation of a vague clause of an obscure law.
Finally, this norm does not blend with the general structure of the Ukrainian legislation. The Law of Ukraine “On information” is the basic legal act in the informational sphere. So, this very law should contain the list of information, the distribution of which is prohibited, and the sanctions should be applied for violating this law.
Besides, the discussed norm states: “The activities of TV and radio organizations may be temporarily cancelled after the court decision in the cases envisaged by laws on election”. This provision is absolutely incomprehensible. What is the meaning of the phrase “the activities… may be temporarily cancelled”? It is more or less understandable how the license may be cancelled, but it is difficult to understand what this formula means. One may only guess what the legislators wanted to say. Maybe, it is possible to cancel the work of a TV and radio organization as a subject of entrepreneurial activities. Yet, the Ukrainian laws do not envisage the right of state organs to temporarily cancel the activities of juridical persons. Besides, the laws on election contain no grounds for canceling the activities of TV and radio organizations.
The newly adopted law also widens the sphere of responsibility of the TV and radio organizations for spreading the information, which is contained in the speeches of the candidates for the elective posts. Earlier these organizations were not responsible for such information, but now this is true only for the directly transmitted features. Yet, if such feature was recorded beforehand, then the organization is responsible for the contents of candidates speeches. So, now the TV and radio companies must censor and edit the recorded speeches in order not to violate the election laws. And how the candidate would react, if his appearance would be shortened? Moreover, the equality of the rights will be abused, since a candidate, who appears in direct transmission, will be able to say more than another candidate, whose speech will be recorded. The possibility will also appear to censor the speeches of opposition candidates.
It is noteworthy that the draft was not assessed negatively by the deputies. On the contrary, the authors of the draft took into account the propositions of MPs Yu. Kliuchkovskiy and M. Tomenko. At that, the changes concerning the temporary cancellation of the licenses were presented by Yu. Kliuchkovskiy, a deputy from the party “Our Ukraine”. Unfortunately, the deputies did not correct the obvious drawbacks of the draft, and this will undoubtedly influence the elucidation of elections and referendums by Ukrainian TV and radio companies.
It is also interesting that these legal changes do not concern printed mass media (for which a norm referring to the law on election was merely stipulated), but only electronic ones, and the attention to TV and radio, as we see, appeared to be excessive.
Naturally, all these drawbacks may be challenged in court, and we hope that electronic mass media will use this right. Let us wait until the next election campaign, and then we will observe the tendencies of applying these legal norms.
We also hope that the President will use his veto right and will return this law to the Supreme Rada together with his propositions.
Volodymir Yavorskiy, a lawyer of the Association of network TV and radio broadcasters of Ukraine, 16 May 2003, “Telekritika”
The criminal case against journalists after "the facts of illegal influence on the President" was closed.
The comment of Tomenko passed to the agency UNIAN reads that he received the response to his deputys request. The letter was sent by Viktor Shokhin, a deputy of the General Prosecutor. Shokhin informs that “no criminal deeds envisaged by the Criminal Code of Ukraine” were found in the actions of the workers of the editions from the Kherson, Dnepropetrovsk, Cherkassy, Kharkov and other oblasts, against whom the investigation activities were conducted in the framework of criminal case No. 149-1120.
The deputys request of Mykola Tomenko concerning this case was supported on 14 May by the Supreme Rada (172 votes “for”).
The deputy of the General Prosecutor points out in his letter that “the investigation did not found any suspected or accused in this case” and that “the criminal case was closed on 13 May 2003 on the basis of the demands of item 2 Article 6 of the Criminal Code of Ukraine”. According to this provision, “a criminal case may not be started, and the already started criminal case must be closed if corpus delicti is absent”.
M. Tomenko reminded that the present case was started “according to part 1 Article 334 of the Criminal Code of Ukraine, after the facts of publications in mass media, brochures and other editions of materials directed at the illegal influence on the President of Ukraine with the purpose to impede the fulfillment by him of his service duties”.
“Thus”, the deputy stated, “at last the General Prosecutors office acknowledged the absurdity of this case. Interpreting the journalists materials as “the attempts to impede Presidents activities” could result only in the increase of the disrespect of the Ukrainian society and other countries for the Ukrainian legal system, in the further discredit of prosecutors and other organs, which, according to the law, must control the observance of laws in Ukraine”.
M. Tomenko is sure that the solidarity of the public, politicians, mass media and journalists influenced very much on the decision to close the case. “At last”, he said, ”the power stopped to discredit itself and Ukraine as a whole”.
30 May 2003
The open letter to President Kuchma from the all-Ukrainian public organization "Ukrainian Internet community".
The Security Service of Ukraine prepared the draft of Resolution of the Cabinet of Ministers “On the re-delegation of the rights to administer the domain .UA” No. 1818-4897 of 21 April 2003.
The text of the mentioned draft of the Resolution and the explanatory note to this draft contain numerous mistakes, inauthentic and sometimes completely false information.
The draft envisages the creation of the enterprise “The Ukrainian network informational center” managed by the USS. At that the explanatory note contains references to the recommendations of the GAC ICANN, which are interpreted erroneously. According to these recommendations of the GAC ICANN, “the role of the state consists in guaranteeing the administration of the geographic domain in public interests taking into account the national laws” (item 5.1), but not in the creation of state enterprises controlled by special services. Item 5.2 of the discussed draft reads that the government is responsible for the transparency of its activities that concern the processes connected with the administering of the domain.
We want to turn your attention to the fact that the special services, which prepare the state documents in the closed regime, may not be the guarantors of public interests and the model of transparency, and that the creation of such enterprise has no relation with public interests.
We also want to point out that the adoption of this Resolution will not only require a significant amount of state finances and will give no real profit, but also will essentially deteriorate the international image of Ukraine and will exert the negative influence upon the confidence of millions of Ukrainian citizens in the President and government.
We inform you that on 30 January 2003 the Opened Public supervision council in charge of the question of administering the domain .UA was created in Ukraine in the absolute correspondence with the demands of the IСANN and the best international practices. The operating administration of the domain, the greatest independent union of Ukrainian Internet-companies and the all-Ukrainian public organization “Ukrainian Internet community” signed the corresponding multilateral agreement. All questions, which were potentially interesting for state organs (adjustment of the rules of registration of domains, compilation of standard agreements, control over software and even financial audit), were related to the competence of this supervision council. Some representatives of state organs have been already invited for the work in the council.
The subordination of the domain .UA to the special services creates the conditions for violating the constitutional rights and freedoms of citizens, which are stipulated by Article 15, 31, 32, 34 and 42 of the Constitution of Ukraine.
We ask you to interfere personally in this situation and to stop the brutal and non-transparent meddling of the Ukrainian special services into the reform of administering the Ukrainian public resource – domain .UA. We also believe that it should be expedient to conduct the public investigation of the circumstances of preparing the draft of the Resolution and the explanatory note to it.
We ask you to give the commission to the corresponding state organs to define what is the legal state interest in the problems of the domain and to send a state representative to the Public supervision council in charge of the questions of administering the domain .UA.
We hope that you will protect legal rights and interests of Ukrainian citizens – the Internet users.
Sincerely yours, the Head if the Executive council of
the all-Ukrainian public organization “Ukrainian Internet community”
13 May 2003
The USS tries to control the Internet.
The adoption will also have a number of other consequences:
- the precedent will be created of presentation by the USS of incomplete and false information for grounding the decisions of state level;
- the attempt of the coercive nationalization of the self-ruled public resource, which is now the domain “UA”;
- the attempt of the regulation by the sublegal acts of the legal relationships, which concern the world system of domain names that was created and is indirectly controlled by the USA government;
- the attempt of the receiving of the finances from the state budget for the creation of the structure, the goals and tasks of which are not properly grounded;
- the direct meddling of the Ukrainian government to the economic activities of several thousands of subjects of the entrepreneurial activities – registrars of domain names in the domain “UA”;
- the direct danger on the side of the USS to the constitutional rights and freedoms of the Ukrainian citizens connected with information exchange and protection of personal data;
- a step to the complete monopolization of the sphere of communications and the USS control over this sphere.
The appeal of representatives of mass media and human rights protecting organizations of the Lugansk oblast.
We want to remind that the indignation of V. Medianik was aroused by the article written by Nikolay Severin and published in the newspaper “Rakurs-plus” in summer of last year. In this article the deputy was criticized for his unwillingness to fulfill his pre-election promises.
Being a Ukrainian citizen, deputy V. Medianik has the right to turn to court demanding to protect his rights. Yet, this court, according to the Constitution, must guarantee the equality of all parties of the process.
In October 2002, when the case was on the stage of pre-trial preparation, judge O. Matveyshina issued the decision about the seizure of all runs of the newspaper “Rakurs-plus” until the end of the year, of the equipment of the editorial board and personal property of the author of publication. This decision was taken on the basis of a petition of V. Medianik.
In fact, the newspaper had been already closed before the beginning of the trial. The damage equal to tens of thousands hryvnas was inflicted to the editorial board.
The editorial board of the newspaper “Rakurs-plus” handed the complaint against the decision of judge Matveyshina to the Appeal court of Lugansk. Five months later the appeal court cancelled the decision. This could happen even earlier, but neither deputy Medianik nor his representative advocate N. Bukvich appeared on the court sessions.
On 24 April 2003, during the first court sitting on this case, judge O. Matveyshina prohibited to the TV company “Irta” to make video-records. Thus, the judge violated Article 171 of the Criminal Code of Ukraine that envisages criminal responsibility for impeding the professional activities of journalists. For some reasons, the consideration of the case having a great public resonance was conducted in judges office, and not in a courtroom.
Before this, in autumn 2001, the same judge considered the case of the same deputy against the national TV and radio company “Kontinent” and issued the decision about the seizure of the transmitters of the company. This meant the termination of the work of the company “Kontinent”, while the result of the consideration of the case was not known yet.
However, the administration of the TV company “Kontinent” managed to force the officers of justice to respect laws. It should be noted that the mentioned case is considered already for two years, and nobody can predict when this red tape will finish.
The actions of O. Matveyshina mean either that she does not know the laws on informational activities, or that she fulfils some political order.
Unfortunately, this attempt of court interference into the activities of independent mass media did not obtain any legal assessment of higher court instances. This disturbing fact allows to think that the methods similar to the actions of judge Matveyshina can be used during the forthcoming Presidential election, when both local authorities and political parties will not be interested in the independent and unbiased court.
Alas, such incidents are not infrequent in the Leninskiy district court, as well as in other courts of the Lugansk oblast.
We, journalists, want to live and work obeying the Ukrainian laws. But we demand to observe our rights, in particular, the right for own opinion, the right for information and for the opportunity to deliver this information to our readers, listeners and spectators without obstacles.
V. Bakumenko, the head of the press center of the all-Ukrainian newspaper “Gromadskiy kontrol”;
K. Poltavskaya, the editor-in-chief of the national TV and radio company “IRTA”;
A. Savenko, the head of the informational service of the national TV and radio company “IRTA”;
N. Kozyrev, the head of the board of the Public committee for the protection of constitutional rights and freedoms of citizens, a correspondent of the newspaper “Svoboda”.
"The Chronicle of violations of human rights in the Lugansk oblast”, April 2003, the bulletin of the Lugansk oblast branch of the public organization “Voters Committee of Ukraine”
“Freedom House”: the freedom of speech is absent in Ukraine
Kuchma again got to the list of enemies of the press
Along with Kuchma, the Presidents of five more former USSR republics got into this list: Putin (Russia), Lukashenko (Byelorussia), Nazarbayev (Kazakhstan), Niyazov (Turkmenistan), Karimov (Uzbekistan), as well as the leaders of Zimbabwe, Togo, Bangladesh, the Saudi Arabia, Iran, Cuba, Israel, the heads of the Chechen mafia, Spanish ETA and Islamic groups.
“Since these people”, the “Reporters” write, “endanger the everyones right to inform and to be informed, the public must know their names.”
Who is the insulted one?
The judge asked N. Morgunov not to repeat in future such actions as strapping state officers.
N. Morgunov was accused of the crime envisaged by Article 296 part 1 of the Criminal Code of Ukraine. Glagovskiy, the prosecutor of Severodonetsk, formulated his accusation against Morgunov in the following way: “… on 2 July 2002, about 8:10 a.m., Nikolay Morgunov entered the office of V. Nedilko, the main specialist of the managing apparatus of the executive committee, with the intention of brutal violation of public order on the basis of negligible reason. Here Morgunov began to swear at Nedilko, after which he threw a jar with sour cream towards the deputy and spoiled his shirt costing 150 hryvnas, trousers costing 90 hryvnas, shoes costing 450 hryvnas and 5 rolls of wallpaper having the total cost of 200 hryvnas, which were bought by Nedilka at his own expense. All in all, the inflicted material damage was equal to 890 hryvnas. After this Morgunov took off his belt and delivered several blows in different parts of Nedilkos body inflicting injuries in the form of the graze on Nedilkos chest, in the oblast of the left forearm, on the right side of the back surface of the chest, on the external side of the right shoulder and on the external side of the left elbow joint, which, according to the act of the forensic expertise of 2 July 2002 is regarded as slight bodily injuries without serious harm to health. The hooligan actions of Morgumov were of prolonged and continuous character and lasted for 10 minutes”.
The reason “negligible” for the prosecutors office, but important for the accused was the violation of his rights of grandfather. N. Morgunov explained that V. Nedilko and his concubine, the former daughter-in-law of Morgunov, ignored resolution No. 434 of the town directorate of education of 14 May 2002 and impeded his meetings with granddaughter making him to meet her in secret.
In summer 2002 the grandfather prepared some presents for the girl, who stayed in the summer camp, and wanted to visit her. Yet, Nedilko took the girl away from the camp before this meeting. Morgunov came to the town executive committee and tried to learn from Nedilko, where his granddaughter was, but Nedilko answered that Morgunov had no granddaughter. The old man was outraged with this answer, he splashed sour cream at Nedilkos table, took off his belt and hit him with it twice.
Nedilko estimated the moral and material damage inflicted to him and the damage to his business reputation as equal to 5000 UAH. At that he, being a state official, followed the principles of “humanism and social equity; priority of rights and freedoms of a citizen”; being a deputy he obeyed the rules of deputies ethics: “not to humiliate honor and dignity of voters”.
Taking into account the everyday boorishness of our officials, the described measure – strapping with belt – seems to be rather useful, but too expensive, especially for pensioners.
On 7 October 2002 Severodonetsk town court started the consideration of Morgunovs case, but the advocate of the accused insisted on the consideration in the Rubezhnoye town court. The advocate did not believe that Severodonetsk court would consider the case impartially and would punish the guilty.
After the first court sitting the prosecutors officer of Rubezhnoye, who supported the accusation, said that this case was very complicated, since it was overflowed with emotions.
The result of the attempt of the court to estimate the actual sum of the damage was unpleasant for the victim: the court rejected his claims. Really, the complaint looks rather improbably: it seems to be impossibly to spoil a shirt, trousers, shoes and five rolls of wallpaper with one jar of sour cream (250 ml). And how Nedilko could afford to buy so expensive clothes for himself and wallpaper for his office? This question was solved by the mother of the victim: she gave money to her son and took the decisions about the utilization of his things on the basis of … mystical reasons. So, she threw away the shoes spoiled by the sour cream being afraid of sorcery.
The results of the forensic expertise are also rather strange. Nobody except Severodonetsk official Nedilko has such part of body as “the right side of the back surface of the chest”. Besides, the accused stated that he was beating Nedilko only on his bottom. He had no other alternative, since after he splashed the cream on the table, the victim tried to leave the room, being bowed and showing him the mentioned part.
The officer of the Rubezhnoye prosecutors office, who asked to stop the case on the basis of Article 48 of the Criminal Code of Ukraine and to reject the claim on recompensing the material and moral damage, together with the Rubezhnoye town court, which issued the resolution about the cessation of the criminal case, cut short the attempts of the insulted official to put Morgunov in his place.
Unfortunately, Nedilko still insults the dignity of both the old man and his granddaughter, who is deprived of the right to meet her grandfather.
The Constitutional Court interpreted part 1 Article 7 of the Civil Code of the UkrSSR
“PL” editorial board
IN THE NAME OF UKRAINE
THE DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE
The decision of the Constitutional Court of Ukraine on the constitutional appeal of citizen Valeriy Serdiuk about the official interpretation of part 1 Article 7 of the Civil Code of UkrSSR (spreading the information).
Kyiv Case No. 1-9/2003 10 April 2003 No. 8-рп/2003
The Constitutional Court of Ukraine consisting of judges of the Constitutional Court of Ukraine:
Mykola Selivon – the chairman, Pavel Evgrafov, Mykhaylo Kostytsky – judge-speaker, Ludmila Malinnikova, Oleksandr Mironenko, Valeriy Pshenichny, Vitaliy Rozenko, Mykola Savenko, Viktor Skomorokha, Ivan Timchenko, Volodymir Tykhiy, Pavel Tkachuk, Ludmila Chubar and Volodymir Shapoval,
considered at the plenary sitting the case on the official interpretation of the provision of part 1 Article 7 of the Civil Code of the UkrSSR (1540-06) “spreading the information”.
The consideration of the case according to Articles 42 and 43 of the Law of Ukraine “On the Constitutional Court of Ukraine” was caused by the constitutional appeal of citizen of Ukraine Valeriy Serdiuk.
According to Article 94 of the Law of Ukraine “On the Constitutional Court of Ukraine” (422/96-ВР), the reason for the consideration of the case is the ambiguous application by the Ukrainian courts of part 1 Article 7 of the Civil Code of the UkrSSR (1540-06) concerning the question brought up in the constitutional appeal.
Having listened to judge-speaker M. Kostytsky and after the investigation of the materials of the case the Constitutional Court of Ukraine
1. Citizen Valeriy Serdiuk turned to the Constitutional Court of Ukraine with the request on the official interpretation of the provision of part 1 Article 7 of the Civil Code of the UkrSSR (1540-06) (the Civil Code, in what follows) “spreading the information”. The applicant substantiated the practical need of the official interpretation with the fact of the ambiguous application of this provision by the Ukrainian courts, which, in the opinion of V. Serdiuk, resulted in violation of his constitutional rights.
The subject of the right for constitutional appeals points out that his appeal on the illegal actions of an inspector of the state tax administration of Poltava handed to the Poltava oblast Tax Administration was regarded by the Zhovtnevy district court of Poltava as spreading the untrue information that discredited honor, dignity and business reputation of the officer of the tax inspection. The court obliged V. Serdiuk to refute this information by sending the application to the corresponding department of the tax administration and to recompense the moral damage inflicted to the state officer.
The panel of judges on civil cases of the Poltava oblast court and the panel of judges of the court chamber on civil cases of the Supreme Court of Ukraine rejected the cassation complaint of V. Serdiuk against the decision of the district court of Poltava.
The claimant appended to the appeal the excerpt from the resolution of the Plenum of the Supreme Court of Ukraine of 26 December 1997 (No. 0024700-97) on the claim of the family of B. against citizen L. about the protection of honor, dignity and business reputation and the compensation of moral damage, as well as the excerpt from the resolution of the presidium of the Zhytomir oblast court of 2 June 2000 on the claim of citizen S. against citizen M. about the protection of honor, dignity and the compensation of moral damage, which claims were considered with other legal consequences.
2. In his response to the request of the Constitutional Court of Ukraine the head of the Supreme Court of Ukraine points out that a complaint of a person handed to a law-enforcing organ against the illegal actions of an officer of this organ connected with the fulfillment of his service duties or authorities is regarded as spreading the information about this officer. Yet, this appeal may not be a basis for the civil responsibility of the applicant in the accordance with Article 7 of the Civil Code (1540-06), even if this information is untrue. The information handed to a law-enforcing organ about the actions of its officer connected with the fulfillment of his service duties, but not connected with the realization of his authorities, is regarded as the information about the behavior of this officer, but not as spreading the information in the conception of Article 7 of the Civil Code independently of the veracity of this information. An applicant may be brought to responsibility after Article 7 of the Civil Code (1540-06) only if this information concerns the behavior (activity or passivity) of a law-enforcing officer, assessment of his personality (personal features) in the presence of all circumstances envisaged by this article.
Besides, the above-mentioned resolution of the Plenum of the Supreme Court of Ukraine of 26 December 1997 (No. 0024700-97) reads that, according to the substance of Article 7 of the Civil Code (1540-06), “the appeals of citizens to law-enforcing organs on the protection of their rights from the illegal actions of other persons, including the evidence of a witness during the preliminary investigation, may not be regarded as spreading the untrue information”.
The State tax administration of Ukraine reckons that, in the context of Article 7 of the Civil Code (1540-06), citizens complaints against the illegal actions of the officers of law-enforcing organs handed to these organs in the accordance to the procedure stipulated by the Law of Ukraine “On citizens appeals” (393/96-ВР) may not be regarded as spreading the information about these officers and may not be a ground for civil responsibility of the citizens.
The responses of V. Koretskiy institute of the state and law, G. Skovoroda institute of philosophy and the Institute of political and ethnic-national research of the National Academy of Sciences of Ukraine also contain the similar conclusions.
3. Part 1 of Article 7 of the Civil Code (1540-06) states that “citizens and organizations have the right to demand through court the refutation of untrue or incorrectly stated information, which discredits their honor, dignity or business reputation or inflict damage to their interests, if the person, who spreads this information, cannot prove the authenticity of the information”. According to the Constitution of Ukraine (254к/96-ВР), everybody has the right to direct individual or collective written complaints or to turn personally to the organs of state power, organs of local self-rule and state officials, who must consider the complaint and give the answer in the term stipulated by law (Article 40); everybody has the right to appeal to court against the decisions, activities or passivity of the organs of state power, organs of local self-rule and state officials (part 2 Article 55).
The question of practical realization of these rights by citizens are regulated, in particular, by the Law of Ukraine “On citizens appeals” (393/96-ВР), which guarantees to citizens the opportunity to take part in state and public affairs, to exert influence on the improvement of the work of the organs of state power and local self-rule, enterprises, establishments and organizations independently of the form of property, to defend their rights and legal interests and to restore their rights in the case of violation by stating their propositions (remarks), appeals (petitions) and complaints in written or oral form.
According to part 5 Article 55 of the Constitution of Ukraine (254к/96-ВР), “everybody has the right to protect his rights and freedoms from violations and illegal infringements in any ways, which are not prohibited by laws”. Besides, Article 4 of the Law of Ukraine “On citizens appeals” (393/96-ВР) envisages the reasons, which give the right to citizens to appeal against the decisions, activities or passivity in the sphere of administrative work, including the decisions, activities or passivity of the organs of state tax administration and their officers, which right is also stipulated by the Law of Ukraine “On the state tax administration in Ukraine” (509-12).
Taking into account the above-mentioned arguments, the Constitutional Court of Ukraine believes that the appeals of citizens to law-enforcing organs that contain the information about the non-observance of laws by state officers are handed for checking this information by other state officers empowered to do this, but not with the aim to communicate the information to public or separate citizens. Thus, according to the essence of part 1 of Article 7 of the Civil Code (1540-06), such appeals may not be regarded as spreading the untrue information that discredits honor, dignity and business reputation or inflict damage to the interests of a law-enforcing officer.
The problems connected with the peculiarities of the realization of the citizens right for the freedom of expressing the opinions and the criticism of the activities (passivity) of state officers were considered many times by the European court of human rights. Using the provisions of Article 10 of the Convention of human rights and fundamental freedoms (995_004), in the decisions in the cases “Nikula vs. Finland” (980_042 ), ”Janowski vs. Poland”, etc., the Court points out that the ambit of the permitted information concerning state officers may be wider than the ambit of the information on common citizens. So, if a state official acts without the legal grounds, he must be ready for the critical reaction of the public.
At the same time, the presence of the deliberately untrue information in the appeals to law-enforcing organs results in disciplinary, civil, administrative or criminal responsibility according to the Ukrainian laws.
For example, Articles 173-1 and 212-1 of the Administrative Code of Ukraine (80731-10) envisage the administrative responsibility for spreading the untrue rumors that can provoke the panic or disturbance of public order, as well as for communicating the deliberately false information to the organs of registering the acts of civil status.
The Criminal Code of Ukraine (2341-14) envisages the criminal responsibility for spreading the deliberately false information about the preparation of explosion, arson or other actions that can result in death of people or other grave consequences (Article 259), deliberately false information about a committed crime communicated to a court, prosecutor, investigating officer or organ (Article 383), etc.
Besides, Article 27 of the Law of Ukraine “On citizens appeals” (393/96-ВР) envisages the recompensing by the applicant of the expenditures connected with the check of the appeals that contain the deliberately false information.
An applicant may be brought to civil responsibility envisaged by Article 7 of the Civil Code (1540-06) as a consequence of spreading false information about personal (family) life of law-enforcing officers.
On the basis of the above-said and according to Articles 147 and 150 of the Constitution of Ukraine (254к/96-ВР), Articles 51, 94 and 95 of the Law of Ukraine “On the Constitutional Court of Ukraine” (422/96-ВР), the Constitutional Court of Ukraine
1. In the aspect of the constitutional appeal the provision of part 1 Article 7 of the Civil Code of the UkrSSR (1540-06) “spreading the information” must be interpreted in the following way: the information stated in the letters, appeals and complaints to law-enforcing organs by a person, who believes that his/her rights were abused by the officers of this organ during the fulfillment of service duties, may not be regarded as spreading the information that discredits honor, dignity and business reputation or inflicts damage to interests of these officers.
Communication of the deliberately false information in the letters, appeals and complaints to law-enforcing organs entails the responsibility stipulated by the operating laws of Ukraine.
2. The decision of the Constitutional Court of Ukraine is obligatory for the fulfillment on the territory of Ukraine, it is final and may not be appealed.
The decision of the Constitutional Court of Ukraine must be published in “Visnyk Konstitutsionnogo Sudu” (“The Herald of the Constitutional Court of Ukraine”) and in other official editions of Ukraine.
Vasyl Stus Street in Kyiv
There are several tens of big new houses in this street, thousands of people live there. Nearby, at the Vernadsky Avenue, one of the houses is decorated with the memorial plate made by Boris Dovgan. This plate informs: “In this house in 1963-1965 lived poet Vasyl Stus”. By the way, this plate was installed twice – in 1995 and in 2000, since the first plate was stolen by some barbarians.
In 1965 Vasyl Stus got married to Valentina Popeliukh and moved to the neighboring Lvivska street, where he lived until his arrest in 1972. Now Stuss widow lives in the same district, at Chernobylska Street. There the poet, human rights protector and a member of the Ukrainian Helsinki Group lived only for 8 months, till the arrest on 14 May 1980. When Stus was reburied, his body was taken there for the last obeisance. The poems of Vasul Stus are full of the light reminiscences about the Sviatoshisnkiy district. The local inhabitants also remember and respect him.
The celebration devoted to the renaming of the street was hold on 21 May 2003 near the house, and then moved to school No. 200, which will also be named after Vasyl Stus. Poets widow, his son Dmytro, Mykhaylina Kotsiubinska, Evhen Sverstiuk, Mykhaylo Goryn, Mykola Gorbal and Mykola Malyshko took part in the celebration.