Main menu  >>

V. POLITICAL RIGHTS AND FREEDOMS: ISSUES ON COMPLIANCE AND PROTECTION

5.2. RIGHT TO INFORMATION. FREEDOM OF SPEECH, THOUGHT AND OPINION

World practice in democratic state-building convincingly shows that the right to freedom of thought and speech, free opinion and convictions is a cornerstone for the establishment of a democratic, law-governed state and civil society. There is no democracy without freedom of speech.

Resolution 59 (1) of the UN General Assembly states that freedom of information is the basic human right and criteria for all other freedoms.

The Ukrainian Constitution (Article 34) guarantees every person the right to freedom of thought and speech and to the free expression of views and beliefs, free collection, storage, use and dissemination of information. This important constitutional provision completely accords with Article 19 of the Universal Declaration of Human Rights and Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Ukraine holds one of the leading places in the CIS as to the number of laws on the mass media intended to extend transparency and society’s access to information. According to international experts, Ukrainian legislation on information makes it possible to exercise the human rights to freedom of speech and thought, although the laws are in need of certain modifications, amendments and additions.

The Laws of Ukraine On Information (1992), On the Printed Mass Media (Press) in Ukraine (1992), On Information Agencies (1995), On Television and Broadcasting (1993), On Introducing Amendments and Additions to the Provisions of the Ukrainian Laws Pertaining to the Protection of the Honor, Dignity and Business Reputation of Individuals and Organizations (1993), On Ownership (1992), On Advertisement (1997), On the Procedure for Covering the Activity of Bodies of State Authority and Bodies of Local Self-government in Ukraine by the Mass Media (1998), and On State Support of the Mass Media and Social Protection of Journalists (1998) have set up a vast legal framework defining the mechanism for exercising the constitutional right to freedom of thought and speech, free expression of opinions and convictions, and access to information.

The subjects of information relations (natural persons, legal entities, and the state) have created an extensive network of information. As of January 1, 2000, the State Committee for Information Policy registered and reregistered 3,816 periodicals that are disseminated nationwide, on the regional level and in foreign countries: 1,568 newspapers, 1,720 magazines, and bulletins, almanacs, collections, calendars and digests. Local directorates for the press and information registered and reregistered 6,410 periodicals as of January 1, 2000, including 5,432 newspapers and 662 magazines. In 1999 there were 10,226 periodicals, almost by 2,000 more than in 1998. Locally distributed publications amount to 62.7% of all the registered and reregistered periodicals.

According to the State Committee for Communication and Informatization of Ukraine, citizens subscribed in 1999 to 6,7 million copies of Ukrainian newspapers, 1.9 million copies of Ukrainian magazines, 14.3 million copies of local publications, 51,800 copies of newspapers and 170,300 copies of foreign magazines (mainly from the Russian Federation). The retail network sold 15.1 million copies of periodicals in 1999. These figures show that every adult citizen of Ukraine receives one copy of periodicals through subscription and the retailers system per annum. In addition, judging from sociological studies, 11% of Kyiv’s adult population does not read any periodicals at all. The situation is even worse for the rest of the population living in distant settlements.

During the Parliamentary hearings “Information Policy in Ukraine: Current State and Prospects” held in May 1999, the analysis of the current state of affairs in the press, broadcasting and TV proved that the negative tendencies in the information sphere of Ukraine has not only been improved, but gained a nature that is dangerous for the future of our country. Such a prediction is becoming true today. The 1999 catalogue of Ukrainian periodicals offered readers only 846 titles of publications, while the list of Russian Federation publications included 1,995 titles. The situation is truly paradoxical: 7 copies of publications in the native language per 100 Ukrainians, while 100 Russians read 54 publications in their native language. In addition, the newspapers Argumenty i Fakty. Ukraina (Arguments and Facts. Ukraine), Komsomolskaya pravda. Ukraina, Trud. Ukraina (Labor. Ukraine) and Izvestia. Ukraina alone have a total of 807,500 copies to date. According to the Book Chamber of Ukraine, the daily average one-time circulation of Russian-language newspapers that are actually printed in Ukraine amounts to 39,500 copies, while the daily average one-time circulation of Ukrainian-language newspapers comes only to 10,800 copies. Such a state of affairs in the printed media causes anxiety of the broad public and deserves special attention and remedies within the shortest possible time.

As for their earmarked purpose, first and second place is held by general political and information publications – 22% each; publications focusing on advertising hold third place – 15%. The rest of the publications are arranged as follows: leisure – 5.8%; production and practical – 4.7%; official – 3.9%; religious and scientific – 3.7%. Only 3.2% of publications are intended for children and youth, while 2.6% for educational purposes, followed by publications on the economy, business, literature and fiction, reference, sports, medicine, law, art, ecology, etc.

As to the language in the press, the picture is as follows: 37.6% of publications are registered in the Ukrainian language; 21.8% in Russian; 16.7% are registered as bilingual (Ukrainian and Russian); 20% in two languages separately (Russian and Ukrainian); and 3.8% of periodicals are registered in other languages.

The cited data show that to date there exists an extensive network of registered periodicals lending material form to the opportunity for citizens to express their opinions and views as well as to satisfy their information requirements.

As to the audio-visual mass media, 900 TV and radio stations are broadcasting in Ukraine nationwide. 8.5 million subscribers (natural persons) subscribe to the wired broadcasting system. In addition, Ukraine started creating and expanding the Internet network. According to JSC Ukrtelecom, the number of subscribers as of January 1, 2000 totaled 118 dedicated input users and 1,567 switched input users. Internet access is provided by 19 regional offices of Ukrtelecom. Experts estimate that the number of Uanet users today totals 150,000-200,000 and increase by 400% annually, while the total number of PCs amounts to 700,000- 900,000. But the Ukrainian Internet system is 6-10 times smaller than the Russian one and lags far behind the systems in Poland, Slovakia, and the Czech Republic, to say nothing about the network of developed Western countries.

The Internet, as any other mass media, enables to exercise the right to free selection, storage, use and dissemination of information. Internet offers information on any topic – from medicine to science and engineering. You can find in Internet in-depth material on all types of arts, a large quantity of useful information for students and schoolchildren, data for job-hunters, information on leisure, sports and different goods. The computers incorporated into the Internet global international network practically provide an unlimited opportunity for free access to the information accumulated by mankind, regardless of distance and storage place.

The Commissioner for Human Rights believes that the state has to facilitate the rapid development of Internet in Ukraine as much as possible. Otherwise the country will lag behind in the use of high information technologies.

Among the reasons that hamper the development of Internet in Ukraine and hence the access of Ukrainian citizens to information are the following:

§ technical – the lack of high-quality external communication links or poor quality of phone lines;

§ economic – poor solvency of people (not everybody can afford buying a PC);

§ financial – high charges for Internet services.

The Commissioner is of the opinion that this state-of-the-art tool can be used both for exercising human rights and, unfortunately, for their violation. One should take into consideration the unfavorable experience of the countries where the Internet has been used for quite a long time and in spite of everything brings certain negative results.

Internet suffers from the same problems as other mass media, e.g. newspapers, radio and TV: dissemination of confidential information or intentionally distorted information that impairs the honor and dignity of a citizen. The outburst of Internet pornography causes great anxiety. Yet another negative feature is its attractiveness for advertising of trafficking in women. Following is an example of an Internet advert: "Dear ladies, if you wish to find a life partner abroad, please complete the questionnaire in our database at no charge All expenses (visas, tickets costs, etc.) will be covered by the men".

Such announcements on job vacancies or marriage proposals in the Internet are galore. In the majority of cases it is evident what is behind the proposals. Judging from the experience of developed countries, the number of registered cases of fraud via Internet has increased dozens of times lately.

The Commissioner believes that these problems should be taken into consideration when drafting the respective Law On Internet, and there is no doubt that it must be adopted, first and foremost to protect human rights.

At the same time the legislative support of Internet, for the purpose of protecting human rights included, should have a limit that must not be overstepped lest it violates the right of speech and free access to information. This is true, in particular, with regard to the draft Law On Information Security and Information Sovereignty currently under consideration in Parliament.

Although the audiovisual mass media account for a little over 11% of the total amount of objects for information dissemination, their coverage of audiences and power of influence is much larger than the periodical press.

Situation in Ukraine’s book-publishing. Ten years ago 170 million copies of books were published in the country, while today it is only 22 million copies, i.e. eight times less. The Ukrainsky Pysmennyk (Ukrainian Writer) Publishing House put out ten times less books than in 1989. Books for children and youth have also reduced in number.

In the period from 1996 to 1999 Russian books gradually forced Ukrainian publishers out of all sectors of the Ukrainian book market and occupied a dominating position in it, expect for one area – textbooks for secondary schools. In the summer of 1999 the Ministry of Education granted to several Moscow publishers its signature stamp and right to publish textbooks at their own expense. In consequence, the dominance of foreign books in this sector of the Ukrainian book market is just a question of time.

Among the factors of the book-printing crisis are the drastic reduction of the number of books printed, increase in the price for paper and printing services, and the population’s worsened purchasing capacity. Ukraine has now about 150 actually operating low-capacity publishing houses. In 1999 their combined output was less than, say, Moscow’s AST Publishers, which in the year 2000 printed 21 books in the Ukrainian language.

From 1996 to 1999 the state cut down budgetary funding for printing secondary schools textbooks. The following example is, perhaps, the most revealing in this respect. While in the period from 1986 to 1990 budget-funded annual publication of textbooks by the printing facilities of the Ministry of Education ranged from 40 to 46 million copies, in 1997-1999 publishing houses of all forms of ownership produced about 28 million copies, i.e. only a half of the annual requirement in textbooks.

Several years ago an average family subscribed to three-four publications, while today the rate is only 0.71. At that time 3-4 books were published per capita, now one per two persons. Libraries that always used to be one of the main sources of information scarcely obtain new literature and periodicals today.

The situation in the market in 1999 was as follows:

§ 90-92% of the Ukrainian book market is dominated by inexpensive Russian books. Consequently, about 100 million "book" dollars are repatriated from Ukraine to Russia annually;

§ Russian publishers started making active inroads into the education literature sector that previously was the exclusive province of national producers;

§ the publishing program of school textbooks has been practically cut down (the publishing houses have no funds to call their own, while the state is incapable to finance the program from the budget);

§ most of the books printed in 1999 were in the range of 2,000 to 3,000 copies, which means that once a book is issued it becomes a bibliographic rarity;

§ only one out of four persons could afford buying a book in 1999. The other three, even when they had the money, could not buy what they wanted. (Figure 5.1).

Figure 5.1. Number of books printed per capita in Ukraine

The real state of the economy and the unwillingness of managers of appropriate government structures to objectively assess the future consequences of the loss of the domestic printing industry does not leave any hope that measures will be taken in the year 2000 to improve the situation for the better.

The tendencies and pace of decline of Ukrainian national book publishing during the past few years show that at the threshold of the third millennium the Ukrainian book proper is on the brink of extinction. This means that citizens lose the opportunity to exercise their right to information they gain from this source.

In the opinion of the Commissioner such a development in Ukraine’s book publishing denies citizens their constitutional rights to the free development of their personality and education in violation of articles 23 and 53 of the Ukrainian Constitution as well as their right to information (Article 34.)

The Ukrainian Constitution stresses that the main duty of the state is to affirm and ensure human rights. Regrettably, the state, as represented by bodies of authority, frequently shirks its obligations in protecting the people's rights to free thought and speech. Consequently, such traditionally subsidized spheres of cultural life as book publishing, filmmaking, fiction, art, theatre, and the like have been left without proper state support. The literary language is on the decline, while the information environment of numerous areas of knowledge and even the state language is shrinking drastically. People are being increasingly deprived of the opportunity to legally express their thoughts and viewpoints.

It is common knowledge that the mass media and their employees, the journalists, play an important role in ensuring the citizens’ right to freedom of opinion and speech as well as information. However, chasing as they do after sensations or plying their trade under the pressure of state bodies, different political or other forces, or else performing paid orders, some mass media and journalists do not always impart objective information about important events in society and the activity of bodies of state authority and local self-government as well as other subjects of the public process. Quite often they shape a negative public opinion about the participants in the current societal processes and public institutions.

This has been vividly demonstrated in how the mass media shaped a negative image of Parliament and the People’s Deputies during the past few years, especially in 1998 and 1999. Even the cursory analysis of the periodicals distributed nationwide and locally shows that the volume and quantity of information about the Parliament was much less than the information about the activity of the President, Cabinet of Ministers and other bodies of the executive. In case when it is not official information, but a publication or TV program hosted by an author, the comments about Parliament as a whole and its structural subdivisions, factions and individual People’s Deputies are mostly negative.

So due to the efforts of the mass media the public at large has assumed a rather critical attitude to the activity of Parliament. The biased restriction of information about the activity of Parliament, compounded by its distorted presentation, has obviously contributed to the increase in the people’s critical appreciation of what the Parliament does. According to the results of a survey conducted in 1999 by the Institute of Social and Political Psychology under the Academy of Medical Sciences, 44.4% of respondents were convinced that the activity of the Parliament did not promote any economic and political development of Ukraine. According to the Institute of Politics, 48% citizens do not trust the Parliament as far protection of their rights and freedom is concerned.

Previously, Ukrainian citizens could watch on their TVs The Rostrum of the Parliament Factions and the Parliamentary Herald programs and follow individual sessions of Parliament. On May 12, 1999, when the parliamentary hearings "Information Policy in Ukraine: Current Status and Prospects" were in progress, the broadcasting of the Parliament session was terminated without warning, justification and adequate information compensation and the TV cameras of the National TV Company of Ukraine were withdrawn from the session hall.

On August 24 that same year, the Chairman of the Parliament was denied the opportunity to congratulate on national TV the people of Ukraine on the Day of Independence, although the congratulation was recorded beforehand. This was not only a gross violation of the citizens' right to information, but also aggravated the contention between the two branches of power.

The suppression of freedom of thought and speech is still going on. Deprived of access to TV and radio broadcasts, Parliament concluded a respective agreement on highlighting its activity with the STB TV Company. Immediately afterward the company was subjected to numerous inspections. They became so intensive and aggressive that the International Committee for the Protection of Journalists requested from the President that he comply with the rights of the mass media: "We call upon you to apply all your authority so as to terminate the politically motivated abuse by state officials of the laws and regulations on the mass media. We call upon you to guarantee the internationally recognized right of the STB Company and all journalists of Ukraine to work without the interference of the state." (Den [The Day] newspaper, September 25, 1999)

Ukrainian legislation prohibits censorship (Article 15 of the Ukrainian Constitution). Citizens have the right to express openly their opinions in public places, at meetings, rallies, demonstrations, in the newspapers, on TV and radio channels. Over 80% of the Ukrainian mass media has been denationalized. The majority of them were founded by commercial structures, parties, joint stock companies, the workforce of enterprises, and NGOs, which promotes the exercise of the constitutional right to freedom of speech, thought and free expression of views and opinions.

Protection of human rights to freedom of opinion, free expression of views and convictions, collection, storage, use and dissemination of information is among the priority areas of the Commissioner’s activity.

The Commissioner’s Office carries out its work in the best transparent way providing free access for the mass media and citizens of Ukraine. Due to this fact, it was for the first time in the history of Ukraine that journalists visited together with the Commissioner the investigation ward of the Security Service, the temporary detention ward of the Ministry of the Interior Chief Directorate in Kyiv, and the cells of Lukianivka prison for convicts sentenced to capital punishment. The journalists also took part in a comprehensive inspection of compliance with human rights and freedoms in Chernihiv oblast and Luhansk oblast; together with the Commissioner and with the support of the UNHCR representative office they implemented a project to assist orphans who suffered from a flood in Transcarpathia oblast. The Commissioner holds for the mass media regular press conferences and "round-table" discussions on different issues of protection of human rights and freedoms. The results of the Commissioner’s activity in 1998 and 1999 were highlighted in 500 articles, appearances, interviews and press-conference releases.

To promote the legal awareness of the population, the Commissioner hosted several programs on the Pravo (Law) TV channel, informing in popular form about the new institution and about the appeals people addressed to the Commissioner and European Court on Human Rights. With the support of the Council of Europe a special Bulletin of the Ukrainian Parliament Commissioner for Human Rights was issued in Ukrainian and English. It featured the Universal Declaration of Human Rights, the European Convention on Protection of Human Rights and Freedoms, the Law On the Ukrainian Parliament Commissioner for Human Rights, and a reader’s “pro memoria” on the rules of filing appeals with the European Court on Human Rights. The bulletin was distributed among People’s Deputies, members of government, court officers, libraries, educational establishments, human rights organizations, law enforcement bodies, and penal institutions.

It should be mentioned that in many respects such a new institution as the Commissioner’s Office evolved due to the benevolent and concerned support of the printed and electronic mass media. Judging from the responses of our citizens, many of them have retained in their memory the first publications that described the aims and purposes and the first steps of the new institution, as, for example, "A Human Rights Activist Represents the Interests of a Person" (Uriadovy kurier [Government Courier], August 29, 1998), "A Human Rights Activist is Always in Opposition to the Authorities" (Holos Ukrainy, September 26, 1998), "A Commissioner for Human Rights who is Liked by the Authorities is a Bad Commissioner" (Robitnycha hazeta [Workers’ Gazette], October 28, 1998), "The Protection of the Rights of a Definite Person Takes Priority Over the Protection of the Rights of the State" (Visti [News], December 10, 1998), "I Shall do My Best to Make the Authorities Execute the Laws" (Den [The Day], December 1, 1998), "To Fight for Justice is Always Difficult " (Ya, Ty, My (I, You, We], No.12, 1998), "To be Guided by a Sense of Justice and Personal Conscience " (Liudyna i vlada [Man and Authority], January 1, 1999), "How Long Have I been Waiting for You" (Nezavisimost [Independence], January, 29, 1999).

The Commissioner for Human Rights was active in informing the world community about the consolidation of the new human rights institution in Ukraine and on compliance with the rights and freedoms in this country. The Commissioner's interviews and articles were published in Poland’s Rzecz Pospolita and the Polish-language Dziennik Kijowski newspapers; the Russian newspapers Izvestia, Trud, Komsomolskaya Pravda, Parlamentskaya Pravda, Argumenty i Fakty; the English-language newspaper Kyiv Post; Switzerland’s Zьricher Zeitung; Xinhua News Agency and the All-Chinese China Daily; US, French, Danish newspapers, and others.

The analysis of compliance with and protection of human rights in Ukraine carried out by the Commissioner proves that the free expression of opinions and convictions is becoming more and more restricted. The mass media come under the control and are managed by state bodies or financial/political groups, and therefore the citizens’ right to accurate information is curtailed. To this end growing pressure is brought to bear on journalists by political, economic and administrative methods. Journalists are obstructed in the performance of their professional duties, which frequently results in gross violations of human rights to freedom of speech and information.

The status of freedom of speech in Ukraine was brilliantly explained by MP I.Bokyi in his speech during the parliamentary hearings "Information Policy in Ukraine: Current Status and Prospects" held in May 1999: "I think that all of us are united by an understanding that there is no other area of public life, except for information, which is so obscured by clouds of craftiness, casuistry, and outright speculations. When we speak about freedom of speech, we call to mind the public prosecutor, the police, taxation administration, control and auditing directorate, and the directorate for organized crime control. An interesting set, isn't it? Newspapers that do not violate the law, live in concord with it, but exercise the right to freedom of speech granted them by the law are subjected to all the force of the punitive and fiscal apparatus set upon them by the executive power in order to intimidate journalists or else find a trifling pretext to destroy the publication.”

Judicial practice shows that courts frequently turn from bodies of justice into tools of fierce pressure on the freedom of speech. Igor Lubchenko, Chairman of the Union of Journalists of Ukraine, informed the Commissioner that at the present time five to six courts in the country consider every day lawsuits on "protection of honor and dignity" filed by officials against the mass media. According to the Union of Journalists and the Parliamentary Committee for Freedom of Speech and Information, 2,258 lawsuits were brought against the mass media in 1999 with UAH 90 billion in claims, an amount that exceeds that State Budget threefold. Within the three and a half years of its existence the Den (The Day) newspaper lived through more than 45 inspections and 26 lawsuits worth UAH 3.5 million. By using as a cover the claim for "moral damages" which is interpreted in the Ukrainian laws rather vaguely, offended officials, businessmen and some politicians demand from the newspapers and journalists compensations worth millions of hryvnias for several lines of published information.

In a special statement addressed to the Ministry of Justice and the Ministry of Information in June 1998 the international human rights organization Reporters Without Borders protested against the absurd fines applied to the Ukrainian mass media. The appeal cited facts when Ukrainian publications were brought to account for "slander" and insult of honor and dignity. Since the law does not restrict the amount of the fine, the latter has reached a total amount of UAH 3.5 million.

The powers that be are well aware that he who owns such a mighty instrument for shaping public opinion as the mass media possesses power. That is why a cruel and unremitting struggle for the dominance over information and the information dissemination media is going on. But some structures and persons who are not interested in publicizing objective information commit gross violations of the human rights to freedom of thought and speech.

Lately, the trade of a journalist in our country has become one of the most dangerous. Vadym Boyko, TV journalist and MP, knew who of the state officials and in what form were transferring large sums of money. He perished under strange circumstances, while his file of documents disappeared without a trace. When the Vechirnia Vinnytsa (Evening Vinnytsia) newspaper started publishing articles about the machinations of local officials, it was "suspended." The editor perished under strange circumstances. Igor Hrushetsky, a correspondent from Cherkassy, had information about the shady dealings of the director of the Rotor Works and bragged about it indiscreetly. His story did not appear in print, because he perished.

Olexandr Motrenko, host of the Subbotniy Express (Saturday Express) TV program (Simferopol), had in his possession confidential documents about the local mafia. Three strangers – one of them in police uniform – approached him in the street in broad daylight, demanding that he surrendered the documents. When he refused, he was killed right on the spot.

When journalists perish in peacetime, it is a sign that society is corrupt. In the period from 1998 to 2000 the following crimes against journalists were committed: Boris Derevianko, editor-in-chief of the Vechernyaya Odessa (Evening Odessa) newspaper, was murdered. Ivan Spodarenko, editor-in-chief of the Silski Visti (Rural News) newspaper, Oleg Lyashko, editor-in-chief of the Polityka (Politics) newspaper, and Volodymyr Skachko, TV journalist, were beaten up unmercifully. Irina Pogorelova and Svetlana Siniakova, prominent Ukrainian journalists, were beaten and robbed. Many employees of local and regional publications were subjected to physical violence. The editorial offices of Pidtext (Understatement) magazine (Kyiv) and Informatsiyny Bulletin (Information Bulletin) newspaper (Kremenchuk) were smashed up. Persecution was in store for the journalists of the Horyzont (Horizon) TV Company (Pervomaisk, Kharkiv oblast) when they disclosed facts of corruption and abuse of power by town officials.

In a statement on violations of the citizens’ constitutional rights of October 4, 1999, the Commissioner for Human Rights stressed: "Contractual murders, persecution for political motives, and encroachment on the freedom of speech endanger not only human rights and freedom, but also democracy and constitutionalism in Ukraine".

The Commissioner’s monitoring of compliance with human rights in Ukraine shows that in their struggle against freedom of thought and speech, alternative publications, individual editors and journalists, the bodies of authority and their officials apply ever more frequently such insidious "legal" forms of pressure as targeted inspections by taxation, financial and law-enforcement bodies, anti-fire and sanitary-epidemiological organizations, and, specifically, lawsuits on the protection of the officials’ honor, dignity and business reputation. It is a peculiar "state racket" in the form of targeted inspections of independent publications and companies.

The editors of the newspapers Pravda Ukrainy, Polityka (Politics), Opposytsia (Opposition), Finansova Ukraina (Financial Ukraine), Dnipropetrovska Pravda Poltavska Dumka (Poltava Thought), Kirovogradska Pravda, Druzhkovsky Rabochyi (Druzhkivka Worker) were among the much commented on victims of intimidation by bodies of state authority and local self-administration.

The numerous facts of violations made the Parliamentary Committee for Freedom of Speech and Information issue a special statement on March 16, 1999, stressing that the offensive against freedom of speech was launched against those mass media "whose viewpoint was different from the viewpoint and actions of the executive bodies. Any criticism against these authorities or their high officers caused unprecedented resistance." To curb the editors of some independent opposition publications, the officials even initiated doubtful criminal proceedings.

The reprisal against the Pravda Ukrainy newspaper is a typical example. At first, the Ministry of Information prohibited printing the newspaper under the pretext that its foundation documents had been drawn up incorrectly. Then the authorities brought pressure to bear on the editorial board. Editor-in-chief Olexandr Horobets was arrested for allegedly raping a subordinate. This proceeding as many others like it ended in failure. The imprisoned editor-in-chief was finally released after eight months, without so much as an explanation to the readers, radio and TV audiences who, incidentally, were immediately informed about Mr.Horobets’ arrest, but not his release. The assumption suggests itself: those who were disturbed by the journalists’ diverging opinions simply isolated the newspaper from the public during the election campaign.

The printing of the Polityka newspaper was terminated allegedly for disclosure of a state secret. But shortly afterward, O.Lyashko, editor-in-chief of Polityka, was arrested. When Serhiy Stepanenko, the manager of the Narodna Armiya (People’s Army) Printing House under the Ministry of Defense, agreed to publish two issues of the disgraced newspaper, four colonels from the military prosecutor's office visited him and started demanding that he resign. Later, the editor-in-chief was openly and mercilessly beaten, but the court and law enforcement bodies pretended that nothing serious happened.

The cases were closed, because they fell to pieces, but irreparable damage was inflicted on the employees, publications, and freedom of speech in general. The managers of recalcitrant publications were kept in pretrial jails for months, experiencing humiliation and suffering. Such arbitrariness with regard to both people and the law will not end until its organizers and executors will be brought to real account for what they do.

The lawsuit by the former Ministry of Press and Information (ex-minister Z.Kulyk) against the Oppozytsia newspaper was unprecedented in Ukrainian practice.

According to the State Committee for Information Policy, Vinnytsia city mayor D.Dvorkis claimed UAH 500,000 in compensation in a lawsuit against the Podillia newspaper.

The Kozatsky Rid (Cossack Kin) newspaper of the Smila regional organization of the People’s Movement of Ukraine (Rukh) in Cherkassy is out of circulation for two years already. In addition, its editorial board was fined for "inflicting moral damage" on the ex-mayor O.Kotkalo.

The Zolotonosha town mayor O.Korpan brought an action against the editorial board of the Visnyk Zolotonishchyny (Zolotonova District New) newspaper, because it published an appeal by the district council of war and labor veterans with information about the mayor’s commercial activity.

In 1998 a judge of Sloviansk passed a ruling on depriving a reporter of the local TOR TV Company of the right to perform his professional duties – and neither the state nor the courts shuddered at such an unprecedented outrage upon freedom of speech and the ban on engaging in a profession.

The Vseukrainskiye Vedomosti (All-Ukraine Herald) newspaper terminated its activity after an arbitration court allowed the claim of Soccer Club Dynamo Kyiv for undermining its business reputation following a published information about the possible sale of one of Dynamo’s most popular players to a foreign soccer club. The court ruled UAH 3.5 million in compensation. Vseukrainskiye Vedomosti ceased to exist, although the soccer player was later sold to the same club mentioned in the article for a higher price. In this manner the newspaper was crushed for writing the truth.

One of the independent newspapers Kiyevskiye vedomosti (Kiev Herald) was prescribed by court to pay the claimant – Minister of the Interior Y. Kravchenko – UAH 9 million in moral damages for writing about the minister using prisoners' labor in his own interests. It actually led to a double punishment, because it meant total bankruptcy and the newspaper's closure – a reprisal visited upon the newspaper owing to the inadequate mechanisms of operative legislation. Incidentally, the minister's claim was withdrawn immediately after the newspaper's owners were replaced.

As practice shows, operative legislation provides the opponents of freedom of thought and speech with a large arsenal for restricting human rights. The Trade Union Federation (Chairman O.Stoyan) demonstrated one such example not so long ago. In 1999 the TUF terminated the circulation of the Profspilkova Gazeta (Trade Union Gazette) newspaper and the Profspilky Ukrainy (Trade Unions of Ukraine) magazine. In this way it deprived millions of trade-union members the opportunity to gain reliable information about the trade unions and the activity of its management, to discuss through their mass media urgent problems and to exercise public control over the activity of the trade union management.

Interestingly, the newspaper and magazine were closed not because of financial problems (quite an understandable circumstance), but because the TUF managers were convinced that the publications did not comply with the founders' goals. In real fact, the critical articles about the activity of the TUF were the reasons for the closure. The Pechersk district court recognized as unjustified the resolution of the Council Presidium of the TUF of March 23, 1999 inasmuch as it concerned the liquidation of the editorial board of the Profspilkova Gazeta and the termination of its circulation, and ruled that the TUF revoke its decision.

The permanent confrontation between the branches of power in their struggle for TV and radio broadcasting frequently results in violations of the human right to freedom of speech. TV and radio companies with independent opinions are harassed by tax inspections, severe fines and forced out of business. Putting it otherwise, the authorities use allegedly "lawful" economic mechanisms of arm-twisting, thereby launching an all-out offensive against freedom of thought, opinion and viewpoint. As a result, the popular TV programs Pislyamova (Afterword) , Zoloti Vorota (Golden Gate), Hart (Fortitude) and Gravis, to name but a few, and even some TV companies disappeared from the air. On July 26, 1999 the operation of four non-government Crimean TV companies was terminated in Simferopol, Djankoi and Kerch. The official explanation was that the Radio-TV Center that transmitted their programs lacked permission from the State Committee for Frequency Supervision to use the TV channels. At the same time the State TV Company that uses the Center’s services continued working without any problems.

Under the pretext of "violations" allegedly committed by a state radio transmission center the independent TV companies were thus silenced during election time, although they had broadcasting licenses issued them by the National Council for TV and Radio Broadcasting.

In this manner the bodies of executive power demonstrated their information policy that does not accept pluralism of opinions, harbors fear of true and alternative viewpoints, and is unprepared for open nationwide discussions, collective search of truth, criticism and self-criticism, which always have been the attributes of an open democratic society and the motive force of social progress.

A striking example of such an attitude was the dismissal within one day of the First Deputy Prime Minister V.Kuratchenko, who during a session of the Cabinet of Ministers dared to offer proposals on improving the course of reforms.

Small wonder Parliament decided on June 2, 1999 to initiate an investigation into the persecution of the opposition mass media by the State Tax Administration, the Attorney General's Office and bodies of the executive.

Citizens’ appeals to the Commissioner describe frequent cases of violations of the constitutional right to free collection and storage of information. Some officials conceal information for no justified reason. In consequence, it reaches consumers not in time or not at all. For example, in 1999 M.Radchenko, chairman of the Chernomorsk district state administration (Crimean Autonomous Republic), prohibited its officials to provide any information to the Chernomorskaya zaria (Chornomorsk Star) newspaper.

In 1998 the Ukraina moloda (Young Ukraine) and Holos Ukrainy newspapers wrote about the arbitrariness of Anatoliy Bondarchuk, head of the Kalyniv district state administration, Vinnytsia oblast. When the journalists from the oblast and national mass media arrived to attend the district rada session, they were prohibited from entering the session hall.

That same year officers of the tax militia detained for identification a press photographer of the Volyn, the leading newspaper in Volyn oblast, for taking pictures of the tax administration premises located on the central avenue of the city.

On September 6, 1999 V.Sheludko, chairman of the Tsuriupinsk district state administration, Kherson oblast, issued the following written instruction: "To T. Sakharuk, Director of the Post Office. The Tsuryupinsk district state administration addresses you with a repeated demand to cease the delivery of such newspapers as Tovarysh [Comrade], Komunist (Communist), Selyanska Pravda [Peasants’ Truth] and Spravedlyvist [Justice] to the district state administration, its departments and directorates, since the district administration did not subscribe to them."

Widespread are cases when bodies of state authority deny accreditation to journalists. In this way they violate the right to free receipt of information from bodies of authority. A similar practice is used by both the bodies of the executive and Parliament. In most cases it is done under the pretext that these mass media do not present information objectively, which more often means that it diverges from what the interested party would like it to be. And this happens at a time when laws are in place to govern the issues of civil liability for dissemination of inaccurate information

The right to freely collect, store, use and disseminate information is also violated when courts prohibit journalists from making audio and video recordings during open court sessions in disregard of Article 129 of the Ukrainian Constitution stipulating the independence of judges who have to obey only the law. For this reason it is necessary to introduce amendments to the Civil Code to regulate the legal relations between the courts and the mass media journalists inasmuch as they concern such recordings.

The struggle against independent publications and freedom of speech in Ukraine has reached such proportions that the Parliamentary Assembly of the Council Europe, the representative office of the OSCE in Ukraine and the US State Department expressed concern about the violation of the Ukrainian citizens' rights to freedom of thought and speech.

Officials of bodies of the executive have become so keen in their struggle against alternative and simply independent publications, pluralism of thought and viewpoints, that they even let down the country’s President The US Committee for Protection of Journalists nominated him as the sixth among the ten "enemies of the press," i.e. enemies of the right to free expression of opinions, views and convictions.

In June 1999 Parliament adopted an appeal to the parliaments and governments of European countries with the request to protect the freedom of speech in Ukraine. The Appeal stated that in this important area of public relations there reigns not the rule of law, but relentless arbitrariness; bodies of the executive in this country try to force freedom of speech on its knees, suppressing the independent and simply alternative press. The Assembly of the Council of Europe censured Ukraine and put forth three equivalent claims: local self-government, freedom of speech, and the death penalty.

However, this did not produce any significant effect on compliance with the human right to freedom of speech in Ukraine. The Commissioner kept receiving appeals from the mass media complaining against gross violations of their constitutional rights to freely collect, store, use and disseminate information.

In response to the violations of the constitutional rights to freedom of thought and speech and immunity of the former MP K.Lyashchenko, editor of the Nikopolskiye izvestiya (Nikopol News) newspaper and the Channel-5 TV Studio, the Commissioner addressed a petition to Attorney General M.Potebenko.

The appeal stated that after K.Lyashchenko announced his support of presidential candidate O.Moroz, he was subjected to political persecution. His activity was examined hundreds of times, he was required to be present at court sessions, several criminal proceedings were initiated, the premises where he and his team worked were sealed. On November 4, 1999 seven militia officers, who specially arrived from Dnipropetrovsk, burst into the premises of the Channel-5 Studio and seized a part of the TV equipment for no valid reason. The chief of the operational search group of the State Telecommunication Inspectorate drew up two statements on administrative offenses under Item 1, Article 146 of the Administrative Code and forwarded them to the Nikopol city court. On November 5 the studio’s TV transmitter was disconnected from power supply. On November 10 unknown persons broke the locks and stole a TV transmitter (worth UAH 1,370), radio transmitter (UAH 1,616), and damaged the service lines. On November 11 the local printing house was prohibited from printing the Nikopolskiye izvestia. On November 16 K.Lyashchenko was detained by a district militia inspector and brought to the city court. After K.Lyashchenko won the case, his property was damaged for the second time. On February 13 two men tracked him down and beat him with metal rods, causing concussion of the brain, deep head wounds, and other injuries. The Commissioner for Human Rights requested the Attorney General's Office to conduct an additional examination into the violations of the rights of the former MP and editor of Nikopolskiye izvestia and the Channel-5 TV Studio.

According to the Publicity Protection Foundation, 70% of the protection-of-honor-and-dignity cases are openly unfair and focus primarily on curbing the press through financial suppression. This is made possible because of the absence of a legally prescribed state duty for filing claims. Hence the huge compensation claims lodged against journalists and editorial boards. Until this matter is resolved legislatively, the claimants will keep making short work of newspapers, magazines, and TV/radio companies and improve their suppression techniques.

At the present time practically every publication, editor or journalist, who assumes an oppositional or simply independent posture and writes analytical or critical articles that are not in line with the officials' viewpoints, may be accused of impairing the claimants' honor and dignity and inflicting moral damage on them. This fact shows that Article 34 of the Ukrainian Constitution is violated in this country.

Relying on the cited facts, the Commissioner ascertains that court cases related to the mass media are unambiguously focused more on the priority of protecting the officials' reputation rather than protecting freedom of speech and thought. Such a practice places the mass media on an unequal footing before the law as compared to the authorities. It also provokes the latter to resort to pretrial discrimination in conflict with the laws On Information, On the Printed Mass Media (Press) in Ukraine, On State Support of Mass Media and Social Protection of Journalists. Under the influence of these factors journalists cannot perform their professional duties in full, while the Ukrainian press, TV and radio cannot exercise an important social function that is typical for the mass media in every democratic country. After all, they are guaranteed the right to freedom of thought and speech, free dissemination and use of information under Article 34 of the Ukrainian Constitution and the right to judicial protection under Article 55.

Such practice is also dangerous because during court hearings of claims judges are subjected to administrative pressure and intimidation. In consequence, the mass media lose almost all cases in court. Once a court is unprotected and becomes and obedient tool in somebody's hands, it ceases to perform its functions properly. Moreover, a court thus violates the Convention for the Protection of Human Rights and Fundamental Freedoms. The European Court on Human Rights recognizes the important role of the press in a democratic state, cautioning that the restriction of its freedom may result in violations of citizens' rights to exercise control over their government, and this right carries more weight than the right of individual government officials to inviolability of their personal red-tape image or protection against unfair criticism.

The European Court believes that state officials and politicians have sufficient opportunities to influence the mass media and inform the public about their point of view. Therefore, in the majority of conflicts between them and the mass media the European Court takes the side of the latter. And it is a generally recognized practice of a civilized society.

It should be remembered that since Ukraine acceded to the Convention for the Protection of Human Rights and Fundamental Freedoms all of Ukraine’s structures of authority are required to abide by the rules of this Convention; the decisions of the European Court on Human Rights have to be applied in judicial practice, because the precedent right of the European Court is an integral part of applying the 1950 Convention rules.

The Commissioner believes that in consequence of the information practice that has taken shape not only freedom of speech is endangered to date, but also the future of the country’s information sector, because it is common knowledge that without the exercise of the constitutional right to freedom of thought and speech it is impossible to exercise the following constitutional rights:

§ right to freedom of association in political parties and public organizations (Article 36);

§ right to participate in the administration of state affairs, in national and local referendums, to freely elect and be elected to bodies of state authority and local self-government (Article 38);

§ right to assemble peacefully, hold meetings, rallies, processions and demonstrations (Article 39);

§ right to freedom of literary, artistic, scientific and technical creativity (Article 54);

§ right to free development of one's personality (Article 23);

§ right to defense of one's life and health, the lives and health of other people against unlawful encroachments (Article 27);

§ right to freedom of personal philosophy and religion (Article 35) and several other fundamental constitutional rights.

The current attitude of the authorities to the mass media contributed to the emergence of an information environment dominated by periodicals and companies referred to as the "yellow press." As a rule, they evade tackling urgent sociopolitical issues and replicate mainly primitive negative information about murder, slaughter, rape, arson and the like.

Bodies of state authorities are not worried that such negative information destroys the peoples' mind, develops cruelty, creates a distorted international image of our people, and undermines the prestige of our state. For them the prime goal is to deny objective critical analysis of sore social and political problems of today.

More often than not the TV, radio and newspapers foist on our society alien traditions, morality and tastes; they corrupt young people by propaganda of violence, erotica, pornography; deny Ukrainian citizens national information products, and force domestic producers out of the information market. In consequence, domestic films, Ukrainian-language entertaining programs as well as information on national customs, traditions and culture have been nearly ousted from the information environment. The residents of regions bordering on Russia, Poland, Hungary and Romania mostly watch the TV programs of their neighbors.

All these facts taken together restrict the rights of Ukrainian citizens to freedom of thought and speech, causing irreparable damage to the national interests and jeopardizing national security.

In protecting its information interests, every state has to take care of its information security. It is also needed for strengthening Ukraine’s statehood. A rush for cheap information flooded newspapers, TV and radio programs with dissoluteness, cynicism, disdain for our historical and cultural heritage, and the traditions of many generations.

The Commissioner has been receiving many letters with requests to protect human rights against dirty advertisements and articles publicizing violence, contempt of personality, the cult of money and sex, and pornography. All this has a negative impact primarily on children and young people. A study conducted by experts of the Ukrainian Economic Research Center concluded that of the 2,380 news items printed within one month in five newspapers alone (Fakty, Kiyevskie vedomosti, Stolichnaya gazeta [Capital City’s Gazette], Nezavisimost, and Ukraina moloda) 76 reported on murders, 212 on rapes, 53 on suicides, cases of violence, theft and assault, 231 on hooliganism, 129 on accidents, and 106 on other publicly negative incidents. This accounted for 35% of the studied information.

What public good was gained by the articles about Taras Shevchenko, Lesia Ukrainka, and Ivan Franko published in Kiyevskiye vedomosti, if they insulted the national feelings of millions of Ukrainians? Who stood behind them, who had such an urgent need to exercise his right to freedom of thought and speech to actually vilify what is held sacred by the nation? And how can this lack of spiritual culture be stopped from expanding irresistibly?

Individual mass media employees understand freedom of speech as all-round permissiveness and irresponsibility. Correspondents and editors sometimes publicize materials written on order. Such a horrible word combination as "information kill" has taken root in journalistic jargon, meaning that any official or claimant for an office can be "picked off" by discreditable materials collected on a contractual basis. To this end a lot of money is expended, along with promised attractively economic and political perks and privileges.

Item 3, Article 19 of the International Covenant on Civil and Political Rights places mass media employees under great responsibility and obligation in their exercise of the right to freedom of speech and imposes restrictions on its exercise for the sake of preserving peace, security and human culture.

The right to freedom of speech and free dissemination of information is a great achievement of Ukraine in its process of establishing the democratic principles of society, as reflected in its Constitution. At the same time Article 34 of the Constitution guarantees the right and provides for certain restrictions to prevent disclosure of information received confidentially. This constitutional provision was further developed in the Law On the Ukrainian Parliament Commissioner for Human Rights.

The Commissioner’s Office considers the control over compliance with human rights to confidential information to be a top-priority area of its activity. Today when people use high technologies, computer and telecommunication facilities, and new bases for transboundary transmission of information, the opportunity to collect and disseminate information about any person may be used not only by state officials or intelligence service officers, but also by criminal structures for their mercenary ends. The problem of protecting confidential information has become extremely sensitive and gained transnational proportions. The world is becoming ever more stunned by facts of illegal collection of information about individuals without their knowledge and its use for blackmailing, discrediting and reprisals against people.

Recently it became known that Ukraine’s investigation bodies found a computer file with information about MP V. Hetman. Most likely it was used for organizing an attempt upon his life. The Commissioner believes that Ukraine pays insufficient attention to the problem of protecting information about individuals. The provisions of Article 34 restricting the publication of information received confidentially have not been elaborated and secured legislatively. Little is done to align national legislation with international standards, in particular with the Convention For the Protection of Individuals with regard to Automatic Processing of Personal Data.

Adopted in 1981 by the Council of Europe, the Convention proceeds from the rationale that in the application of high technologies, computer and telecommunication facilities a person’s rights and interests can be violated due to the unauthorized use of information about the person to his detriment, thereby impairing natural and vital rights which are the basis of freedom, universal justice and peace. The said rights have to be protected by the force of law.

In 1999 the Commissioner for Human Rights, at the request of the State Committee for Communication and Information, participated in an experts’ review on and provided conclusions about and proposals to the draft Law On Protection of Personal Data. This draft law is of great sociopolitical importance for the state, speaking of the positive democratic changes in our society and its identification with the best legal achievements of mankind. It should be considered by Parliament as quickly as possible in order to govern by law the constitutional provisions on the right of each to confidential information about the person.

The Commissioner for Human Rights has to state that the exercise of the right to freedom of thought and speech as well as the right to freely collect, store, use and disseminate information is sometimes made impossible because of inadequate operative legislation and judicial practice.

Therefore, the Commissioner for Human Rights addressed a letter to the Chairman of the Supreme Court V.Boiko in support of holding a special sitting of the Supreme Court plenary session devoted to the improvement of judicial practice of considering disputes in the field of information. The state has to find a way to protect journalists possessing information that is dangerous to their lives, and citizens against the mass media’s encroachment on their honor and dignity. For this purpose the Commissioner for Human Rights believes that the following is necessary:

§ to set out legislatively the procedure by which courts would establish the amount of inflicted moral damages in information relations. This procedure should take into consideration in each specific case the territory where the incorrect information was disseminated, the time and purpose of spreading the information, and the amount and nature of the disseminated information, in consequence of which moral or material damages were inflicted on a definite person;

§ stipulate by law that once a court determines the size of moral damages, a state duty for considering the case in other instances should be paid in an amount established by law, with allowance for the size of moral damage compensation determined by the court. The implementation of this proposal will reduce the number of appeals for retrying cases and increase the number of amicable agreements;

§ set out a step-by-step procedure for considering such cases. As a first step it would be reasonable to check whether the disputed information is correct or false. Should the information be recognized as false the question of its disproof should be settled and the size of moral damages determined. Such a procedure would contribute to a larger number of amicable agreements after the first stage of court examinations.

The Commissioner for Human Rights believes that first of all it is necessary to amend operative laws on submitting mass-media registration documents. In particular, should a legal entity be among the co-founders, the relevant documents about them should also be required. It should be a binding condition to indicate the share of capital of the legal entity’s co-founders. In case when among the co-founder of the legal entity establishing the mass media there are other legal entities, information about them should be submitted for registration as well as the distribution of their capital’s share among them. The information on the founders of legal entities should be submitted until the actual distribution of capital among the mass media founders, indirect founders included, is determined. This information is needed to establish the actual share of foreign capital that controls the activity of the mass media registered in Ukraine.

Besides, it is necessary to make it a legislatively binding condition that once anyone commits investments to the mass media, that latter should within one week after receipt submit to respective registration bodies information about the size and source of the received investments and their distribution.

If such amendments are introduced to operative legislation, a very important issue of national security will be resolved – the protection of Ukraine’s information environment, especially during election campaigns. Under current legislation the mass media with more than 30% of foreign investments in their statutory fund has no right to take part in electioneering. This provision of the law is very easily circumvented today: as a rule, at first foreign natural persons and legal entities act as founders of resident legal entities in Ukraine, and afterward the residents become founders of the mass media. An examination of the share of foreign capital in such well-known TV companies as INTER, 1+1 and ICTV will show that they are under foreign control and influence the consciousness of our citizens. From the point of view of the protection of freedom of speech such a situation is already a problem related to national security and it cannot but cause alarm.

In view of what has been said above, the Commissioner for Human Rights believes that Ukrainian legislation has to provide additional grounds for terminating the activity of the mass media, if the share of their foreign capital exceeds the established rate.

From this it can be concluded that the very possibility of exercising freedom of thought and speech as well as the right to collect, store, use and disseminate information is in jeopardy. The principal violators of these rights are state institutions which create unsatisfactory conditions for the existence and operation of the mass media that are charged with the duty not only to inform the public about the activity of the bodies of state authority and their officials, but also about public control over compliance with human rights and freedoms by bodies of state authority and bodies of local self-government.

All this gives the reason to remind: he who is against the human right to freedom of thought and speech, is against Ukraine becoming a democratic and law-governed state. He who tries to restrict these rights, wants to deny Ukraine the achievement of this goal.

Translated by Anatole Bilenko

<<  Back

Home ^^