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Point of View
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 By Victoria Sumar
Today Vecherniy Kharkiv daily and Status quo online edition came out with a report that police officers had suffered bodily injuries as a result of a search operation at the apartment of Vyacheslav Ismaylov.
Actually, the both editions referred to a press release issued by the ministry of the Interior saying “when the above-cited citizen was informed through the house intercom we had to proceed with a search, he began uttering some obscenities and said he would use a firearm, if police officers approached his apartment”.
“Thus, we took a decision to call “Berkut” special force unit officers with the intent to force the entry door. The operation was conducted in presence of search witnesses and a representative of the local government body.
“As the apartment was searched, the journalist’s behaviour, as well as this one of his sons and wife was cynical, they used bad language, threatened the police officers with a physical violence and dismissals from the ministry of the Interior.The police officers recorded all that on video”. Frankly, it is hard to imagine how some unarmed persons could threaten the armed cap-a-pie “Berkut”-men with a physical violence.
Our journalist who is investigating the Klymentyev’s case now, was present at the scene. He said several times they called an ambulance for Ismaylov's wife, in order to prevent syncope. Not only she was unable to threaten anybody, she could not speak, as she was shocked by such a number of masked men armed with Kalashnikovs assault rifles.
There were five “Berkut”-men for each person in the apartment, and these brave soldiers, as it was found out, suffered physical violence… Ismaylov was crying they tried to plant some white powder to his apartment, the journalists heard it. And today the police reported they did find drugs in the apartment…
So, I would like to ask these men with shoulder straps, who had signed this press release, and maybe this is a naïve question: have you ever heard what honour is?
All this smells a bad movie. But, unfortunately, this is Ukraine's reality. This is a semi-criminal state where human rights is nonentity, where nor law, neither legitimacy exist. This is a country where its citizens are totally unarmed in front of the arbitrary rule of those who are supposed to protect them. This is Ukraine in 2010.
Is this Ukraine for people? |
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The value of both moral and reputation damages is growing as fast as that of a food basket of a common Ukrainian citizen. The moral damages sought in cases against the media have been growing all these years. This year has seen an absolute record in Ukraine’s history: court ruled the Blitz Inform Publishing House would have to pay 24mn UAH in damages to the plaintiff, a businessman who was not happy about one of the articles it had published. The initial damages he sought had actually been 46mn UAH. The case is currently being heard by an appellate court. We asked Tetiana Kotiuzhinska, President of the Association of Media Lawyers of Ukraine, to comment on the situation with lawsuits, filed against mass media.
²Ì²: Speaking globally, how big are damages sought in such lawsuits, filed in Ukraine?
Tetiana Kotiuzhinska: Ukraine is not among the world’s record-holders in legal actions against the media. For instance, the Supreme Court of Indonesia has satisfied the lawsuit of Indonesia’s ex-president Suharto against American magazine Time, ordering the magazine to pay $129mn in damages, while the former sought $27bn.
²Ì²: What was the situation with legal actions against mass media in Ukraine before?
Tetiana Kotiuzhinska:In 1998, the court issued a ruling in the case of the newspaper Vseukrainskiye Vedomosti ordering it to pay 5mn UAH in damages, later, there was another court decision, shocking the public, Members of Parliament and the judicial branch, ordering the defendant to pay 9mn UAH in damages to the then Interior Minister Kravchenko. These judgments actually triggered the launch of the program of legal defense and education of mass media IREX ProMedia. Taking into account the fact it was the first time Ukrainian lawyers and judges had faced such lawsuits, a number of seminars were held to analyze the legislation in force and practices of the European Court of Human Rights, as its rulings had just taken effect in Ukraine. We organized a constantly open hotline for journalists and mass media. The Program paid lawyers representing journalists and the media in court in cases against mass media. Moreover, the Program promoted a Resolution of the Plenum of the Supreme Court of Ukraine as of 2001 introducing such notions as “evaluative judgment” and “evil intents” etc. In 2005-06, the European Court of Human Rights issued three decisions against Ukraine under Article 10 (on freedom of expression), stressing on the necessity to introduce certain amendments to the Ukrainian legislation (Article 277 of the Civil Codó of Ukraine) and legal practice.
²Ì²: So, it’s not that bad, is it?
Tetiana Kotiuzhinska: Legal statistics demonstrates positive development: the number of lawsuits has dropped, the number of lawsuits, rejected as evaluative judgments, not subject to prosecution, has grown. But these changes are not stable, which is demonstrated by several rulings, issued in 2007-08, ordering the media to pay 50-80 thousand UAH in damages; and the ruling in the case of the newspaper Business, ordering it to pay 22mn UAH in damages; plus high damages the press has to pay if sued by a judge; and results of generalizing legal practices, provided by the Association of Media Lawyers to draft amendments to the Resolution of the Plenum of the Supreme Court of Ukraine.
It is also an alarming fact that half of the list of press freedom persecutors, made public by the National Union of Journalists of Ukraine before the Day of Press Freedom, is made up of judges.
²Ì²: Why do you say high damages sought violate rights of the media? Plaintiffs have their rights too.
Tetiana Kotiuzhinska: In the Case Tolstoy Miloslavsky vs. the United Kingdom, heard in 1995, the European Court of Human Rights found Great Britain guilty of violating the Convention for the Protection of Human Rights and Fundamental Freedoms based on the fact that having ordered the defendant to pay ₤1,5mn in damages, the state (which forms courts and is accountable to international bodies for their performance) had failed to exercise “judicial control over the award of damages in defamation cases, which had been insufficient to ensure that such awards were proportionate”. According to the Court, the amount of the reparation was excessive and would serve not to defend the reputation of the plaintiff, but to punish the defendant. (“The jury had also been directed that an attempt to justify the allegations aggravated the damage suffered. This principle, in conjunction with the strict liability rule in libel cases, resulted in the imposition of a harsher penalty on a defendant who made his allegations in good faith but who failed to prove them to be true, than on a defendant who spoke knowing himself to be lying and did not
attempt to defend his allegations”). Having monitored 738 rulings in mass information cases, passed by various courts in Ukraine in the last 10 years, we established that only 25 percent of the plaintiffs had sought reputation damages alone. Over 70 percent sought financial compensation too. It means the plaintiffs wanted not only to refute false information on themselves, but also to win some money. Plaintiffs normally seek rather high damages. Only 6 percent of them are satisfied with symbolic sums, ranging from 1 to 1700 UAH. Most of them (70%) seek up to 170 thousand UAH in damages, and 24 percent consider their “moral damages” to be worth even more.
Courts usually don’t satisfy the entire damages in the lawsuit, but the moral damages, paid to such plaintiffs as judges and state officials, can amount to 25-100 thousand UAH.
²Ì²: Who sues the media most often?
Tetiana Kotiuzhinska: State officials and politicians worry most about their honor and dignity – around 50 percent. But these persons are not supposed to go to court at all. They have all kinds of opportunities to refute defamation: press conferences, briefings, extra services. But no, they need lawsuits to prove they are able to punish the press. For instance, as the mayor of Slovyansk commented on the goal of his lawsuit in an interview, he said: “I wanted to punish the journalist”. This goal is not legal as such lawsuits should be filed in order to defend one’s reputation and legal rights, while moral damages are supposed to cover damage actually inflicted.
Only 34% of plaintiffs are ordinary individuals, 16% are businessmen. But it is businessmen that can receive the biggest compensation as they can pay high state duties (for instance, 4,6mn UAH of the state duties in the Business case), which “stimulates” the court to pass the “right decision”.
²Ì²: What needs to be done to improve the situation?
Tetiana Kotiuzhinska: Firstly, we should demonstrate our professional unity, covering lawsuits and judgments against mass media and reminding judges, other state officials and politicians of the requirements of the democratic society. We can offer plaintiffs to hear a case in the Commission for Journalistic Code. The commission can rule a journalist and mass media has broken the Code of Ukrainian Journalist and order them to refute the information concerned. If that’s what a plaintiff truly wants, but not simply to punish the media, he or she will accept this ruling.
Secondly, we need to initiate amendments to the Resolutions of the Plenum of the Supreme Court of Ukraine, which would create a single practice of Ukrainian courts hearing information arguments taking into account the practice of the European Court of Human Rights. The Supreme Court plans to adopt these amendments or a special new resolution this year. And the Association of Media Lawyers has been making every effort for these plans to be implemented. We also support the hotline for journalists and pay the lawyers in the cases against the media.
Interview by Oksana Synytska, IMI
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Last comment
 The Ukraine MPs are going to resume an old practice of criminal liability for libel. May 17, the MP Vasyl Kyselyov, who had been elected as a member of the Party of Regions list, has submitted a respective bill at the parliament (Verkhovna Rada). |
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Debate
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Wednesday, 09 June 2010 |
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The first week of June and the last week of May a number of incidents have been reported which are evidence of attempts made by new Administration of the President, the Cabinet of Ministers and some representatives of the governing party in the regions to restrict rights and freedoms of the mass media and Ukraine’s citizens. These are alarming attempts of the head of the Security Service of Ukraine (SBU) and, being in his second job, co-owner of the most important TV channel to exert influence on procedure of delivering the authorizations to broadcast for two independent and critical towards authorities TV channels, Channel 5 and TVi. As response to this pressure the journalists have started a campaign “Stop to censorship!”, held the Journalist’s Day. One should remark, the action which involved several prominent journalists from national TV channels has not been even mentioned in the news at these TV channels. These are facts involving pressure by government bodies. |
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