The ruling Party of the Regions’
backdown last year over its controversial bill on recriminalizing libel was
widely viewed as a temporary retreat in the face of mass protest. Indeed,
Regions Party member of parliament Olena Bondarenko even said: “We won’t give
any guarantees. It will all depend on the situation in the country”.
Judging from the latest article officially penned by Kuzmin, those
in power may now have decided that “the situation in the country” requires
measures to combat “defamation.” Kuzmin
was supposedly prompted to write the article in the newspaper Law and
Business by “the “dangerous trend towards using the phenomenon of
defamation in order to put unlawful pressure on the courts and criminal
investigators.”
Fear that Kuzmin’s text heralds a
new drive to criminalize libel has effectively been confirmed by President Viktor
Yanukovych’s press secretary Darya Chepak. She has promised that a new libel
law will not get passed without consultation with experts, Ukrainian civil
society and “the international expert community.” What exactly they’re supposed
to discuss is the only mystery since Ukraine’s media and civic organizations,
and a formidable number of European structures and international nongovernmental
organizations have already expressed total opposition to any attempt to
criminalize libel.
Nor is there any chance that Kuzmin
will convince them that “the situation” now demands it. Even in countries where
the judiciary is not as devastatingly compromised as in Ukraine, we would be
startled to hear that the courts should not be criticized because “the divine
nature of the judiciary was already defined in Biblical texts” and “the
Bible teaches us of the fairness of the justice system.” We are,
presumably, to understand that those who question the justice of a verdict, the
independence of a specific judge or who point to politically motivated
prosecutions are effectively rebelling against God.
Such rebels, incidentally, include not only
imprisoned former Prime Minister Yulia Tymoshenko’s daughter Eugenia, her
defender Serhiy Vlasenko and former Deputy Prime Minister Hryhory Nemyrya, but
also such well-known international analysts as Anders Aslund and former U.S.
Ambassador to Ukraine, Stephen Pifer. The two international experts, we
are asked to believe, have expressed their certainly unflattering opinion of
Kuzmin in an attempt “to discredit the prosecutor so as to influence the
investigation in favor of (ex-President) Leonid Kuchma.” Kuchma’s prosecution
over the Sept. 16, 2000 killing of journalist Georgy Gongadze was initiated by
the Prosecutor General’s Office only to be obligingly laid to rest by a
Constitutional Court judgement in October 2011.
However the main reason why Kuzmin will not
convince anybody lies elsewhere.
If in September 2012 the draft bill passed in
its first reading wanted to criminalize libel, Kuzmin is now talking about “defamation.”
The distinction is clear from the definition he cites. Defamation is understood
to be “the public dissemination of true or made up information which
denigrates the honor, dignity and business reputation of an individual or
organization, shames them in the press in order to exert influence on how they
carry out their duties.”
Thus, unlike libel in Ukrainian legislation,
defamatory information need not be untrue which changes the goalposts
altogether. The author of the article cites numerous examples in an effort to
prove that Ukraine is actually lagging behind many European countries who
prosecute for defamation. It is even asserted that “the European Court of
Human Rights took a tough stand in condemning defamation as an attempt to
discredit the court and state authorities.”
This refers to the case of Barford v. Denmark,
where a journalist had named two people and claimed that they had passed a
ruling required by the authorities. The court in Strasbourg found that there
had not been any violation of the European Convention since the journalist had
not been able to substantiate his allegation.
Even in countries where criminal liability is
still envisaged for libel, it is seldom applied. In neighboring Poland, a
ruling last year against the author of a site and material against President Bronislaw
Komarowski aroused heated discussion and calls for the law to be changed. Most
importantly, the court of appeal on Jan. 17 overturned the controversial
sentence. It found that Robert Frycz had not insulted the president and that
the latter, as a public figure, must expect criticism, however harsh.
Kuzmin considers that one must fight hard
against anything that could damage the standing of the courts and of the
authorities. This includes accusations that the right to a fair trial of, for
example, Tymoshenko and ex-Interior Minister Yury Lutsenko was breached and of
selective justice in general. Effectively all those who try to draw
attention to dubious verdicts, procedural infringements, likely use of torture
or ill-treatment to obtain confessions and much more, can be accused of “defamation
as a method of exerting unlawful influence on the court and investigator in
criminal prosecutions.”
Kuzmin is proposing to introduce an article on
defamation to the Code of Criminal Offences and stresses “the need to
strengthen the authority of the judiciary.”
Nor is he alone in this. On March 6, the same
day that Ukraine’s High Administrative Court stripped elected opposition member
of parliament Serhiy Vlasenko of his mandate, the Cabinet of Ministers
supported a draft law aimed at heightening state protection of judges and
imposing a ban on public officials divulging any information about judges.
So do we undermine the standing of Ukraine’s
judiciary when we report that Rodion Kireyev, the young judge who in October
2011 sentenced former Prime Minister Tymoshenko to seven years imprisonment
over the 2009 gas accords with Russia has been made acting head of the
Pechersky District Court in Kyiv?
Or that Lilia Frolova, state prosecutor in that
same case, as well as in the latest accusations against Tymoshenko, has been promoted
to the position of deputy prosecutor general? Or when the media publish
photos and information about ultra-expensive watches worn by some judges and
compare their price with the judges’ income? How about when we inform of
flagrant procedural infringements by this or that judge?
Of course we can try in court to uphold our
right to divulge such information. We can even hope that another judge will
understand what really damages the standing of the judiciary.
We can, but the number of people willing to
take the risk will be extremely small, which is presumably the calculation.
Halya Coynash is a
member of the Kharkiv Human Rights Protection Group. The link to this article
is at http://khpg.org/index.php?id=1364178250.
