Freedom of expression and information Experts’ report on the situation in Ukraine, following their visit to the country from 18 to 20 November 2002

Experts: Mr. David Anderson and Mr. Karol Jakubowicz I.Introduction 1. Following the Ministers’ Deputies decision of 18 July 2001 authorising the Secretary General to further pursue his contacts and collect information on the theme of freedom of expression and information in all member states and to provide them with the results by the end of 2002, the two undersigned experts, accompanied by Mrs Catherine Maffucci-Hugel, Administrative Officer at the Monitoring Department of the Directorate of Strategic Planning (DSP), were asked by the Secretary General to visit Ukraine. 2.The purpose of our visit was to examine to what extent the current legal and de facto situation with regard to the media in Ukraine meets the requirements of freedom of expression as enshrined in Article 10 of the European Convention on Human Rights (ECHR) and interpreted by the Strasbourg Court, to verify and supplement the information already provided to the Ministers’ Deputies and, as appropriate, to provide advice to the Secretary General. 3. We visited Kyiv between 18 and 20 November 2002. We met with prominent figures from the media and the state authorities. Their names appear in the appendix to this report. Our visit was a follow-up to a similar visit in October/November 2000, which led us to conclude that the situation in Ukraine gave rise to very serious concern [see CM/Monitor (2001) 6 Addendum I, 27 February 2001]. 4. We have been able to take account of certain matters post-dating our visit, including information provided to the Council of Europe’s Committee of Ministers by the Chairman of the Ukrainian State Committee for Information Policy, Television and Radio Broadcasting on 3 December 2002 and reports of the Ukrainian parliamentary hearing on the media of 4 December 2002. 5.We believe that research undertaken prior to, during and after the visit, has equipped us with information necessary to identify and illustrate general trends in the matters falling within our mandate, to reach certain general conclusions and to make some recommendations. II. SUMMARY of findings[1]

6. We were pleased to see that in some respects the situation had improved since 2000. In particular:

a. The offence of criminal libel has (in accordance with our specific recommendation) been removed from the new Criminal Code.

b. The practice of awarding excessive damages in civil defamation suits has been largely curbed, though examples continue to occur of oppressive use of the defamation law by public officials and public authorities.

c. There are signs of more effective organisation and co-ordination by Ukrainian journalists in opposing what they regard as political censorship and interference on the part of government with their activities.

d. Parliamentary hearings "Society, media, authorities: freedom of expression and censorship in Ukraine" (Kyiv, 4 December, 2002) show that at least a part of the political establishment acknowledges the existence of serious problems regarding freedom of expression and the media. The challenge is to undertake action to resolve them.

e. There are lively contacts and cooperation between Ukraine and other countries and international organisations in the media field as well as Ukrainian engagement in many initiatives (not least the Council of Europe’s Action Plan for the Media in Ukraine) to promote knowledge of European standards of freedom of expression, train media and other professionals and assist media development. f. The advertising market has improved with recent rapid economic growth, enabling some TV stations to operate profitably and preparing the way for reduced dependence of media outlets on political paymasters.

7. These positive signs were, however, outweighed by a number of negative developments since 2000. In particular:

a. Changes in media ownership, especially in television, have put many media outlets under the control of people loyal to the authorities, seriously reducing prospects for news and political coverage to include critical analysis of the administration and its policies.

b. There have been widespread complaints, particularly since the parliamentary elections of March 2002, about interference by the Presidential Administration in the work not only of State television but of privately-owned stations such as 1+1, Inter and Novy Kanal. Those complaints, which centre upon the establishment of the Department of Information Policy and the alleged circulation to station directors and newsrooms of weekly “temniki” suggesting subjects and angles for news coverage, have prompted the resignation of respected journalists, petitions to the President and the establishment of a new Trade Union.

c. There have been a number of long-running disputes over the licences required by TV and radio stations to operate (e.g. 1+1, Public Radio, Radio Kontinent, Efir 1), underlining the opaque and unsatisfactory procedure for the grant and revocation of licences, and the lack of sufficient guarantees of independence of the National Council for TV and Radio Broadcasting.

d. The requirement of a second broadcasting licence has recently been introduced for foreign broadcasters and those rebroadcasting their programmes.

A theme common to a number of those developments is an apparent desire on the part of the executive authorities to change what has been a defensive strategy of reacting to media coverage into an offensive one of guiding or even controlling it. This is unacceptable in a democratic society. 8. Furthermore, little of substance appears to have been done to address some of the most serious problems identified by us in 2000 and by other international observers. We note, in particular:

a. The absence of any system for public service broadcasting, or of any indication that the introduction of such a system is imminent.

b. The continued presence on the statute book of the Law on the Procedure of Coverage by the Mass Media of the Performance of State Authorities and Local Self-Government Bodies in Ukraine, whose repeal was recommended by OSCE in 2001, and the failure to make other necessary changes to broadcasting and other media laws which fail to protect media organizations against arbitrary interference.

c. The continued very high incidence of violence against journalists (e.g. the killings of Georgyi Gongadze in 2000 and Ihor Alexandrov in 2001, and the disappearance of Mykhaylo Kolomiets in October 2002), and the low clear-up rate for such crimes.

d. The continued abuse, particularly in the provinces, of tax, regulatory and police powers in order to intimidate hostile media.

9. In short, the situation of the media in the Ukraine still does not comply with the basic requirements of the ECHR. Indeed it seems to us to have deteriorated in some important respects since our last visit in 2000.

10. We hope that international organisations will continue to offer all assistance that is feasible for the development of a healthy civil society and media sector in Ukraine. We set out our detailed recommendations in this regard at the end of this report. Ultimately, however, as the Chairman of the State Committee for Information Policy, TV and Radio Broadcasting stressed in the information recently provided to the Council of Europe’s Committee of Ministers, the many problems in this areas must be resolved by the Ukrainian government and people themselves. This will require the necessary political will. Not much will change, and international training and assistance programmes are bound to be ineffective, if media people continue to fear interference, persecution and intimidation and are not convinced they can rely on the authorities to punish those hindering media and journalistic activity. III. PARTICULAR AREAS OF CONCERN

A.Defamation and related issues

Criminal proceedings

11. We welcome the repeal with effect from 1 September 2001 of the criminal offence of libel (formerly Art 125 of the Criminal Code), as promised to the Committee of Ministers in response to our previous report in 2000. This was not merely a token measure, but a real and substantial contribution to the freedom of the media: as recently as 1998 123 persons were convicted of criminal libel and seven of them imprisoned. Those who benefited directly from the repeal include the independent editor Oleh Lyashko, who was two months into a two-year sentence for criminal libel when the new Criminal Code came into force.

Civil proceedings

12. A large number of civil defamation cases continued to be brought under Article 7 of the Civil Code. According to figures compiled by the Supreme Court, some 310 cases were brought in the first six months of 2002, as against 245 in the first six months of 2001. Strong civil defamation laws continue to be necessary in Ukraine, where standards of journalism can be very low. There are however two remaining concerns as regards the application of those laws.

13. The first such concern is the high proportion of claims brought against media outlets and individual journalists by public authorities and public officials. The potential of such claims to intimidate or silence hostile media need hardly be underlined. This problem is, at least, understood at the highest level of the judiciary. Article 17 of the Law on State Support of Mass Media has been interpreted by the Supreme Court as imposing a requirement of deliberate falsehood on the part of the journalist before moral damages can be awarded in such cases. However as we were told by a Supreme Court judge, this provision and its correct interpretation are insufficiently known in the lower courts, with the result that damages continue to be awarded to public officials and public authorities simply because the journalist concerned cannot prove to the satisfaction of a court that the stories are true. We believe this to be an unacceptable impediment on the ability of the media to report on corruption and other forms of wrongdoing in government.

14. The second concern is the level of damages awarded. The position has undoubtedly moderated since the huge awards made in 1998 against Vseukrainskie Vedomosti and Kievskie Vedomosti, referred to in our last report. Nonetheless, serious problems remain. One example to which we were referred was a decision of the District Court in Cherkassy in a case brought against two TV stations and a newspaper by a former District Judge who had stood unsuccessfully for office as Mayor of Kirovograd. Orders that each TV station pay damages of 300,000 hryvna threatened the continued existence of the stations in question. 15. As in 2000, proposals continue to be floated for a cap on damages for defamation. Though such a cap might have a certain effectiveness in the short term, a more desirable outcome would be a situation in which judges in all courts handling defamation cases were aware of the case law of the European Court of Human Rights and its underlying principles, and understood the need for awards of damages to be proportionate to the loss suffered and to the means of the offending media outlet or journalist. B. Licensing issues

16. There have been a number of high-profile disputes over the licensing of radio stations (in particular Radio Kontinent and the Soros-funded independent radio project Public Radio) and television stations (including the national private television channel Studio 1+1 and the Lugansk television station Efir).

17. This is not the place to rehearse the details of those disputes, which have been extensively reported elsewhere (and have, in the case of Radio Kontinent, been the subject both of an expression of concern by the Secretary General of the Council of Europe and an application to the European Court of Human Rights). Certain common themes may however be identified. These include:

a. A governing law (the Law on Television and Radio Broadcasting of 1993, as amended) which lacks some of the basic definitions needed for the transparent regulation of broadcasting, particularly as regards the controversial subject of retransmission and the penalties liable to be imposed for violations.

b. A regulatory body, the National Council for Television and Radio Broadcasting (NCTRB), which lacks the attributes of an autonomous state authority. Since the law offers members of NCTRB no protection against dismissal at any time, the Council is often reduced to an instrument of persecution of broadcast media.

c. Reports of pressure applied by the NCTRB and other state authorities to those relaying broadcasts of foreign stations, including both Russian and west European stations such as BBC and Deutsche Welle. Such pressure takes many forms, from attempts at quiet persuasion to the revocation or non-renewal of licences on the basis that retransmission of foreign programmes is – as it was described by the Ukrainian authorities in information provided to the Council of Europe - a “concealed form of sub-leasing prohibited by the Ukrainian legislation”.

d. Monitoring of output by the NCTRB which, although defended in the interests of ensuring diversity of media in Ukraine, causes some in the current political climate to fear reprisals for reports or editorial decisions they have made.

e. Frequent complaints of corruption.

18. In early November 2002, the NCTRB issued a statement calling for all Ukrainian broadcasters relaying foreign stations to apply for a further special licence from the NCTRB before 1 January 2003. The requirement for such an further licence will impose a significant cost burden on stations which can ill afford it, and is questionable both as a matter of Ukrainian law and in terms of the ECHR. It is viewed with considerable misgivings by foreign broadcasters such as the BBC, which is dependent upon a number of independent stations to rebroadcast its output throughout Ukraine, and which told us that it is finding it increasingly difficult to work in Ukraine. C. Media ownership and public service broadcasting

19. Changes in ownership have resulted in a more homogeneous broadcasting sector than was the case at the time of our last visit in 2000. For example the satellite TV station STB, whose various confrontations with the authorities were detailed in our 2000 Report, is now controlled by a son-in-law of the President. We were not able to find much information about the circumstances of such changes, which have not been fought out in the courts in the manner of the Russian disputes over control of TV-6 and NTV. The current position is, however, that although there are newspapers and TV stations that are opposed to the president and government, no TV stations and few other media are owned by people without political power who seek to be even-handed in their approach.

20. The Ukrainian authorities cannot be given all the blame for the fact that media ownership is heavily politicised. The fact that it is however points up the importance of introducing public service broadcasting to Ukraine. It was disappointing in this respect to see that despite our strong recommendation in 2000, and those of other international bodies, there is no sign of the necessary legislation, or of the necessary political commitment to the introduction of public service broadcasting.

D. Attempts to guide media content

21. Although the word “censorship” has started to be used widely in relation to the Ukrainian media, and though Mr. Volodymyr Lytvyn, Speaker of the Vehkhovna Rada, has been quoted as saying that “it would be hypocritical on my part to deny the presence of political censorship in Ukrainian society”, we found no evidence of censorship in the sense of the exercise of official power to forbid publication or broadcast, or to delete material which it was intended to publish or broadcast.

22. Pressure on mainstream media to conform with the views of the government and of the presidential administration, or with their regional and local counterparts, is more various (and sometimes more subtle) in its forms. Problems regarding access to official information, accreditation and attendance at official press conferences are more often experienced by those who are expected to be troublesome or hostile in their approach. The same is said to be true of problems with transmission and distribution, and confrontations with tax and regulatory authorities. 23. The independent publisher and editor Oleh Lyashko, whose brushes with state secrecy laws and the tax authorities were catalogued in our 2000 report, and who at that time had been reduced to hand-printing his newspaper Svoboda as a result of a collective boycott by state-owned printing presses, was fair-minded enough to tell us that printed media (which, like radio stations, are less important than television as a source of news for the population as a whole) were in his opinion subject to less harassment in 2002 than in 2000. As Mr. Lyashko’s own recent history demonstrates, however, some fearsome and far from subtle difficulties remain.

24. Thus, in addition to Mr. Lyashko’s 2001 conviction for criminal libel, overturned when the law was repealed:

a. A lorry carrying 107,000 copies of his newspaper Svoboda was stopped by policemen on 24 March 2002 in Cherkassy Region, and the newspapers thrown into the river.

b. When the issue was re-printed, police entered the printers’ premises and seized the entire print-run.

c. Mr. Lyashko (who had been running for Parliament as an independent candidate) was then detained in custody for nine days. Although he was released following international pressure, at the time of our visit he was still awaiting trial for harm allegedly caused to 11 people while he was resisting arrest on the printers’ premises.

25. Mr. Lyashko attributes what he described as this “inventiveness” on the part of the authorities to allegations published in his newspaper about bribe-taking by a former Prosecutor-General of Ukraine. Whatever the explanation, experiences of this kind should have no place in a democracy.

26. Few journalists, editors, publishers or broadcasters could be expected to show the remarkable courage and equanimity of Mr. Lyashko. The consequence is self-censorship, induced by fear of the arbitrary consequences that can follow for those who are perceived as making trouble for the authorities.

27. It is in this context that the so-called “temniki” (press advisories on “the themes of the week”) must be understood. These are secret memoranda, widely believed to emanate from the Department of Information Policy within the Presidential Administration, which since March 2002 have been e-mailed to top managers of TV channels and newspapers, and sometimes even faxed directly to newsrooms. The purpose of these documents is to indicate the stories that should be covered and the line that it is recommended should be taken. They are normally issued weekly, though on at least one occasion, the second anniversary on 16 September 2002 of the disappearance of the internet journalist Gongadze, for which mass demonstrations were planned in Kyiv, a special 1-day temnik was issued.[2]

28. The temniki (a limited number of which we were able to inspect) have no formal status and are not binding on anyone, but in an atmosphere of uncertainty and fear many media have decided to play safe and to tailor their news coverage to them. They have been considered a sufficient threat to journalistic independence to contribute to:

a. the resignation in September 2002 of Andriy Shevchenko, the respected news anchor on the Novy Kanal TV station, who gave us a detailed account of that station’s experience of temniki;

b. the circulation of a protest letter by some 100 journalists from national TV channels (who described the media situation in Ukraine as “disastrous”);

c. the formation of a new trade union, which aims to use the weapons of protest and legal action to change the system of relationships between Government, the media and the public; and

d. the decision taken at the parliamentary hearing on freedom of the media on 4 December 2002 to set up a working group of members of parliament and journalists to make concrete proposals concerning, inter alia, a statute on editorial boards and the adoption of a journalists’ ethical code. 29. We would have liked to obtain the comments of those officials and ministers whom the Government arranged for us to see on the allegations concerning temniki. Unfortunately, none of those with whom we spoke admitted any knowledge of them or wished to discuss the issue; nor is the subject dealt with in the subsequent written information provided by the Chairman of the State Committee for information policy, television and radio broadcasting to the Council of Europe’s Committee of Ministers. Although we were grateful for the meetings arranged for us with government officials and ministers, it was disappointing that our interlocutors were sometimes unwilling to respond to direct questions and often claimed – perhaps, in a strictly formal sense, with some justification – that the issues we had raised were not within their areas of competence.

E. Crimes committed against journalists

30. The most serious stain on the media record of Ukraine is the succession of journalists and publishers who have been the victims of physical attack, kidnapping or murder. The Gongadze case, which was breaking at the time of our 2000 report, made international headlines because of the allegations apparently supported by tape recordings (allegations which are yet to be either proven or dismissed) that President Kuchma and his inner circle had prior knowledge of the plan to murder Mr. Gongadze.

31. The past two years have each brought their own murder. In July 2001, Ihor Alexandrov, the director of an independent TV company which had reported on organised crime and corruption, died of injuries inflicted by a group of persons wielding baseball bats. In October 2002, Mykhaylo Kolomiets, the director of Ukrayinsiki Novyny news agency went missing: his body was said to have been found in November, hanged in a forest in Belarus.

32. It would be well beyond the scope of a report such as this one to seek to apportion blame in cases such as these. Strong international pressure has kept the cases in the public eye, and there are limited grounds for optimism in the appointment of a new Prosecutor-General, Sviatoslav Piskun, who has been the first officially to acknowledge that the murder of Gongadze was politically motivated and contracted. A similar frankness was evident in the comments provided to the Committee of Ministers by letter of 4 December 2002, which acknowledged that most violence against journalists is committed for professional reasons. This contrasts with initial police statements in cases of violence against journalists, which often suggest a personal motive (or, as in the case of Mr. Kolomiets, suicide). 33. Whether local or national authorities are implicated directly in episodes such as these, or whether the authorities can be criticised only for the ineffectiveness of their investigations, it cannot be doubted that these incidents of murder and violence provide a further strong deterrent to independent investigative journalism, and that a state which allows them to take place and to go unpunished is failing in its duty to secure the freedom of expression. IV. Conclusion and RECOMMENDATIONS

A. Conclusion

34. In the light of the summary of our findings presented above (see paras. 6 to 10), we feel compelled to repeat the conclusion made in our report of 2000 that Ukraine gives rise to very serious concern in terms of freedom of expression and information.

B. Recommendations 35. These recommendations supplement those made in our report of 2000, most of which remain valid.

For Ukrainian authorities and media

36. Many of the proposals made at the Parliamentary hearings "Society, media, authorities: freedom of expression and censorship in Ukraine" should be translated into action plans and implemented. This concerns among other things:

a. Adoption of a policy of openness on the part of the authorities;

b. Strengthening criminal responsibility for hindering journalists' activity;

c. Introduction of the practice of collective bargaining, so as to regulate labour relations between journalists and media owners;

d. Introduction of a legal framework for development and observance of editorial statutes as a legal instrument needed to defend the independence of journalists and their involvement in the development of editorial policy;

e. Introduction of single accreditation of journalists;

f. Development and adoption of an "Ethical Code of Journalists". 37. All this should form part of a broader commitment on the part of both the authorities and media and journalistic community to the full observance of freedom of expression standards on the part of the authorities, and the practical of ethical and professional journalism.

38. What is required of a democratic state is full, firm and determined dedication to eliminating infringements on freedom of expression and the media. It is not enough to suggest, as do some Ukrainian officials, that the Ukrainian State should not be blamed for persecution of critical journalists by some “petty” local public official. The Ukrainian State is committed to full application of the European Convention of Human Rights and should do so in this field by:

a. Reviewing and amending media legislation (as provided for in the Council of Europe Action Plan for the Media in Ukraine), much of which lags behind European standards and fails to offer adequate protection to journalists, media and such authorities as NCTRB;

b. Reacting immediately and effectively to any instance of persecution of journalists and media by anyone and any hindrances to freedom of expression;

c. Fully cooperating with international organisations. 39.While journalistic impartiality and professionalism are predicated to some extent on respect for media independence by the authorities, and on the existence of a normally functioning media market, Ukrainian journalists should be aware that any lapse of professionalism on their part will be used by officials to justify negligence in pursuing their freedom of expression commitments. It is therefore a matter of utmost importance that renewed journalistic activism should be oriented in part towards formulation of the ethical and professional standards of journalism, and creating a system of ensuring their observance. The adoption of an Ethical Code of Journalists should be the first step in this regard. Journalistic associations and unions should censure any violations of this Code.

Recommendations for the Council of Europe

40. A new assessment of the implementation of the Action Plan for the Media in Ukraine should be carried out, with a view to a possible revision of this action plan. 41. Since revision of existing Ukrainian media legislation is encountering difficulties, involvement of Council of Europe’s Parliamentary Assembly (PACE) could be envisaged, in particular with a view to arranging meetings with Ukrainian MPs to make them aware of the need to change the legislation. 42.Given the influence of the Presidential Administration, training could be provided for officials in the Administration.

43. Council of Europe cooperation activities (in particular those relating to the Action Plan) should be decentralised to the regions.

44. Experts' legal evaluations (e.g. that of the Law 'On the Print media') should be carried out, as well evaluations in the framework of action to encourage Ukraine's ratification of the European Convention on Transfrontier Television.

45. Activities with respect to the Law on information (seminars etc.) should be undertaken.

46. Urgent action is required to disseminate knowledge of the ECHR and the case-law of the European Court of Human Rights, (e.g. precise and practical Ukrainian–language training materials); training should target, in particular, lawyers; 47. A regular and systematic monitoring of the situation of freedom of expression in Ukraine is necessary since the situation has deteriorated in some important respects.