Delegation members share thoughts on press freedom in Ukraine (09/19/99)

Delegation members share thoughts on press freedom in Ukraine

by Irene Jarosewich

NEW YORK - A dozen members of a 16-person delegation from Ukraine, consisting of attorneys, judges and journalists, met at the offices of the Committee to Protect Journalists (CPJ) on August 24 to learn about the organization's efforts to defend journalists worldwide, as well as to offer their thoughts on the situation of press freedom in Ukraine. Chrystyna Lapychak, program director for Eastern Europe at CPJ, greeted the delegation with congratulatory remarks in honor of Ukraine's eighth anniversary of independence, after which she gave a presentation about CPJ's role as an international advocate for the rights of journalists and freedom of the press.

The CPJ functions as a "watchdog" of media freedom and is often one of the first organizations to alert international institutions, media and governments about press abuse. CPJ works to assist individual journalists who are being threatened and conducts reviews worldwide of the repression by governments of individual journalists in particular and media freedom in general.

The organization annually issues a "Top Ten Enemies of the Press". For a dramatic increase in the use of administrative methods (audits, fines, lawsuits, taxation, etc.) to suppress freedom of the press and for not sustaining a legal and political environment in which journalists can practice their profession without threat of physical harm, Ukraine's President Leonid Kuchma appeared sixth on this year's CPJ list, which was issued in May.

Members of the delegation included lawyers who defend journalists and media organizations, two journalists, as well as two judges who hear media-related court cases. As delegation members spoke about the problems in Ukraine, the issue of defamation and libel lawsuits surfaced as a major means by which the press is controlled.

Unlike many Western democracies in which public figures, especially elected officials, are held up to higher public standards of accountability and have less right to privacy than do private individuals, public officials in Ukraine appear not to believe that they need to be accountable to the electorate for their actions and resent the scrutiny of the media. Therefore, Ukraine has a series of laws that basically do not allow the media to criticize public officials or scrutinize their activities without running the risk of being sued, fined, even jailed.

Ihor Samsin, one of the judges in the delegation, noted that judges are frequently criticized for the decisions they make in libel cases that go against journalists. He noted that, "the laws may be bad, but it is our responsibility to make a decision in accordance with the law. We can't be faulted for the bad laws - we can only be faulted if we do not adhere to them properly."

The lengthy discussion on suppression of press freedom in Ukraine brought out disparate points of views. Many of the delegation members claimed that much of the suppression is not political or ideological and does not come from the government - especially on the oblast level. Other factors, mostly economic, are more prevalent in the manipulation of the media, they argued. Examples included scenarios such as when a businessman will pay an editor to publish nasty articles about a competitor, or the situation in which a newspaper, in an attempt to destroy its competition and get advertisers and subscribers for themselves, will pay off government officials to levy a heavy fine against the competing publication.

Several lawyers also accused journalists and editors of being unfamiliar with the libel law, or of purposefully flaunting libel laws to gain notoriety. When the person whom they scandalized then sues, they scream suppression of free press, when the article really was irresponsible and illegal journalism, the laywers noted.

They cited instances when editors turned to them for advice about publishing a certain article and were advised to not publish since the article would be libelous under existing law - but did so anyway. Noted a young lawyer from Vinnytsia, Viktor Andrushchenko, it's one thing when government officials scream libel in attempt to cover up their illegal activity, but private citizens have the right to expect protection and newspapers can't be allowed to run false, scandalous stories with impunity.

In response, Volodymyr Skachko, one of two journalists in the delegation, noted that, nonetheless, "it is the government's responsibility to maintain a political and economic environment where people don't feel as though they need to or can ruin other people to survive," and that it doesn't much matter if the manipulation and suppression of press freedom is done as a result of economic or political motivation - the end result is the same - a de facto suppression of free speech and no mechanism with which to counterbalance the power of officials over private lives.

As for remarks that "we just follow the law, it's not our fault if the laws are bad," Mr. Skachko replied that the judiciary would better serve itself and the people of Ukraine if it exercized a little more independence from the executive branch and showed a little more courage.

According to delegation members, the methods by which press freedom in Ukraine is suppressed can be broken down into several general types: the (negative or positive) article which is paid for - the "zakazna" - in which the press is used to destroy economic or political competitors and thus threatens press independence and reliability of media as a neutral or objective voice; the article that is written as a result of a thinly veiled government "request"/directive, which also undermines the role of the press as an objective provider of information; and a variety of administrative methods used to meet political and economic ends.

In general, administrative methods appear to be the preferred form of harassment - for example, editors are not jailed for publishing articles critical of those in power, rather the entire newspaper is shut down for months so that a "tax audit" can be conducted. Other methods include the use of heavy fines for alleged, supposedly serious infractions of the law, for example, the use of the Russian language in an advertisement without running the same advertisement in Ukrainian.

On the oblast level, tax and fire inspectors often cite alleged infractions that carry heavy fines in order to solicit a bribe from the publication to cancel the citation. Other examples include the delay in approving certain legal documents, such as re-registration, until an editor "agrees" to fire a particular journalist.

Mr. Samsin, however, holds out great hope for the development in Ukraine of an independent judiciary that will carry more authority - one that ultimately will give more protection to journalists. He noted that Ukraine had no real history of case law and legal precedent since time is needed to develop such a history. Only with legal precedent can a legal system develop consistency, he noted, which gives the judiciary legitimacy, and legitimacy over time gives authority. The Ukrainian legal system is only now beginning to have the time to develop an independent authority.

The Supreme Court is beginning to be the final arbitrator in cases from all the oblasts, he stated, and therefore is giving a final interpretation to certain laws. These interpretations will then trickle back into the oblasts and in this way, he noted, over time, judicial rulings should become more consistent throughout the republic.

Mr. Samsin also noted that more often courts are being used as final arbitrators - a departure from the "executive decree" of the past - and the more frequently major issues arise that give courts exposure, the more legitimacy they will achieve. He predicted, for example, that there will be great disputes surrounding the upcoming presidential election - accusations of violations of campaign and election laws that the courts will be asked to consider - and then the courts will be making decisions that will have to be followed. An independent judiciary is equally necessary for the well-being of a nation as an independent media, he noted.

The delegation was in the United States as part of a two-week media lawyers training program jointly organized by the Media Studies Center of the Freedom Forum Foundation of Virginia and the Squadron Program on Law, Media and Society, part of the Benjamin N. Cardozo School of Law in New York City.

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