Plans last year by Ukraine’s ruling Party of the Regions to reintroduce criminal liability for libel rightly sent alarm bells ringing both in Ukraine and abroad. Scope for abuse given the judiciary’s notorious corruption and increasingly eroded independence was vast. The possibilities are no less worrying where the courts give a judicial carte blanche to defamation, and the lack of media response to the clear danger signals from a recent appeal court ruling would make Pavlov turn in his grave.
The Kyiv Court of Appeal has overturned a 4 April judgment, which ordered the state-owned and increasingly subservient UTV-1 channel to issue a retraction over information in a supposed documentary shown twice in primetime viewing hours. Since the information in question was provably inaccurate, the conclusion seems clear that, at least in certain circumstances, a television company can produce a film, call it a documentary and invent any purportedly factual details that it likes about a specific person.
The film “Hades Hell” is about four bomb blasts in Dnipropetrovsk on 27 April 2012, which made world headlines coming just five weeks before the Euro 2012 Soccer Championship, co-hosted by Ukraine. Four men were arrested exactly one week before the first soccer match, with the Prosecutor General publicly informing President Yanukovych that the crime was solved and that they had all the proof needed of the men’s guilt.
There are in fact many question marks, but the charges against one of the accused – Dmytro Reva – are of particular concern. He is alleged to have acted as an accomplice by going to the city centre to “observe” reaction to the blasts and, if necessary, pass information to the two alleged organizers. He happened to have seen two blasts, though explosives experts have confirmed that he might not have witnessed any during the period he was in the centre. A prominent legal expert has provided an assessment, which states that the actions he is accused of do not constitute a crime. Reva himself has consistently denied any involvement and has been able to demonstrate that the alleged call dialed to another suspect during the search of his home was made by one of the Security Service officers. That call was used to justify his remand in custody, yet all attempts to have him released have been rejected.
All of the above elicited considerable publicity and skepticism about the case. Then in October 2012, one week before the parliamentary elections, UTV-1 showed “Hades Hell” which presents the case as solved and all four accused as “terrorists,” and contains serious distortions.
The only material evidence as such in the criminal case against Reva is an apparently innocuous exchange of text messages between one of the alleged organizers, D. Sukachev, and Reva. The two men studied at university together and have common friends. Just over an hour after the last explosion, Sukachev sent the following text message: “Are you OK? None of our lot hurt?” Reva replied: “Yeah, I think so,” and received the response: “Hades Hell, everything at our end seems to be OK.”
The first minutes of the film show a significantly altered exchange: Viewers see the words: “From the terrorists’ messages [in the language of the original] and then the supposed message: Everything went well, our people didn’t get hurt.” “Good. Now Hades Hell has begun.”
Dmytro Reva’s photograph is on the screen when the presenter muses about the possible reasons why “intellectuals become ordinary bombers” and how “we are dealing with a new type of terrorist.”
Then the presenter claims that: “During our investigation we learned that two of the arrested men – Viktor Sukachev and Dmitry Reva – previously worked in the team of a member of the opposition. We were also able to establish that the wrongdoers had in his name corresponded with the head of the Dnipro Hydro-Electric and Zaporizhzhya Nuclear Power Stations … You can fully agree that having arrested the group of terrorists, the law enforcers have averted an even greater danger for millions of our citizens…”
The first instance court on 4 April agreed that these and other elements of the film were false and defamatory, and ordered that both UTV-1 and the film producer VTV issue retractions. They appealed and two months later the Kyiv Court of Appeal found that there had been no defamation.
Public watchdog with a difference
The appeal court ruling refers to the media’s right to value judgments, including, presumably, judging a person to be a terrorist before the court has passed sentence. The judges chose to ignore the fact that Reva’s photo accompanied assertions regarding “terrorists,” which were presented as undisputed fact. It found that Reva had not been defamed since his name was not given in the specific offending utterances, including the falsified text messages. In the claims about correspondence from the opposition MP’s headquarters, the court treats the first – factually undisputed – sentence as entirely separate. Since the next sentence speaks of “wrongdoers,” without giving the names, the court asserts that this cannot be said to refer to Reva. It even says that the film producer is encouraging viewers “to form their own opinion.”
This sounds marvelous, as do the references to provisions in national legislation on media freedom, the European Convention, and European Court of Human Rights case law. We are reminded, for example, that the Court in Strasbourg has on many occasions stressed the importance of the media’s role as public watchdog.
The problem is that the Ukrainian court has turned everything on its head and not one of the four cases it cites supports its position. Nor could they since the role of a public watchdog is to protect the public’s right to know, not to manipulate and mislead its audience. The film in question, which claims to be a documentary, consciously distorts evidence and presents fictitious assertions as “journalist investigations.” Its showing, especially given the assertions about links with an opposition MP, just before the elections, was already worrying. The Court of Appeal’s ruling can only fuel this concern.
Under President Yanukovych television channels in general, and UTV-1 in particular have become increasingly bland, lacking in balance and show a pronounced tendency to muffle or distort stories which could put those in power in a bad light.
The last few months have seen a number of changes in media ownership with most of the new owners of major television or printed press outlets being people close to the president and those around him (most notably Serhiy Lyovochkin, Head of the President’s Administration). The last more or less independent TV channel TVi, and journals, including Forbes Ukraine, all of which had been critical of the present regime, are all now in new hands. Civic and media organizations have suggested that the media are being brought into line before the 2015 Presidential elections.
State-owned UTV-1 has on very many occasions, especially with respect to the prosecutions of former Prime Minister and opposition leader Yulia Tymoshenko, appeared to work in close cooperation with members of the government and law enforcement bodies.
The court’s endorsement of UTV-1’s role as investigator and judge, and lack of concern about the questionable methods used to shape public opinion about a criminal case set an alarming precedent. With presidential elections on the horizon, a green light has been given to circulation via the media of false information about political opponents, inconvenient journalists, civic organizations, etc. This is a powerful and dangerous weapon.