Report for the Government of Ukraine

Ukraine’s roadblock to the EU: attacks on the press

Analysis by Una HrnjakSIS 645

Summer 2012Submitted on: June 28, 2012

Executive SummaryUkraine is a fairly new democratic republic, still transforming from a communist society

to adopting democratic principles. Since gaining its independence from the USSR, Ukrainian

leaders have expressed their deepest commitment to human rights – including media freedom.

Over the last decade however, the world has grown skeptical of Ukraine’s respect for the media,

causing organizations like the European Union to question Ukraine’s sincere commitment to

democracy and sincere interest in joining the Union. This report will review the Law of Ukraine

“On Printed Mass Media (Press) in Ukraine”, and evaluate the strengths and weaknesses of the

policy. The report will conclude by recommending steps for improvement of the policy to the

Government of Ukraine to not only help the government better protect freedom of speech and

expression but also to comply with EU mandates.

IntroductionFollowing the break-up of the USSR, Ukraine gained independence in 1991 and began its

transformation from a communist society to a democratic society; promoting a civil society and

human rights including freedom of speech. Ukraine included such vows in its Constitution,

legislation as well as through the adoption of various international treaties. This report will focus

particularly on the Law “On Printed Mass Media (Press) in Ukraine” which granted newspapers

the right to function and limited censorship.

Since Ukraine’s origin the government has remained dedicated to adopting international

human rights standards and treaties in relation to media freedom but there have been some

questions raised with President Viktor Yanukovych’s commitment to this. Since the mid-90s,

Ukrainian officials have been determined to foster better relations between the European Union

and Ukraine with eventual entry of Ukraine in to the Union (European Union, 2012), but to

complete this there are many outstanding policies Yanukovych and the current Parliament would

need to implement. Yanukovych has been shifting to more authoritarian ways while rebuilding

ties with Russia and this has caused many to question the country’s true commitment to EU entry

(Pifer, 2011). To reduce his pro-Russia image to EU officials, Yanukovych has spoken out

greatly in speeches about his promise to pursue press freedom and economic integration with

Europe "As president, I will guarantee freedom of the media and appropriate investigation of any

facts of their oppression” (Committee to Protect Journalists, 2011). Although Yanukovych may

say things like this in his speeches, there is hesitation within the international community to

believe he is genuine. An administration that has clear examples of silencing the media faces a

deep problem when attempting to convince the world they are trying to adopt a more liberal

model towards communication policies. Because of this, this report is essential to the Ukrainian

government to better understand what must be done to resolve this issue before the EU stalls

entry conversations.

EU entry Among the key priorities for Ukraine outlined in the EU Action Plan is the need to,

“Ensure respect for the freedom of the media and expression including: further improve and

enforce the legal and administrative framework for freedom of media taking into account

relevant Council of Europe recommendations and to ensure effective respect of freedom of

media, including journalists’ rights” (European Commission European Neighbourhood Policy,

2005).

Although the Ukrainian government has incorporated language about media freedom in

its Constitution, implemented media legislation and ratified various international treaties

including European Convention on Human Rights and the International Covenant on Civil and

Political Rights, there is still much to be done to show the government’s sincere commitment to

media freedom as well as journalists’ rights. According to the 2010 Press Freedom Index

produced by Reporters Without Borders, Ukraine ranks 131 out of 178 next to countries like Iraq

and Egypt for press freedom – a derisory showing for a country looking to join the European

Union (Reporters Without Borders, 2010).

Media situation in UkraineAs Ukraine remains committed to joining the EU, the deteriorating media situation in

Ukraine has received the attention of the Parliamentary Assembly of the Council of Europe

(PACE). PACE has been tracking various reports released by organizations like Reporters

Without Borders that show an increase in intimidation efforts (including violent threats,

kidnappings and even death) against journalists in Ukraine, limiting the ability of the country’s

watchdogs to report on what is truly happening within its borders (including corruption within

the government). The decline in press freedom has specifically increased since President Viktor

Yanukovych came in to office (Reporters Without Borders, 2010). Aside from tracking the

number of reported attacks to silence the media, PACE has been following the lack of effort by

Ukraine’s government to appropriately investigate attacks and found the lack of investigations to

be completely unacceptable (Council of Europe Parliamentary Assembly, 2007) and

disrespectful to journalists’ rights. Mats Johansson, the Standing Rapporteur for Media Freedom

of PACE's Committee on Culture, Science and Education, and Arne König, President of the

European Federation of Journalists explained,

“We are very concerned by threats to media freedom in Ukraine, which chairs the Council of Europe's Committee of Ministers at a time of severe national political challenges. It is important for democracy that independent media can freely report on a political crisis. Impunity for attacks on journalists and the media undermines democracy and the rule of law. It is unacceptable that law enforcement authorities have not yet been able to shed light on the disappearance of Vasyl Klymentyev one year ago. Therefore, we call on the competent authorities in Ukraine to ensure that independent and truthful information can be disseminated freely by the media in Ukraine (Council of Europe, 2011)

Ukraine’s blind eye to the threats against its own journalists and even the mistreatment of foreign

journalists has caused various EU leaders to continue questioning Yanukovych’s ability to

reform policies for future EU entry. During meetings in 2010, Chancellor Angela Merkel urged

President Yanukovych to address the crisis surrounding press freedom in his country. Merkel

explained, "I made clear that with regard to certain democratic areas, in particular, in the area of

press freedom and freedom of opinion, we [the EU] had certain questions" (Radio Free Europe,

2010). At a June 2011 meeting of the OSCE states, Article 19 and the International Media

Support groups explained to countries that there is “no justice for journalists in Ukraine, Belarus

and Russia” (International Media Support, 2011). The deaths and disappearances of journalists in

Ukraine, such as Vasyl Klymentyev, Igor Aleksandrov and Georgiy Gongadze were outlined in

the report to show a lack of commitment by the government to investigate and bring justice

(International Media Support, 2011).

Media laws in UkraineIn Ukraine’s Constitution, Article 15 bans censorship (Government of Ukraine, 1996) and

Article 34 promotes freedom of expression,

“Everyone shall be guaranteed the right to freedom of thought and speech, and to free expression of his views and beliefs. Everyone shall have the right to freely collect, store, use, and disseminate information by oral, written, or other means at his discretion. The exercise of such rights may be restricted by law in the interests of national security, territorial integrity, or public order, for the purposes of preventing disturbances or crimes, protecting the health of the population, protecting the reputation or rights of other persons, preventing the publication of information received confidentially, or supporting the authority and impartiality of justice (Government of Ukraine, 1996).”

To accompany this, three pieces of legislation were passed in the early 90s to support freedom of

expression including the Law of Ukraine “On Printed Mass Media (Press) in Ukraine”, which was

approved in December 1992 (Government of Ukraine, 2009). The Act provided the legal basis for the

operation of print media, the procedure for state registration of publications, the rights and

obligations of the journalists as well as the relations between the media and the public and other

organizations (Government of Ukraine, 2009). However, there have been plenty of issues in printed

mass media as well as in the broadcasting industry where journalists have been punished by the

government for what they report on. Ukraine’s Constitution and its accompanying media laws do not

show a commitment to protecting journalists’ rights. There is an issue within the country where

journalists must actually fear for their safety when reporting and this is completely unacceptable

when expecting EU entry. The laws do not discuss at all what the government will do in response to

threats, physical attacks and even death to journalists when their freedom of expression is eliminated,

nor does the law explain what will be done to officials – including those ruling the country – for

violating such rights. For this reason this report will identify recommendations to better protect

freedom of expression to help Ukraine comply with EU laws and standards.

The Law of Ukraine “On Printed Mass Media (Press) in Ukraine” Overview

The Law of Ukraine “On Printed Mass Media (Press) in Ukraine” was established to

guarantee the operation of printed mass media in Ukraine (Government of Ukraine, 2009) – which is

the law’s biggest strength. Allowing media organizations to function and report on social, economic

and political issues is important in a democratic society. According to the law, each citizen should

have the ability to freely express their opinions in printed form and that what they print shall be free

from censorship (Government of Ukraine, 2009). The law gives permission to not only Ukrainian

residents to report in printed media but also to those of foreign origin to express their opinions.

Within the Law there is greater detail as to what it means to be a journalist, how to function as one,

and how the journalist should report to his/her editorial staff for publication decisions. In addition the

Law outlines that, “editorial staff of mass media uses author's materials, works of literature, science

and art exclusively adhering to the legislation on intellectual property” (Government of Ukraine,

2009). The Law continues to discuss the right for a legal entity or natural person to refute what is

published if it is believed to be false. Finally, the law includes information on how to register a

newspaper.

Policy AnalysisThe Law of Ukraine “On Printed Mass Media (Press) in Ukraine” appears comprehensive

great in theory but it is very vague and allows the government of Ukraine to overstep its boundaries

whenever necessary because there are no true boundaries drawn within this policy. Although this law

and the Constitution claim that everyone has a right to their own opinion and should be able to

express themselves freely through media outlets, this has not been upheld. The Constitution, which

compliments this law states, “Everyone shall have the right to freely collect, store, use, and

disseminate information by oral, written, or other means at his discretion” (Government of Ukraine,

1996). However, numerous examples of pressure from the government to silence journalists has

shown this law does not ensure any kind of accountability on behalf of the government to commit to

such a promise.

Communication Model Because President Yanukovych’s administration resembles more closely the traditions of the

former USSR and now his close ally, Russia (Pifer, 2011), the approach towards the media has been

one of the Nationalist – Cultural model in the Ukraine. Such a global communication policy model is

characterized by authoritarian control of the media (Venturelli, 2012a), which is exemplified through

the vast examples discussed in this report of extensive state intervention to control what the media

writes about in print (as well as broadcasting) through intimidation against journalists. Harassment

towards the media occurs in various forms from verbal threats, to kidnappings and even death of

journalists to control content. The majority of the time, content is controlled when it exposes stories

of corruption in Ukraine’s government. Arendt argued that public space should not advance the

private interests of parties (Venturelli, 2012b) but politicians like Yanukovych do this when they

limit a journalist’s ability to disseminate important information to the public. When a journalist

is disabled from sharing information about the government including stories about government

corruption it makes it difficult for citizens to have the appropriate conversations they need to be

having in public spaces about what is impacting their country. Such actions by the government

are not done for the public good, they are done to protect themselves and do not allow citizens to

properly participate in the democracy. The law does not hold the leaders of Ukraine accountable

for when they do abuse Ukraine’s media to do this and that is a true weakness of the policy and a

weakening element of Ukrainian society. As it was decided in the case of the Observer &

Guardian Newspaper v UK, “Freedom of the press affords the public one of the best means of

discovering and forming an opinion of the ideas and attitudes of their political leaders” (Harris,

2009).

In addition, this type of communications model attempts to preserve national culture

(Venturelli, 2012a) and identity which can be exemplified through the 2004 ban in on Russian TV

channels and Radio channels, in order to promote “Ukrainization” (DeLong, 2011), a policy designed

to promote the Ukrainian language and other elements of Ukrainian culture. Although this policy has

begun to weaken under Yanukovych there are still elements of this practice prevalent in current times

resembling another characteristic of the Nationalist-Cultural model. Given Ukraine’s Soviet roots,

this form of authoritarian control and nationalist nature was part of the old model promoted by the

Soviets and is still being transitioned out as Ukraine works towards being a fully free and democratic

society. Controlled for most of the twentieth century by the conservative Communist system, the

media is still learning to operate in a new democratic, economic, political, ideological, and cultural

environment (Press Reference, 2011).

Weaknesses Erik Bjerager, President of the World Editors Forum explained that “one of the roles of a

government is to foster an environment where a free press can flourish by being independent of

governmental, political or economic control” (Aid News, 2012). Unfortunately the Law of Ukraine

“On Printed Mass Media (Press) in Ukraine does not promote this type of an environment. Within

EU countries – there is an expectation that citizens should be part of public debate and that they have

the true rights to be informed. The European Union deploys a public service tradition of the liberal

market model of global communication (Venturelli, 2012a, b) where there is room for the

government to be involved with the media as a provider of a public service to the people. However,

the level of intervention and harassment by Ukraine’s administration is indicative more of control

and manipulation of the media. Within society, journalists serve as the gatekeepers to such

information – and when their ability to properly disseminate important information to the public is

limited there is a significant problem in ensuring a democratic society.

As the government owns many of the newspapers in Ukraine they have the ability to control

the information that is disseminated to the public (Government of Ukraine, 2009). The law’s biggest

weakness is handing this power to Ukraine’s government officials who have a history of corruption

(Lavrov, 2010) and controlling media content to protect their actions. This type of an approach does

not align with the rest of the European Union and causes problems when the models are so different.

Since the EU promotes communications polices geared towards promoting a free society where there

is an expectation that human rights and free expression are granted to all (Council of Europe, 2008),

if the Ukraine continues to function contrary to this expectation, it will be extremely difficult to

achieve compliance to EU policies and expectations and the relationship may drastically dwindle.

ImplicationsSince PACE learned about the various threats towards journalists in countries such as the

Ukraine, the Council of Europe passed “Resolution 1535: Threats to the lives and freedom of

expression of journalists” putting pressure on governments like the Ukraine to take press freedom

seriously (Council of Europe Parliamentary Assembly, 2007). Within this Resolution, the Council

of Europe publically denounced the brutal attacks on Ukrainian journalists such as Ihor Mosiyshuck,

Sergei Yanovski and Lilia Budjurova and expressed its deep concern with the lack of investigative

measures committed to solving such cases, death threats and murder cases against journalists

(Council of Europe Parliamentary Assembly, 2007). The Resolution explained that based on the

record of attacks in neighboring countries journalists in Ukraine “have to work under fear for their

lives and physical safety” (Council of Europe Parliamentary Assembly, 2007). Having journalists

feel that they must fear for their lives for doing their job makes the EU question whether or not

Ukraine is truly committed to developing a true democracy and respecting human rights. In addition,

other actors within the international community are also questioning Ukraine’s commitment to

democracy because of the country’s disinterest in protecting media freedom. The country’s actions

have begun ruining its reputation not only within the EU community but also globally.

Due to international pressure, 11 years after his death, the government of Ukraine responded

to the murder of Georgiy Gongadze (BBC News Europe, 2010). In addition, the government

established a parliamentary ad hoc commission, “to investigate censorship in the media, pressure on

freedom of speech, and obstruction of journalistic activities” (Article 19, 2010). At this time, the

Commission has been functioning at a low level (Article 19, 2010), not showing adequate

commitment by the government to resolve the problems relating to media freedom. These two

measures are not enough to show full commitment to protecting journalists within Ukraine.

RecommendationsFree and independent media is a reflection of a true democracy (Article 19, 2010) and the

Ukrainian Parliament must make decisive action to ensure this exists. This report recommends that

Ukraine must transmute legislation to comply with European and international standards that ensures

respect for freedom of expression and diversity of opinion (Article 19, 2010). This report would

make the following recommendations to help the Government of Ukraine in meeting the demands of

the European Union:

Establish a committee of media experts, consultants and Ukrainian government policy leaders to

develop a strategic plan for transforming Ukraine’s current media legislation including the Law

of Ukraine “On Printed Mass Media (Press) to meet the demands of the EU which promotes

more liberal global communications policies.

The Law of Ukraine “On Printed Mass Media (Press) in Ukraine” should be amended to address

the following priority areas outlined by the Council of Europe in Resolution 1535:

o Under Article 10 of the European Convention on Human Rights (ECHR), “Freedom of

expression and information in the media includes the right to express political opinions

and criticize the authorities and society, expose governmental mistakes, corruption and

organized crime…”(Council of Europe Parliamentary Assembly, 2007). This report

recommends that in order to ensure journalists can act freely there must be an emphasis

in the language of the law stating the actual desire to protect the safety of journalists to

speak out against all matters freely; including the operations of the government and acts

of government leaders.

o To support the demands of Articles 2 and 10 of the ECHR (Council of Europe

Parliamentary Assembly, 2007) this report recommends the addition of language in the

law establishing an official monitoring system to investigate former/current attacks on

Ukraine’s journalists; members of NGOs and civil society should be a part of this system

to oversee fairness of investigations.

o In addition, language in the law should include the ability for authorities to be held

accountable when failing to protect the freedom of expression of journalists or when

failing to act/investigate or prosecute;

To ensure success of such a system, Ukraine’s judges, law enforcement

authorities and police should be trained on better respecting media freedom.

Conclusion While press freedom is guaranteed by Ukraine’s Constitution and the Law of Ukraine “On

Printed Mass Media (Press) in Ukraine”, journalists have come under significant pressure from the

government over the past decade; including threats against their lives, kidnappings, beatings and

murder. As the country hopes to enter the European Union, policy reforms must be implemented to

address such issues as the EU and the international community’s perception of Ukraine’s

commitment to ensuring press freedom reduces. The Law of Ukraine “On Printed Mass Media

(Press) in Ukraine should be amended to include language emphasizing the safety of journalists and

their right to carry out their work without threats to help the government of Ukraine salvage its

reputation in the international community.

Works Cited

European Union. EU-Ukraine. Brussels, 2012. Web. Retrieved from http://eeas.europa.eu/ukraine/index_en.htm

Pifer, Steven. “Can Ukraine Join Europe as Yanukovych Moves Away from EU Values?” Brookings Institution 28 July 2011. Web. 18 June 2012. Retrieved from http://www.brookings.edu/research/opinions/2011/07/28-ukraine-pifer

“Attacks on the Press 2010: Ukraine.” Committee to Protect Journalists 15 February 2011. Web. 18 June 2012. Retrieved from http://www.cpj.org/2011/02/attacks-on-the-press-2010-ukraine.php

European Commission European Neighbourhood Policy. EU-Ukraine ENP Action Plan. Brussels, 2005. Web. Retrieved from http://ec.europa.eu/world/enp/documents_en.htm

“Press Freedom Index 2010.” Reporters Without Borders 20 October 2010. Web. 18 June 2012. Retrieved from http://en.rsf.org/press-freedom-index-2010,1034.html

Council of Europe Parliamentary Assembly. Resolution 1535. Brussels, 2007. Retrieved from http://assembly.coe.int/main.asp?Link=/documents/adoptedtext/ta07/eres1535.htm

“Joint statement on threats to media freedom in Ukraine.” Council of Europe 9 December 2011. Web. 18 June 2012. Retrieved from http://assembly.coe.int/ASP/NewsManager/EMB_NewsManagerView.asp?ID=6919&L=2

“Merkel Presses Visiting Ukraine President On Press Freedom.” Radio Free Europe 30 August 2010. Web. 18 June 2012. Retrieved from http://www.rferl.org/content/Merkel_Presses_Visiting_Ukraine_President_On_Press_Freedom/2143527.html

“New report: No justice for journalists in Ukraine, Belarus and Russia.” International Media Support 6 August 2011. Web. 18 June 2012. Retrieved from http://www.i-m-s.dk/article/new-report-no-justice-journalists-ukraine-belarus-and-russia

Government of Ukraine. Constitution of Ukraine. Kyiv, 1996. Web. Retrieved from http://gska2.rada.gov.ua/site/const_eng/constitution_eng.htm

Government of Ukraine. The Law of Ukraine On Printed Mass Media (Press) in Ukraine. Kyiv, 2009. Web. Retrieved from http://www.medialaw.kiev.ua/en/laws/laws_local/81/

Venturelli, Shalini. 2012 a. Global Communication Policy Models [6].

Venturelli, Shalini. 2012 b. Participatory Public Space Lecture 4. [3, 7]

DeLong, Rick. “Ukrainization: Issues and Arguments.” Try Ukraine 12 November 2011. Web. 28 June 2012. Retrieved from http://www.tryukraine.com/society/ukrainization.shtml

“Ukraine Press, Media, TV, Radio, Newspapers.” Press Reference 20 April 2011. Web. 28 June 2012. Retrieved from http://www.pressreference.com/Sw-Ur/Ukraine.html

Harris, Brian. “Freedom of Expression.” Regulatory Law 08 September 2009. Web. 18 June 2012. Retrieved from http://regulatorylaw.co.uk/Freedom_of_expression.html

Council of Europe. Article 10 of the European Convention of Human Rights - Freedom of expression and information. Brussels, 2008. Retrieved from http://www.coe.int/t/dghl/standardsetting/media/

“Georgiy Gongadze murder tied to late Ukrainian minister.” BBC News Europe 14 September 2010. Web. 18 June 2012. Retrieved from http://www.bbc.co.uk/news/world-europe-11297880

“Ukraine: ARTICLE 19 and IMS Call on Parliament to Address Media Freedom.” Article 19 9 September 2010. Web. 18 June 2012. Retrieved from http://www.article19.org/resources.php/resource/1611/en/ukraine:-article-19-and-ims-call-on-parliament-to-address-media-freedom

“International delegation expresses press freedom concerns in Ukraine.” AidNews 3 April 2012. Web. 18 June 2012. Retrieved from http://aidnews.org/ukraine-international-delegation-expresses-concern-about-press-freedom/

Lavrov, Vlad. “Transparency International: Ukraine's judiciary most corrupt in the world.” Kyiv Post 9 December 2010. Web. 28 June 2012. Retrieved from http://www.kyivpost.com/content/ukraine/transparency-international-ukraines-judiciary-most.html