On January 16, 2014 the Supreme Council of Ukraine adopted a number of controversial laws and by January 17, 2014 they were signed by the Ukrainian President Viktor Yanukovych. These acts received a great deal of criticism because deputies failed to follow the proper procedure for their approval and because the provisions of the acts restrict fundamental constitutional rights and freedoms, particularly the rights to freedom of peaceful assembly and freedom of speech. One of the laws contains an amendment to the Criminal Code of Ukraine which reads as follows:
Defamation ... should be punishable by a fine up to 50 tax-free minimum incomes, or community service for a term up to 200 hours, or correctional labor for a term up to one year. Defamation in the product that is shown publicly, in the media or on the Internet should be punishable by a fine of 50 to 300 tax-free minimum incomes, or community service for a term of 150 to 240 hours, or correctional labor for a term up to one year. Defamation accompanied with charges of a grievous or special grievous offense shall be punishable by correctional labor for a term of one to two years, or imprisonment for a term of up to two years.Thus, Ukraine re-criminalized defamation after it had been de-criminalized in 2001. The drafters of the amendment hypocritically claim that it is supposed to align the provisions of Ukrainian legislation with European standards. They argue that in 21 states of Europe, defamation is recognized as a criminal offense. However, they are turning a blind eye to the fact that in most countries such laws are rarely applied and "European standards" are, in fact, completely different.
Many human rights institutions, including the Council of Europe and the UN Special Rapporteur on Freedom of Opinion and Expression, have called for the decriminalization of defamation. On October 4, 2007, the Parliamentary Assembly of the Council of Europe adopted Resolution 1577 entitled Towards Decriminalization of Defamation in which it exhorted the member states to "abolish prison sentences for defamation without delay" and stressed that "[e]very case of imprisonment of a media professional is an unacceptable hindrance to freedom of expression and entails that ... journalists have a sword of Damocles hanging over them."
A document investigating ECHR case law on defamation practices provides insight into standards that Ukrainian law should strive to follow. Ukrainian Law "On the Implementation of Decisions and Application of the Case-Law of European Court of Human Rights" implies that Ukrainian legislation should be compatible with ECHR practice. So, it is necessary to take a look at its decisions concerning defamation. In such cases (regarding remarks not containing any hate speech or incitement to violence), it has been stressed by the court that the mere fact that a sanction is of a criminal nature has in itself a disproportionate chilling effect.
In Cumpana and Mazare v. Romania the ECHR noted that "[t]hough sentencing is in principle a matter for the national courts, the court considers that the imposition of a prison sentence for a press offense will be compatible with journalists' freedom of expression as guaranteed by article 10 of the convention only in exceptional circumstances, notably where other fundamental rights have been seriously impaired, as, for example, in the case of hate speech or incitement to violence." Even suspended sentences were considered by the ECHR as unnecessary. For instance, in Şener v. Turkey the court deemed that the decision of the Istanbul State Security Court to suspend the imposition of a final sentence on condition that the journalist did not commit any further offense as an editor within three years had the effect of restricting the applicant's work and reducing the ability to offer the public views which have their place in a public debate.
Pursuant to the amendment, the most severe punishment is applied to defamation accompanied with charges of a grievous or special grievous offense. This charge is punishable by correctional labor for a term of one to two years, or imprisonment for a term of up to two years. The determination of what is a "grievous or special grievous" offense is often manipulated to lessen punishments of officials' wrongdoing. It is commonly known that the level of corruption in Ukraine is extremely high. In the Transparency International Corruption Perceptions Index 2013, Ukraine is ranked 144 out of 177 countries. According to the Criminal Code of Ukraine, certain crimes of corruption could be ranked as grievous or special grievous offenses. Thus, it seems that one of the purposes of this law is to prevent the exposure of official wrongdoing and corruption. The majority of cases will certainly be brought by government officials, civil servants and prominent businessmen, who will use the law as a protection from disclosure of certain shameful facts.
Interestingly, in the explanatory note to the law it is stated that one of the dangers of spreading such phenomenon as defamation in Ukraine is "undermining the authority of the public bodies." It is clear that defamation laws cannot be justified when their purpose is to protect the reputation of public authorities. In this regard it is appropriate to pay attention to ECHR considerations: "[a]lthough the Contracting States are permitted, or even obliged ... to regulate the exercise of freedom of expression, they must not do so in a manner that unduly deters the media from fulfilling their role of alerting the public to apparent or suspected misuse of public power."
According to the amendment, punishments provided for the defamation on the internet and in the media are the same. However, the Special Rapporteur emphasized that the unique characteristics of the internet give the defamed individual the ability to exercise his/her right of reply instantly to restore the harm caused. Thus, types of sanctions which may be deemed legitimate and proportionate for traditional media are often not so for to the internet. The drafters of the law should have taken into account the specifics of Internet publications and established different punishments.
Furthermore, it is well established in case-law of the ECHR that the limits of acceptable criticism are wider when applied to public figures than for private individuals. It would be logical to differentiate the sanctions on the basis of category of person defamed. However, it contradicts the whole purpose of the law which is to decrease the number of journalistic investigations concerning crimes committed by officials. One hopeful deterrent inherent in the law is that the possibility of being prosecuted, arrested by the police and sentenced will decrease the number of publications concerning the misuse of power by public authorities.
Ironically, Ukraine was one of the first countries among participants of the Organization for Security and Cooperation in Europe (OSCE) to decriminalize defamation and protect free speech. Now, the current government is attempting to stifle the EuroMaidan protests and passing laws that restrict fundamental rights, including freedom of expression.
Since the law has been repealed, maybe it is appropriate to a note in the end: "The article was prepared just after the adoption of the discussed Law. On the 28 January, 2014 the Supreme Council of Ukraine repealed a number of 'dictatorship laws,' including one that provided for the criminalization of defamation."
Malyuta is expected to graduate with a Bachelor's degree in Law in June of 2016. He has worked for the Department of Justice in Ternopil, Ukraine, and at the Ternopil City District Court.
Suggested citation: Pavlo Malyuta, Criminalization of Defamation in Ukraine: A Step Towards Europe, JURIST - Dateline, Mar. 27, 2014, http://jurist.org/dateline/2014/03/pavlo-malyuta-ukraine-laws.php
This article was prepared for publication by Emily Osgood, an associate editor for JURIST's student commentary service. Please direct any questions or comments to her at firstname.lastname@example.org