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A number of court decisions threatens freedom of speech - human rights activists

19.11.2020, 16:56

A number of human rights NGOs and members of the media community are seriously concerned about the quality, proportionality, legality and fairness of court decisions in cases targeting the journalists, editions and Internet users in Ukraine. 

This is said in the statement on the threat to freedom of expression due to non-compliance with international human rights standards of national jurisprudence.

The authors of the statement pointed out that the courts have been more frequently issuing the decisions obliging the investigative journalists to refute information they had proved in their journalistic investigations. As, to cite an example, this was the case of proceedings against the team of journalists of the program "Our Money with Denis Bigus" instigated on the claims of those involved in their investigations : former high-ranking official Serhiy Semochko and the Hladkovskys - the court ordered to refute "evaluative judgments" based on witness’s words and official documents, which is contrary to the case law of the European Court of Human Rights.

"As human rights defenders and journalists, we often appeal to international standards for the protection of human rights and freedom of speech. According to these standards, one of the key arbiters to guarantee the protection of constitutional rights and freedoms from political or any other influences and restrictions is independent judiciary. 

Improperly motivated and questionable in terms of compliance with national legislation of Ukraine and international human rights standards, the court decisions that restrict the exchange of information, opinions and ideas and do not protect the legitimate rights and interests of journalists engaged in legitimate professional activities have a "cooling effect" on freedom of speech and pose a threat to the country's democratic development, "the statement said.

Here is the full text of the statement:

Statement on threats to freedom of expression due to non-compliance with international human rights standards of national jurisprudence  

We, human rights defenders and members of the media community, express serious concern about the quality, proportionality, legality and fairness of court decisions in cases against journalists, editions and Internet users in Ukraine. 

We draw the public's attention to cases where courts while issuing their decisions indulged in abuses of anti-defamation legislation and ignored the case law of the European Court of Human Rights and international standards for the protection of freedom of expression. As a result, the judicial practice is developing in Ukraine, which poses a threat to democracy and does not comply with either the Constitution of Ukraine or the international obligations of our state in the protection of human rights and freedoms.

In particular, court decisions have recently increased, according to which investigative journalists must refute information about the facts proved in journalistic investigations. For example, in cases against the team of journalists of the program "Our Money with Denis Bigus" on the claims of those involved in their investigations - former high-ranking official Serhiy Semochko and the Hladkovskys - the court ordered to refute "evaluative judgments" based on witness’ words and official documents, contrary to the case law of the European Court of Human Rights. The court also forbade to divulgate the names of those involved in high-profile criminal cases related to corruption, despite the direct provision of the law on public interest, which prevails in this case.

Also outrageous is the recent decision as to an unapproved publication by former high-ranking official Andriy Portnov of the personal data of the drivers of the investigative journalists' team of the Skhemy program. Although the publication of detailed confidential information on the Internet has justifiably posed a risk to the safety and lives of journalists, the court not only dismissed the lawsuit against the disclosure of this information in public, but also charged to recover lawyers’ fees to the benefit of Andriy Portnov. 

Human rights activists have repeatedly criticized the extrajudicial practice of blocking websites and web resources, introduced by decrees of the President of Ukraine since 2017. But even in cases where the restriction of information or a site on the Internet was due to a court decision, the quality of justification for such measures was questionable. In the cases against the Enigma platform, informator.news, the Korrespondent website and others, "intellectual property rights that arise from Internet users when using web resources" have been seized. The court did not explain which content on these websites directly infringed "intellectual property rights", what property was in question and how it was acquired by Internet users.

In the case of C14's lawsuit against Hromadske Television through a publication in which C14 was described as a "neo-Nazi" organization, the court, relying almost exclusively on the results of the linguistic examination, decided to oblige the journalists to refute the information. Despite doubts about the legality and validity of the conclusion of linguistic experts by media lawyers and human rights activists, the court in its decision in this case did not take into account other arguments of the parties contrary to the case law of the European Court of Human Rights.

Also, the recent court ruling in favor of MP Viktor Medvedchuk in the case against Vakhtang Kipiani and “Vivat” publishing house on the ban on distributing the book not only caused a wave of public outrage, but also justified criticism from media lawyers. In particular, in this case, the court did not distinguish between facts and evaluative judgments, and ignored the importance of information for public discussion. This decision was another alarming signal as to condition of  protection of freedom of artistic expression in Ukraine.

As human rights defenders and journalists, we often appeal to international standards for the protection of human rights and freedom of speech. According to these standards, one of the key arbitrators who must act as a guarantor of the protection of constitutional rights and freedoms of citizens from political or any other influences and restrictions is the independent judiciary. 

Inadequately motivated and questionable in terms of compliance with national legislation of Ukraine and international human rights standards court decisions that restrict the exchange of information, opinions and ideas and do not protect the legitimate rights and interests of journalists engaged in legitimate professional activities, have a "cooling effect" on freedom of speech and pose a threat to the democratic development of the country.

The statement was signed by the ZMINA Human Rights Center, the Human Rights Platform, the Institute of Mass Information, the Anti-Corruption Research and Education Centre (ACREC), the Digital Security Laboratory and the Blueprint for Free Speech.

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