The judiciary needs to return to openness, journalists – to standards

The radicalisation of media space affects the courts. The consequence is that punishments and precautions have become too harsh.

Oleksandr Melnyk, director of the Kremenchuk TV company “Visit”, is accused of killing the former Kremenchuk mayor Oleh Babayev and judge Oleksandr Lobodenko in 2014. Melnyk has been behind bars for seven years, but there is still no verdict. The International Society for Human Rights recently acted as a third party in the “Melnyk vs. Ukraine” case in the European Court of Human Rights. This allows us, as a public human rights organisation, to submit our written opinion on the case to the court.

The former director of the Kremenchuk TV company “Visit”, Oleksandr Melnyk, as well as Oleksandr Kryzhanovskyy, Igor Kunik and Igor Pasichnyi (he has already been sentenced) are accused in the murder case of a judge and Kremenchuk mayor. The International Society for Human Rights has been following the case since 2017. It is one of more than fifty cases on which we conduct independent monitoring. It is quite revealing about the state of justice in Ukraine. In 2020 alone, we recorded more than fifty violations of the rights of the defendants guaranteed by national and international law during this trial. These include pressure on lawyers, violation of the right to defence, ignoring court decisions, improper use or disregard of the practice of the European Court of Human Rights, pressure on the court, violation of reasonable trial terms, torture and humiliating treatment. The ECHR has already issued two decisions on Igor Pasichnyi and Igor Kunik, which found a violation of the right to a court hearing within a reasonable time and that people are being held in custody for too long. This number of violations prompted us to intervene in the process. At the ECHR, we will talk about two main problems: ignoring previous decisions of this court and the automatic extension of the preventive measure.

Unfortunately, decisions of the ECHR are often ignored in Ukraine, even if they concern specific violations in specific cases, or are partially implemented. We will provide the court with an analysis of common reasons and situations leading to violations of the right to freedom, as well as the reasons why national courts neglect specific ECHR judgments.

The radicalisation of media space affects the courts. When the media incites hatred, the courts, responding to public demand, are more willing to apply the harshest types of punishment, the strictest preventive measures. People are kept behind bars unnecessarily and court cases drag on for years. This shows how connected these two spheres – the media and the observance of human rights – are.

The International Society for Human Rights, with the support of the German Ministry of Foreign Affairs, implemented the project “Media, Opinion Formation and Human Rights in the Countries of the Eastern Partnership and Russia”. It covered eight countries – Armenia, Azerbaijan, Belarus, Georgia, Moldova, Germany, Russia and Ukraine. Meetings were held in 22 cities to address the problem of misinformation and hate speech in the media.

In Ukraine, the meetings were held in Kharkiv, Zaporizhzhia and Kyiv. Already during the first meeting, the participants proposed analysing aggressive rhetoric in the Ukrainian media space and creating a “rating of aggressiveness” for the most popular media in Ukraine. This rating is a conventional term for the number of marker words used in the most popular online publications and on the websites of TV channels. These markers are offensive words that are applied to certain categories or individuals. This is particularly true for the theme of war. Obviously, we should already be thinking now about words that unite rather than divide the country, we should not stir up war but heal the wounds, look for common interests and points of convergence.

We identified key insulting words frequently heard in the media. The first group are words of an insulting nature relating to the parties of the conflict: “ukrops”, “vatniks”, etc. The second group includes words such as “fascist”, “propagandist”, “terrorist”, “separatist”, which also carry negative connotations. They particularly characterize people as criminals, as terrorism and separatism are crimes. The third group is “odious” and “scandalous”; these words may indicate the editorial board’s tendency to label people.

It turned out that these words appeared most often in three publications: “Censor”, “Obozrevatel” and “Ukrainska Pravda”. It is interesting that the commentators and authors of these materials used both conditionally “pro-Ukrainian” and conditionally “pro-Russian” words. We can assume that the frequent use of offensive words is indicative of a generally aggressive atmosphere in the media space and a public demand for a black and white picture. This is probably also influenced by the war.

I think it is up to the media, sociologists and politicians to solve this problem. We, as human rights activists, pay attention to it. After all, freedom of speech cannot be absolute. Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms reminds us very well of this. On the one hand, it gives everyone the right to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of borders. But the exercise of these freedoms carries with it duties and responsibilities and may be subject to restrictions or limitations imposed by law and is necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of confidential information or for maintaining the authority and impartiality of the courts.

Communication between the media and the courts has almost ceased. In 2016, after the latest constitutional and judicial reform, the judiciary became more open. A dialogue between the courts and the media began at the forum “Independent Courts and Free Media”. In the last two years, however, communication has mainly revolved around resistance to the new judicial reform and problems with access to trials arising for journalists due to quarantine situation. On the other hand, the courts are under considerable pressure from the media side. This is not a new situation: the Consultative Council of European Judges has long drawn attention to the great pressure that the courts are facing.

We investigated this situation and recommended that the judiciary communicates more with the public, especially in cases of significant public interest. On the other hand, the study revealed a situation typical for all European countries: politicians and media, especially during election campaigns, may use populist or demagogic arguments and deliberately misinform the society by provoking irresponsible criticism of the judiciary. The result is an atmosphere of public distrust of the judiciary. The Consultative Council of European Judges calls criticism as a part of the dialogue but points out the clear line between freedom of expression and legitimate criticism on the one hand, and disrespect and excessive pressure on the judiciary on the other.

There is also a lot of disinformation and undue pressure on the courts in Ukraine, especially by the judiciary, police, prosecutors and civil society organisations. This is evidenced by a study presented by the International Society for Human Rights at the East European Conference on Disinformation in Frankfurt am Main in the report “The Problem of Hate Speech and Media Disinformation in the Judicial Sphere”.

Among the key problems we highlighted were the failure to separate facts from commentaries; the abuse of authority when prominent public organisations publish accusations against the court, indicating that this does not need to be proved; unreasoned “expert opinion”; and the use of aggressive language, such as the assessment of judges and prosecutors as “odious” ones.

Violation of the presumption of innocence in the media remains a problem. Pre-trial investigative bodies support television programmes in which “sentences” are issued on the accused even before the court ruling. This is unacceptable. Sometimes journalists who see only a part of a court session draw erroneous conclusions or present information subjectively. Journalists are taught in universities to separate facts from opinion and their own conclusions, but they often forget this when reporting on trials.

I think the judiciary should return to the principle of openness declared in 2016 and the journalistic community should pay more attention to the violation of journalistic standards and legal principles of trials reporting.

Anton Alexeev, Head of the Information and Analysis Centre of the International Society for Human Rights



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