Defamation as means of illegal influence on court and investigation in Ukraine

 Editor’s Note: The following is the
English-language translation of “The Technology of Defamation,” an opinion piece
by First Deputy General Prosecutor Renat Kuzmin published on March 16 by Kyiv-based
Law and Business week.

 

The relevance of this topic is
stipulated by the threatening tendency to use the phenomenon of defamation for
illegal pressure on court and investigation in Ukraine that, having reached a
dangerous size, negatively influences the efficiency of the whole system of
justice functioning.

Defamation (from Latin diffamatio
– calumny, slander) is traditionally understood as public dissemination of real
or invented data that humiliate honor, dignity and business reputation of a
citizen or organization, disgracing in press aimed at exertion of an influence
on fulfillment of their duties. This act is regarded as a crime in the criminal
legislation of many countries.

Defamation was known to the legislation of pre-revolutionary Russia as
disclosure of the information in press about private life or public official or
mentioning such a condition that may damage his or her honor, dignity or good
name. In such a form defamation was a means of protection not only from
intrusion into a private life of citizens but also from slander of actions of
public officials. Thus, the notion nucleus of term defamation pursuant to the
legislation of that period was close to libel.

Modern international legal norms fixing the principle of the rule of law
ban the arbitrary or illegal intrusion into a personal or family life of a
person, illegal encroachment on his or her honor and reputation and declare
everybody’s right to protection from such intrusion and such encroachments.

That’s why it isn’t weird that the legislation of many states all over
the world defines defamation as a crime. In criminal law understanding this
phenomenon as a rule is considered to be unsubstantiated statements or
dissemination of facts marring reputation.

Criminal liability for defamation is provided for by the criminal codes
of such European states as Austria (Article 111), Belgium (Chapter V of the
Penal Code) Italy (Article 595), Portugal (Article 180), Croatia (Articles 199,
199-2, 200-1, 200-2), Finland (Chapter 24, Articles 9, 10), Denmark (Article
267), Norway (Chapter 23, Articles 246, 247,248), Brazil (Article 139) and
others.

The liability for defamation is provided for by the French Press Law of
1881: “Any allegation or imputation of fact striking a blow at the honour or
the consideration of a person or a body to which that fact is imputed is
defamation. Direct publication or by means of reproduction of such an
allegation or such imputation shall be punished even if it is made in the form
expressing doubt or if it concerns a person or a body whose names aren’t called
directly but their identification is possible through discourse, cries,
menaces, written or published, incriminated placards or posters”.

Article 186 of the Criminal Code of Germany envisages liability of a
person who asserts or disseminates a fact related to another person which may
defame him or her or negatively affect public opinion about him or her, unless
this fact can be proven to be true, in the form of imprisonment up to two
years. Article 188 provides for a sanction for defamation of persons involved
in political activities: “If a crime of defamation is committed publicly, in a
meeting or through dissemination of written materials against a person involved
in the popular political life based on the position of that person in public
life, and if the crime may make his public activities substantially more difficult
the penalty shall be imprisonment from three months to five years”.

Chapter V of the Criminal Code of Sweden defines that the penalty for
pointing out someone as a criminal or as “having a reprehensible way of living,”
or of providing information about him or her “intended to cause exposure
to the disrespect of others” is a fine for defamation and gross defamation
has a penalty of a fine or up to 2 years in prison.

Article 212 of the Criminal Code of Poland reads: “Whoever imputes to
another person, a group of persons, an institution or organizational unit not
having the status of a legal person, such conduct or characteristics that may
discredit them in the face of public opinion or result in a loss of confidence
that is necessary for a given position, occupation or type to activity shall be
subject to a fine, the penalty of restriction of liberty or the penalty of
deprivation of liberty up to one year. If the perpetrator commits the act
through the mass media, he or she shall be subject to a fine, the penalty of restriction
of liberty or the penalty of deprivation of liberty up to two years.”

The Criminal Code of Albania envisages maximum penalty of up to 2 years
of imprisonment (Article 239) for insulting public officials. Intentional
defamation committed toward the President of the Republic is punishable by a
penalty of up to three years of imprisonment (Article 241).

Article 184 of the Criminal Code of the Czech Republic defines
defamation as a crime and Article 184-1 envisages imprisonment up to 1 year and
in case of use of press, TV, radio and other networks the penalty is
imprisonment up to 2 years.

The penalty for defamation is up to 7 years of imprisonment in the
Southern Korea.

The European Court of Human Rights showed a tough stance, condemning
defamation as an attempt to discredit the court and state authorities by
journalists. It is a famous case Barford
versus Denmark
(1989). Mr.
Barford, a journalist was sentenced for publishing an article where he criticized
a judgment. The journalist believed that the judges didn’t have the right to
try a case as far as they were to be challenged. The journalist only doubted
the legality of the judgment and hinted that the court acted upon the
instruction of the government of Denmark. The European Court of
Human Rights recognized that the Danish court justly convicted the journalist for
defamation and Mr. Barford’s statements about illegitimacy of the judicial judgment
were called serious accusations that diminished public respect towards the
judges. Herewith, the European Court mentioned that the journalist didn’t have
the right to resort to personal attacks against judges. Moreover, the hint –
accusation formulated by Mr. Barford didn’t contain any proofs that two
mentioned members of the court acted exactly upon government’s instruction. Due
to it the European Court concluded that Denmark
acted legally protecting the reputation of the members of the court and the
authority of justice when sentenced the journalist for defamation
.

Divine nature of the judiciary was noted in the Scripture text: “You came down on Mount Sinai; you spoke to
them from heaven. You gave them regulations and laws that are just and right,
and decrees and commands that are good.”
The Bible teaches about fairness
of justice: “Judge between your servants,
condemning the guilty by bringing down on their heads what they have done, and
vindicating the innocent by treating them in accordance with their innocence
…”[2] The
origins of the criminal law and criminal procedure also date back to the
Scripture text: “It is unthinkable that
God would do wrong, that the Almighty would pervert justice
. There is no deep shadow, no utter darkness,
where evildoers can hide.”

A famous pre-revolutionary scholar, professor M.Rozin mentioned that the
strength of the judiciary depends on many factors, among which there are clear
organization, real trust of the population to its institutions and bodies, real
recognition of their authority by the population.

Today we have every reason to refer defamation to the methods of
pressure on court and investigation. Malignancy of the pressure on court was
studied by many authors both scholars and practicing lawyers, prosecutors and
judges, but practically all of them regard any intrusion into administration of
justice illegal, almost criminal. “Influencing the court is always illegal,” premature and
biased comments of the facts in mass media are also defined as illegal. Some
authors think that new forms of pressure on court and intrusion into judicial
activity appeared in Ukraine – so called rally law or the law of “maidan”
(square), MPs’ law etc., attempts to use the influence of the mass media during
certain trials are emphasized.

It’s worth reminding that when particularly delicate cases are tried in
the USA in order to ensure the protection of the jurors from public opinion,
they are isolated in the hotel till the end of the trial and announcement of a
verdict. During their stay in the hotel they are banned from watching TV
reporting regarding given case, and they are delivered to the courtroom and
from the courtroom by special buses with covered windows in order to prevent
them from seeing newspapers on the stands or protesting demonstrators by
chance.

Generally the methods of pressure on court and investigation may be
classified as follows:

1.    Street rallies,
protest actions, use of the crowd effect;

2.    Threats,
intimidations, murders;

3.    Discrediting judges,
prosecutors, judicial and law-enforcement system, discrediting current
authorities;

4.    Artificial molding
of public opinion.

Every one of them is based exactly on defamation as the most effective
means of pressure on judges and prosecutors.

1.    Street rallies,
protest actions, use of the crowd effect.

The studies of sociologists contain certain regularities, basic provisions
of crowd psychology dealing with problems of collective behavior. Gustave Le
Bon formulated the sociological law how to control the crowd behavior (“the law
of the mental unity of crowd”) which made it possible to consider a crowd as a
special social formation subject to action of certain regularities. Tactics
that is based on crowd control brings sometimes a big effect. G. Le Bon
formulated classical methods how to influence the masses of people and
characteristics of a crowd: “Suggestibility,
repetition and contagion
”.[3]
Organized crowd becomes the most important resource of attainment of power. In
A.Golovkov’s opinion, “Technology of
building a nicely organized crowd is a key element of the whole Soros’s
revolutionary mechanics. Crowd is a disposable mechanism that is why it
requires big but one-time expenses. There is no need even to pay to the
majority of those “who protest against anti-national regime” – they do it quite
voluntarily. They need first of all to pour out their anger against surrounding
bad reality
”.[4]

It is worth noting, that once the Supreme Court of Ukraine influenced by
the crowd, street rallies, protest actions near the court building decided to
hold re-voting of the second round of elections of the president all over the
territory of the country. Actually, the Supreme Court made Yushchenko the
president when appointed this unique “repeated second round of elections”,
using but for the law the considerations of political expediency and position
of the participants of the rally near the court building. In this case this
doubtful decision of the Supreme Court of Ukraine from the point of view of the
law and the Constitution was complied with by all parties to the conflict. In
the situation with the Tymoshenko trial we observe the analogous tactics: both
public appeals to non-execution of the judicial judgment and street rallies,
instigation of people to illegal actions near the court building. This threatening
tendency may ruin the system of justice in Ukraine unless it is stopped. It’s
interesting that Tymoshenko’s followers urge the society not to execute the judicial
judgment that found her guilty of the crime, they call this decision “illegal”,
“selective” and somehow else. In other words, it is suggested not to execute
the decision they don’t like, and it is required to execute the decision in
their favor by everybody without an exception without demur. It is such “a
selective lawfulness.” The question appears is “selective lawfulness” better
than “selective justice”?

In this very context it’s worth recollecting the Pavlychenkos case. The
Council of Judges of Ukraine addressed the organizers and participants of
public actions “Free Pavlychenkos” with a call to stop mass actions as far as
it considers them fully fair as an attempt to exert pressure on the court:
“Pursuant to the Constitution and laws of Ukraine, the courts try the cases
transferred to them impartially, based on the proofs furnished by the defence
and prosecution parties according to the law. The review of the judicial judgments
is possible only in the way provided for by the procedure law. Holding of mass
actions aimed to incline the court to take the desired decision is nothing else
but the attempt to exert pressure on the court and intrusion into the activity
of administration of justice that is inadmissible in the democratic society” –
reads the address made public on the official portal of the judicial authority
of Ukraine.

Together with it the judicial system of America is capable of resisting any
pressure on the court, in particular with the use of the crowd effect and
intrusion of the influential politicians. I will remind you a famous case of
Sacco and Vanzetti, the activists of the movement for the rights of emigrants,
workers- anarchists, of Italian extraction who lived in the USA. These two
persons became largely famous after they had been charged with murder during
robbery of a cashier and two security officers in 1920. The witnesses in the
case gave contradictory testimonies, proof of their guilt caused substantiated
doubts. No expertise gave categorical conclusions. The case was given publicity
immediately, it was raised at the international level. The activists created
the Committee of protection of Sacco and Vanzetti, the campaign started against
the brought charges in the press. But the campaign of protection of both public
figures reached its pinnacle after the jury trial had announced their verdict,
found them guilty and sentenced to death penalty. However, the court didn’t
manage to eliminate the discrepancy in the proofs, witness testimonies.

Pope Pius XI, Albert Einstein, Romain Rolland,
Theodore Dreiser, other famous figures supported the repeal of a sentence. They
sent relevant telegrams to U.S. President Calvin Coolidge. Strikes, protest
demonstrations began. Demonstrators attempted to take the prison by storm and
only timely arrival of Marine Corps prevented from this. During the appeals
Vanzetti managed to write and publish two books in prison. Six years passed. In
the meantime some professional criminals in different U.S. prisons
pleaded guilty of the crimes Sacco and Vanzetti had been convicted for. But
everything was in vain. All claims were dismissed, the verdict remained
unchanged. Appeals confirmed the verdict of the jury trial. On August 23, 1927,
both convicts were executed.

2.    Threats,
intimidations, murders.

Murders of judge of Frunzenskyi district court in the city of Kharkiv
Volodymyr Trofimov and the members of his family, the murder of judge Serhii
Zubkov, threats towards judges and prosecutors from Y.Tymoshenko during the
trial – all these are horrible displays of neglecting the laws and human
dignity and attempts to intimidate the judges and prosecutors, demoralize
law-enforcement officers and public.

Moreover, some European politicians threaten the country as a state if
judges and prosecutors don’t comply with their requirements to free convicted
criminals Tymoshenko and Lutsenko. Thus, President of the European People’s
Party Wifried Martens stated in 2011 that further cooperation of Ukraine with
the European Union is possible only on condition that the political opponents
of the Ukrainian authorities are released from custody, in particular Yulia
Tymoshenko: “I would like to emphasize
that in future the organization of any meetings of Yanukovych with the EU
representatives must be considered only on condition that the Ukrainian
authorities implement a specific plan of measures to solve this inadmissible
situation. Such a plan shall include the release of all political prisoners,
including Yulia Tymoshenko and must secure their right to participate in the
next elections. Any further steps in the EU-Ukraine relations will depend on
the implementation of such a plan
”. EPP warned in its resolution on Ukraine
that was adopted on December 7, 2011 that no elections in Ukraine will be
considered as fair, if the leaders of opposition, particularly Yulia Tymoshenko
and Yurii Lutsenko aren’t released. H. Clinton wrote about Tymoshenko as a key
to productive bilateral Ukraine
– USA
relations in her letter to convict Tymoshenko: “Our position remains unchanged: you should be immediately and
unconditionally released, as well as other former members of your government”.

In Mrs. Clinton’s opinion, prosecutions of Tymoshenko “undermine relations with the United States”.

The adoption by the U.S. Senate of a resolution regarding Ukraine #466 (S.RES.466), which mentioned sanctions
against persons implicated in Tymoshenko’s imprisonment, may serve an example
of intimidation.[5]
The provocation and an attempt to illegally arrest me, First Deputy Prosecutor
General of Ukraine, in the USA[6] can’t
be omitted. It was aimed at stopping investigation of case of MP Yevhenii
Shcherban’s murder and intimidating investigators and judges of Ukraine.

3.   
Discrediting judges, prosecutors, judicial and
law-enforcement system, discrediting current authorities.

It’s worth remembering the list of offensive
expressions towards the court and prosecutors pronounced by Y.Tymoshenko during
the trial. She said to the court: “I think that you shouldn’t be in the court as
a judge …”, “…You’re a unique product of system that is sitting, violating the
law and moralizing…”, “…You’re a monster…”, “…a marionette in the gown; I’m
sorry for kirieievs and other primped persons; … master of trial, …I don’t
stand up before this mafia in gowns; …I suggest introducing new dimensional
unit in the judicial proceedings first rodion (kirieiev) – the dimension of
complete absurdity, dependence, incompetence and predetermination of a judge;
…the judge doesn’t deal with a case. He’s just telephonist Cat. …He received
instructions from Bankova Street all the time, couldn’t execute them and was
sweating very much”, “…I think that the only way out for you as a judge is to
challenge yourself right now and simply frankly saying to protect yourself from
that shame that falls today on president, prosecutors…Be aside this organized
criminal grouping…” She said to prosecutors: “fascists”, “Mr. prosecutor
resembles more a hangman, than a prosecutor…”, “…The bill of indictment itself
is a shame of the prosecution service. How can I comment on it if basically
gobbledegook is written there… Speculation, prosecutor’s boorishness…”

And here is direct speech of her lawyer,
S.Vlasenko, in magazine Korrespondent (# 10, dated March 15, 2013): “I haven’t
encountered with a single decent judge for these several years, be it Kirieiev
(passed sentence on Tymoshenko), Tsarevych (presiding judge in case of Y.
Shcherban) or judges of the Higher Specialized Court (which confirmed the lawfulness
of Tymoshenko’s sentence). Unfortunately, I have to say that they are selected
riffraff. They are people without morals and conscience.

Mr. Mishchenko who is the Head of the Higher
Specialized Court is a    beast. And it is
soft characteristics of a person, who … confirmed…Tymoshenko’s sentence…”   

I intentionally cited word-for-word
expressions of the convict and her defence attorney for readers to understand
how certain “democrats” behave in the court and the pressure under which judges
and prosecutors work in Ukraine.

We may include the “Nemyria–Vlasenko–and–Yevhenia
Tymoshenko effect” into a separate dimension of juridical reality of the given
method of pressure on court. They managed to attract the attention of Western
politicians at the level of international contacts and to discredit the system
of justice at the international level. Having studied this effect, one may see
its fundamental principle that consists in the results of the technological
work of political PR that has nothing to do with jurisprudence. By the way, the
Tymoshenko case is also justly referred to the category of myths and
conjectures which the EU is still indulging in. Herewith, the EU
representatives themselves don’t want to go into the heart of the problems of
our state, of objective investigations of acts committed by Mrs. Tymoshenko.
Unfortunately, they also resort to defamation. Let’s recollect how Anders
Aslund, a senior fellow at the Peterson Institute for International Economics commented
on my speech in the framework of 9th
Yalta Annual Meeting entitled “Ukraine and the World: Overcoming
Tomorrow’s Challenges Together”: “He (prosecutor) looked like a gangster, behaved like a gangster and
talked like a gangster
”. Former U.S. Ambassador to Ukraine Steven Pifer
distinguished himself in analogous comment. If we use the technology of “mirroring answer”, it is worth asking these
apologies for politicians whether their such fiery speeches are provoked by the
fact that one used to work and another works in the Brookings Institution where
such person as V.Pinchuk is a member of board of trustees, whose father-in-law
is L.Kuchma whom the whole world accuses of Gongadze’s murder? It is known that
the Prosecutor General’s Office of Ukraine investigates a case where the
version of implication of L. Kuchma in this ordered murder is being checked. And
aren’t these Aslund’s and Pifer’s speeches an attempt to discredit the
prosecutor in order to influence the investigation in Kuchma’s interest?!

Other politicians often use defamation in
their rhetoric too.

Chairman of the Committee on Foreign Affairs
of the European Parliament Elmar Brok recently stated that “Kuzmin could prove Tymoshenko is responsible
for the spots on the moon as well
: “And if it goes on like this, it will reach Mr. Kuzmin. We will have to
take measures against those who systematically ruin the principles of the state
governed by the law
“. Using the same methods which are used by these
European politicians, Elmar Brok might be asked how he managed to evade
criminal liability and to preserve his MP’s immunity when in 2010 German
law-enforcement authorities sent a request to the European Parliament for
waiver of his MP’s immunity due to charges of tax evasion. Chairman of the
European Parliament’s Foreign Affairs Committee Elmar Brok might also be asked about
his leisure accompanied by the
girls from escort service and huge amount of alcohol in the club in
Troyeshchyna in Kyiv. But professional ethics doesn’t allow prosecutors to
stoop to the level of these politicians and to use their own methods against
them. That is the reason why prosecutor’s rhetoric doesn’t have even hints of
such behavior unworthy of lawyer.

4.   
Artificial molding
of public opinion

Artificial protest actions under motto “Free
Yulia,” molding society’s contempt of the whole judicial branch of power and
tries of politicians to influence the results of the trial are bright examples
of illegal pressure on court and prosecution service aimed at influencing the judgment
in Tymoshenko’s interest.

Even at ancient times contempt of court was
considered to be a serious crime. Everybody knows the story very well when in
103 B.C. tribune Gaius Norbanus brought to liability former consul Caepio for
crushing Apollo’s temple in Gallia and for unsuccessful fight with cimbri where
the Roman troops sustained huge losses. In order to get Caepio convicted Norbanus
provoked a number of brutal threats and violence against judges and public
officials. National indignation in the court was a big crime in Rome and nine
years later young Sulpitius Rufus having assumed public activity started
demanding trial over Norbanus for such riots. He accused him under Apuleius law – affront
against greatness as mutineer. Sulpitius’s speech in this case was remarkable
for extraordinary strength, he provoked not a court case, but flame, burst of
indignation. The only reason why Marcus Antonius won the case was, according to
him, that he addressed not the mind but the heart of judges; he didn’t explain
the case but played with their feelings.[8]

As of today for such a behavior, for the policy of scornful contempt of
court, law-enforcement system which Tymoshenko’s defence is demonstrating all
the time, the penalty of imprisonment is provided for in Europe. The
Anglo-Saxon system of law envisages criminal liability for contempt of court.
In addition, the important tool of strengthening courts and judges’ authority
is judicial prosecution for contempt of court. Its interpretation is quite
wide. Any intrusion in administration of justice: premature publications in the
press, negotiations with jurors, pressure on parties and witnesses,
impermissible behavior in the court, disobedience of court order – all this may
be considered as contempt of court. The reason is that the authority of the trial
is supported by centuries-old tradition of public respect towards the court as
an important state institution in the states with the Anglo-Saxon legal system.

British Contempt of Court Act of 1981 introduced “the
strict liability rule” whereby conduct may be treated as a contempt of
court as tending to interfere with the course of justice in particular legal
proceedings regardless of intent to do so. The situation that was recently
given publicity was that the British court sentenced oligarch Mukhtar Abliazov
who is accused of embezzlement of at least 5 billion American dollars of one of
the biggest banks of Kazakhstan to 22 months of imprisonment for contempt of
court.

According to the U.S. federal law (U.S. Code, Title 18, Chapter 21) the
court punishes with a fine or arrest at its discretion for contempt of court. That’s
why the norms of liability for offence in the sphere of justice is not only an
important guarantee of the independence of the court but also are of preventive
nature and should protect from intrusion under fear of penalty.

I would like to give an example of efficiency of application of these
norms in practice in the territory of the USA. FBI agents confiscated during
investigative actions from an American citizen two computers and five external discs,
but couldn’t have had access to data they contained because the data were
ciphered with the help of a relevant program. During the trial the jury trial
decided that the defendant should give data in the deciphered form. The
defendant answered with a refusal having referred to 5th amendment
of the U.S. Constitution, which mentions that no person shall be compelled in
any criminal case to be a witness against himself. In
response the court decided to arrest the defendant with formulation “for contempt
of court.”

Undoubtedly the profession of a lawyer has to be of high moral values
and obedience of ethical rules by all lawyers is their obligation.
Unfortunately, we have many sad examples when lawyers show disrespect towards
generally recognized requirements of the profession. When a MP and a politician
becomes a defense attorney and starts using political methods, legal defense is
distorted and turns into a political farce.

Widely spread saying that politics is a dirty business is confirmed in
such a behavior (although the words of famous Winston Churchill are known: “Politics
are not dirty, the people make it so”).

Instead of studying the case, preparing the proofs denying the facts the
prosecution refers to, against prosecutor’s arguments, court proofs of presence
of crime in the actions of the defendant, the politician-defence attorney has
worked out the standard question-answer: why president or prosecutor doesn’t
live the way Tymoshenko’s lawyers want them to live? It is understood that the
tries directed only at marring, defaming the adverse party not only discredit the
Bar but the client of such a defence attorney remains deprived of legal
assistance, juridical defence.

In the end, it’s worth noting, the tool of defamation is attraction of
the attention of wide circle of public that may secure pressure of public
opinion on court. In the view of the absence of professional and decent
strategy and tactics of the defense, the defense attorneys tried to make this
trial as more public as possible for exerting pressure on the court.
Interestingly, before the trial started the defense party had completely
opposite view regarding these issues. For instance, for obtaining PhD degree in
Law the defense attorney of Y.Tymoshenko defended a position in his thesis that
“it’s inadmissible for public to directly participate in the proceedings: to
express thoughts, statements”; “that “chance audience” no matter how large it
may be, can’t bring substantial benefit either to public or to justice in
particular.”

“The use of technical means during fixation of the trial may negatively
influence the objectivity of the trial and, besides, may damage the interests
of justice by the fact that shooting, video-, tape recording are effective,
“persuasive” means of manipulating of public opinion.” Tymoshenko’s defence
attorney substantiates in his thesis absolutely correctly, that “the court
isn’t the place for debates and rallies, that’s why the use of posters,
banners, slogans by public is also inadmissible. Such actions are forms of
influence on court and participants to the trial”.[9] It’s
interesting that in practice his theory developed into posters, banners,
rallies and debates that pursued the aim to wreck the hearing and exert pressure
on the court. It appears that it wasn’t the prosecutor, but Tymoshenko’s
defence attorney who wrote in due time about negative and destructive influence
of the substitution of roles in criminal proceedings: “In case public opinion exerts
pressure on the court, the result, as a rule, is that the court takes an
illegal decision and the judicial procedure is distorted. As far as directing
all efforts to “its defence”, the court involuntarily sidelines the main task:
the search for truth and legal just settlement of the legal dispute.” The pressure
of public opinion on the court makes its undesired contribution to the amount
of illegal influence the judges in our country are under.” We may trace that
having defined in his research that “the consequence of fall of authority and
trust, absence of information or its distortion is the growth of elements of
spontaneity, uncontrollability in the public processes, blowing of emotions,
appearance of spirit of disobedience of law, aspiration for exerting pressure
on the court, desire to resolve criminal law dispute with illegal means”,
Tymoshenko’s defence party made everything possible to embody such a
consequence.

Thus, we come to conclusions that recently new practice of the use of
defamation appeared in the criminal proceedings in Ukraine for exerting
pressure on court and substituting the roles of parties in the proceedings,
involving politicians in the judicial proceedings that lead to political
methods of defence and endanger the efficiency of the justice system
functioning in general.

It is connected predominantly with decriminalization of articles on
liability for libel and insult when the new Criminal Code of Ukraine was approved
in 2001 in pursuance of commitments before the Council of Europe, set forth in
Resolution 1239 (2001) “Freedom of expression and the functioning of the
parliamentary democracy in Ukraine” and Recommendations 1513 (2001) of the
Parliamentary Assembly of the Council of Europe ”Honouring of obligations and
commitments taken by Ukraine during accession to the Organization.”

The Criminal Code of Ukraine of 1960 provided for the liability for
libel in Article 125, and for the insult in Article 126. Without qualifying
elements, libel was regarded as a crime that wasn’t of big public danger, and
cases on charges with it belonged to cases of private prosecution.

The main motive for decriminalizing libel was ensuring implementation of
Article 10 of the Convention for the Protection of Human Rights and Fundamental
Freedoms that envisages freedom of expression.

It was notable that Ukraine was among the first countries together with
Bosnia and Herzegovina, Cyprus, Estonia, Georgia, Moldova that decriminalized
libel in due time.

Together with it, despite large-scale condemning by the Council of
Europe, OSCE, UN and a number of other international organizations relevant
norms still exist in the criminal codes of the majority of states, including
member states of OSCE and UN, such as the USA, Germany, France, Italy and
others.

Based on the analysis of the articles on defamation of the criminal
codes of the European states and the review of problems of the justice
functioning in Ukraine I consider it expedient to suggest as a practical
solution of the problem including the article on defamation to the Code on
Criminal Offences that is expected to be adopted at the beginning of 2014,
according to the Prosecutor General of Ukraine.

Besides, I emphasize the necessity to strengthen the authority of the
judicial branch of power, to provide the observance of the principle of
obligatoriness of judicial judgments, to prevent illegal influencing the court,
not to admit the substitution of the roles during the judicial proceedings and
to get the unaware parties to the trial acquainted with the rules of
professional ethics. 

Renat Kuzmin is the first
deputy prosecutor general of Ukraine and has a doctor of laws.

 

 

 

 

 

 

 

 

 

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