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Opposition Figure Says Ukrainian Media Law Contradicts European Criteria

Posted on: Wednesday, 22 February 2006, 09:00 CST

The new law on TV and radio broadcasting violates democratic norms, former Ukrainian President, Leonid Kravchuk, has written in an article. Kravchuk, now the leader of the opposition bloc Ne Tak, said that one of the aims pursued by those who drafted the law seems to be establishment of "an unlimited bureaucratic dictatorship". The law contradicts Ukraine's international obligations and a number of international conventions because of tough language requirements it imposes, he said. He concluded by saying that a new law to replace the existing one has to be drafted with the assistance of international organizations. The following is the text of the article by Leonid Kravchuk entitled "How the law on TV and Radio Broadcasting hinders democracy in Ukraine" published in the Ukrainian newspaper Den on 21 February; subheadings have been inserted editorially:

Law endorsed despite criticism

The Supreme Council [parliament] of Ukraine adopted the "Law on Amending the Law of Ukraine on TV and Radio Broadcasting" on 12 January 2006. Adoption of this law has caused practically unanimous negative public reaction in Ukraine. Of course, representatives of electronic media were the most active, as this law concerns them directly. It was fiercely criticized by participants of Ukrainian TV market at the meeting initiated by me on 2 February. Generally speaking, I cannot recall any positive reaction to it in quite a large number of media publications dedicated to this theme. The law was condemned, and the president [Viktor Yushchenko] was recommended to veto it by human rights organizations: the Ukrainian Helsinki Foundation for Human Rights and the Media Law Institute. The Justice Ministry and the State TV and Radio Broadcasting Committee made the same estimations and proposals. I applied to the president of Ukraine in an open letter, urging him to apply his presidential right to veto this law.

Despite all this, President Viktor Yushchenko finally signed the new wording of the "Law on TV and Radio Broadcasting" on 10 February. However, he instructed the prime minister [Yuriy Yekhanurov] to make provisions for drafting a bill on amending this law at the same time, though he did not specify what the point was. Therefore, we are currently unaware of the direction in which this law will be amended and whether it will be amended at all. Meanwhile, this has been enforced, and having this status, it already hinders Ukraine's interests.

Antidemocratic tendencies

TV journalists and human rights activists focus their attention on the fact that the major danger of the law lies in general antidemocratic trends stipulated in it. Under the guise of so- called new wording, the whole philosophy of regulating activities in media sphere has been changed. The old law regulated licensing for the right to use broadcasting channels, while from now on, the right to broadcasting, i.e. content and form of broadcasting, and consequently, creative rights to produce and distribute programmes, are being licensed. It means that we are facing a situation when a state authority in the form of the National Council for TV and Radio Broadcasting has got the right to "license gathering, development and distribution of information" which contradicts the basic principles of freedom of speech. Even the notions "journalist" and "correspondent" have been deleted from the text of the law in its new wording.

The principle of freedom of speech is also being violated by the regulations on compulsory provision of information "positions of all political forces represented in administrative authorities which had been officially made public in this or that way", on "reasoned" interference on the part of state and local self-government authorities in the area of TV and radio broadcasting organizations' professional activity and on actual prohibition of political advertising.

Opportunities for corruption

Generally speaking, the impression exists that one of the major objectives of this law was establishment of unlimited bureaucratic dictatorship of the National Council for TV and Radio Broadcasting and, contrary to the constitution, granting it the powers of the "only state regulatory authority" with regard to audio-visual mass media. The National Council may distribute and cancel licences it its own discretion, as the law either provides an extremely broad scope of grounds for this, or they have no exact definition, which means that it can be applied to the predominant majority of broadcasts and practically all TV and radio companies. Emerging opportunities for corruption in this case are obvious. Unlimited opportunities for corruption are also created by another provision of the law, according to which the status of regional TV and radio broadcasting companies may be changed only for the status of public TV and radio organizations established by individuals and legal entities with the purpose of satisfying public information needs. However, this provision actually legalizes the mechanism of concealed passage of state-owned TV and radio companies into private hands.

Language policy

But the provisions of law which determine the language policy of TV and radio broadcasting are likely to pose the major threat. For example, one of articles of this law stipulates that the share of broadcasting time in Ukrainian should be at least 75 per cent of the total broadcasting time for all national channels regardless of their ownership form. Another article obliges channels to dub the whole 100 per cent of all films and radio programmes in the state language. In other words, even usage of Ukrainian subtitles for materials produced in Russian becomes unlawful.

The authors of the law were allegedly guided by their desire to support development and sphere of functioning of the Ukrainian language in the country. But the proposed methods can only hamper this objective. Did the authors of the law think about the feelings of Russian-speaking Ukrainian citizens deprived of the possibility of listening to the speech of their favourite actors? It concerns not only those who speak Russian: all of us know Russian, and any Ukrainian having common sense will prefer live voices of [Russian actors Innokentiy] Smoktunovskiy or [Mikhail] Ulyanov, but not clumsy interpretation. By practically ousting the Russian language from radio and television, the law flagrantly violates the rights of Russian-speaking citizens, and thus it openly contradicts article 10 of the Constitution of Ukraine which guarantees free development, use and protection of Russian and other languages. We can expect justified indignation from Russian-speaking people in response, which will mean a rise in social tension and higher level of conflict.

Arising contradictions

Adoption of this law will also contradict Ukraine's international obligations. In relation to this, I would like to remind you that Ukraine has been criticized many times by international organizations exactly with regard to its legislation on languages. For example, even much milder provisions on broadcasting languages in the previous wording of the law were flatly criticized in the conclusions of the Advisory Committee on the Framework Convention for the Protection of National Minorities of the Council of Europe adopted on 1 March 2002, along with the 2003 resolution of the Committee of Ministers of the Council of Europe. The mentioned documents said that actual practice in Ukraine was more democratic than the law, and they urged the authorities to bring the law closer to this practice.

PACE adopted two documents in 2003, in which it urged all CE countries to abandon any kind of language regulation in private media at all. One of these recommendations contains a demand to cancel imposition of any language quotas for private TV and radio broadcasting companies as those "contradicting Article 10 of the European Convention on Human Rights, as it had been proved by the European Court of Human Rights." In the course of adoption of the latter recommendation, all countries which had joined the Framework Convention for the Protection of National Minorities very flatly criticized Ukraine for tending to make broadcasting 100 per cent Ukrainian. It was noted in the report that similar regulations either did not exist or were much milder in other countries who are parties to the convention. By the way, freedom to disseminate information in Europe implies not only content of information, but also its form, including the language, and the European Court has confirmed this in particular.

Therefore, many provisions of the new wording of the Law on TV and Radio Broadcasting contradict the Constitution of Ukraine, along with international regulatory and legislative acts it has ratified, in particular, the Convention for the Protection of Human Rights and Fundamental Freedoms, the Convention on Transborder Television and the European Charter for Regional or Minority Languages. Let me add that the final text of the law has not passed any examination in international organizations, and recommendations made by the international organization of Article 19 and added to the text adopted in the first reading have not been taken into account.

How can it be evaluated? While the Ukrainian leadership persistently reiterates theses about our European ways and aspirations of full accession to Europe, parliament adopts a law leading us in a direction opposite to European values, and the president signs it.

New law, international assistance required

While signing the law, the president gave instructions to draft amendments to it. But I fully agree with the opinion stated during the meeting by heads of TV and radio broadcasting companies that this wording is unacceptable in principle and cannot be improved. The only solution is to draft a new law.

Experience of adoption of this law shows that all incumbent branches of power have proved to be incompetent in independently creating legislation which complies with European criteria. This is the case when we need assistance from international organizations which they kindly offer us.

The heads of TV and radio broadcasting companies launched an initiative to appeal to the Council of Europe with a request to carry out examination of provisions of the new wording of the Law on TV and Radio Broadcasting. I fully support this initiative and intend to implement it.

Source: BBC Monitoring Former Soviet Union

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