On September 18, 2012 the Verkhovna Rada of Ukraine adopted as base the law draft “ On Amendments to the Criminal Code and the Criminal Procedural Code of Ukraine (on increasing responsibility for infringement on the rights to honor and dignity)”.

The law draft ( read more ... in Ukrainian) proposes to include to the Criminal Code of Ukraine the Article 145 ¹, which establishes criminal responsibility for defamation .

The authors of the law draft justify the need for the adoption of the Law by " weakness, in fact, - complete ineffectiveness of measures to protect the honor, dignity and business reputation”.

In our opinion, these trends in the Parliament’s activity are a step backwards in the development of civil society, as the state vector is directed to "criminal control" over the activities in the field of freedom of speech and expression, as well as access to information.

We would like to note that the Criminal Code of Ukraine of 1960 envisaged criminal responsibility for defamation and insult (Articles 125 and 126) . Instead, the Criminal Code of 2001 did not include relevant provisions, and therefore these action were not considered as criminal offence.

There is no doubt that disseminating of false information about a person is prohibited is a negative phenomenon , but is it possible to consider the social danger of words (negative information) sufficient to establish criminal responsibility for defamation ? And can we talk about guarantees of freedom of expression, if sanction for defamation is imprisonment for a maximum term of five years , with deprivation of the right to carry certain activities for a period of up to three years?

In our opinion , the criminalization of defamation is a wrong step. C urrently, the Article 28 ( right to respect for dignity) and Article 32 ( right of privacy and family life ) of the Constitution of Ukraine guarantee the rights under discussion that Parliament is seeking to protect by establishing criminal responsibility for their violation.

These rights are protected by Civil Code of Ukraine (Chapter 22).

According to the part 4 of the article 32 of the Constitution of Ukraine everyone shall be guaranteed judicial protection of the right to rectify unauthentic information about himself/herself and members of his family, the right to demand the expungement of any type of information , as well as the right to compensation for material and moral damages caused by the collection, storage, use, and dissemination of such unauthentic information.

According to the part 3 of the article 297 of Civil Code of Ukraine ( right to respect for the dignity and honor ) an individual has a right to apply to court to protect its dignity and honor.

A similar provision for judicial protection are envisaged in the part 2 of the article 299 of Civil Code of Ukraine (the right to immunity of business reputation ).

Furthermore, the criminalization of defamation does not comply with the practice of the European Court of Human Rights, never the less its decisions are a source of law in Ukraine.

In the case of DALBAN V. ROMANIA (read more… ) the European Court of Human Rights pointed to a violation of Article 10 of the European Convention on Human Rights that envisages the right to freedom of expression. Dalban as a journalist was convicted in Romania for libel on the official, because of disclosure of information about his misconduct, without adequate evidence of that.

The European Court of Human Rights in the judgment noted that the Dalban’s articles concerned a matter of public interest : the management of State assets and the manner in which politicians fulfill thei r m andate. Court was mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation . It would be unacceptable for a journalist to be debarred from expressing critical value judgments unless he or she could prove their truth .

W e believe that further application of this law in practice will violate provisions of the Article 10 of the European Convention of Human Rights and Fundamental Freedoms.

Prepared by A.Petriv.