Freedom’s just another word for nothing left to lose,
Nothing ain’t worth nothing, but it’s free …

Two men are running along the street: the one in front is black and wearing jeans, behind him your typical English Bobbie, police helmet and all. That was the photograph on a big poster in the London Underground. I wouldn’t have paid any attention except for the sign: “Another example of police prejudice or of yours?” Well, now that made me stop and read the explanation. It turned out that the guy in front was the head of the local Criminal Investigation Department, and the uniformed man a rank and file police officer taken on to help. And what did you think? So did I.

The advertisement against prejudice and an enforced session of self-analysis have stuck in my mind. I’d like to say the same of the advertising campaign against racism which began in Kyiv last week. No criticism intended, only I’ve long been sceptical of calls to love, respect or not beat up somebody. I usually don’t react at all, or with irritation. You need to fight all forms of primitive prejudice, just not with exhortation alone.

A little context: in 1993 the murder of Stephen Lawrence, a black British teenager, and a whole series of mistakes by the police resulting in the likely murderers escaping justice aroused a wave of indignation in Britain and accusations of racism. It is not totally clear why the case was so shamefully bungled however the public outcry probably spurred the police to take measures not only against racism in society, but within their own ranks. It would seem with considerable success.

This did not stop the radical rightwing British National Party (BNP) with its overtly racist and intolerant philosophy from winning a by-election recently. The result came as a shock for many Britons, although it wasn’t particularly difficult to predict. Among EU countries the UK has probably been hit hardest by the economic crisis, and employment centres are seeing 10 people competing for each place. A lot of people claim that foreigners are taking away their jobs.

Does it all sound familiar? Against a background of the victory on Sunday of the All-Ukrainian Organization [VO] “Svoboda” [“Freedom”], certain similarities do hit one in the eye. So too, though, do some differences which will be discussed below. Incidentally there really are a lot of people from other countries working, often quite legally, in Britain. In Ukraine, foreign nationals are rarely competition. That, however, is basically a detail since both parties publicly claim that they are not against anybody, just for their own. Admittedly it is highly problematical to reconcile their limited concept of “our own” with the pluralistic principles of a democratic society.

Similar, as well as more radical, views gain popularity during any crisis and such victories are to be expected. Where they end is much less predictable, and in Ukraine’s case not just because of other factors, including an absolutely understandable disillusionment with the political forces presently in power.

The authorities both in Ukraine and in the UK speak out against xenophobia and intolerance. In the UK, given legislative backup, government bodies against racism, and a guaranteed scandal over any racist remarks etc from politicians, celebrities or the media, it seems safe to assume that it will be hard for radical groups to substantially increase their support. There are, however, no grounds for complacency and it is quite on the cards that this victory will prove a useful lesson. It’s worth mentioning that in all European countries at present, the authorities are taking the likely increase in tension and aggression in conditions of crisis very seriously.

What will happen in Ukraine is harder to predict also because the reaction by the authorities to clear problems remains all too often at the level of fine-sounding words.

Last week some media outlets reported that the Verkhovna Rada had increased liability for inciting enmity. It soon transpired that a draft law had merely been passed in its first reading, albeit as a basis. Whether from inertia, or for the sake of fine words, reports in the media continued to talk about parliament’s noble intentions to really grapple with hate crimes. It got a mention in foreign papers as well. Hard to deny that right now it’s a pleasant surprise to read anything positive about the Ukrainian authorities.

However the trouble with fine words is that sooner or later they confront reality. This time one won’t have to wait long for the inevitable head-on collision since the draft law, aside from generating its own clashes, does not remove any of the problems in current legislation. The repetition of the phrase “for motives of racial, ethnic or religious intolerance” is hypnotic and does indeed create the impression that the legislators have finally recognized the problem. However, in his legal assessment, Viacheslav Yakubenko points out that Article 67 of the Criminal Code already treats this motivation as an aggravating circumstance for any crime. Nor does he consider the substitution of the word “citizens” by “people” to be a fundamental point since the Prosecutor has never refused to initiate a criminal investigation under Article 161 due to the citizenship of the victim.

Perhaps it would be better to consider just why it is that the law is virtually not applied. Yakubenko calls Article 161 “deadweight” and with good cause. Yet without this article, efforts to combat the most dangerous demonstrations of primitivism remain exhortations on a par with “Be tolerant!”

It is not only Ukrainian human rights groups which have pointed to problems with the application of Article 161. In its Third Report on Ukraine, the European Commission against Racism and Intolerance (ECRI) repeated all the comments from its previous report and clearly viewed without understanding the failure to make real efforts to improve the legislation in question. I would stress that it is always difficult to find an acceptable level of protection against incitement to enmity without excessive restriction of freedom of speech. However it is known that Article 161 is effectively not being applied because it is extremely difficult to prove that the incitement was intentional. It seems hardly necessary in a post-Soviet country to remind readers that not all Soviet tanks “defended” a brother nation, and not all “defenders of freedom” liberated the countries they entered. Against the background of an increase in xenophobia and the undoubtedly greater activity of various radical groups, including those whose aim is clearly to destabilize the country, the stubborn reluctance to change a provision which can at best protect society against total idiots or those who actually confess to their intentions is quite unfathomable.

Incidentally, In Britain they finally introduced two possible conditions: either intentional incitement or the objective likelihood that the words would stir up racial hatred. This is also not ideal but then an ideal solution is by definition precluded due to the need to protect freedom of speech. Nonetheless, inaction in the face of ever more sophisticated methods for pushing a philosophy based on violence and hatred protects nobody and nothing.

Both legislation and all spheres of public life should identify as clearly as possible the acceptable restrictions to freedom of speech. In the current law, instead of clarity there is a mishmash of behaviour, like denigration of national honour and dignity being unwarrantedly punishable, while other actions are perhaps not sufficiently strictly penalized. All of that is purely theoretical of course, which is probably why nobody seems too bothered that according to the law some undoubtedly intolerant, but personal, views, without any calls to violence, are being labelled criminal offences.

The draft law, which has clearly not coped with the task, has been passed as the basis for an amended Code. The initiative needs to be welcomed – and seized as quickly and efficiently as possible in order to prevent it remaining mere words.

It would not hurt, at the same time, to set about resolving some other issues which are standing in the way of real progress. The provisions may be there in the law however whether the law enforcement bodies recognize racial motivation is another matter. In January this year the media reported a terrible murder in Lviv of a Nigerian who was living permanently in Ukraine. Over several weeks, presumably under the pressure of human rights groups and the media, the police reported on the progress or lack of such in the investigation. They stated that although the murderer had not been identified, they could say with certainty that he was not a skinhead. One can only hope that this is not because an eye witness reported that the assailant had a full head of hair. I am not suggesting that the police are hiding anything however we have a situation where the Prosecutor more often than not fails to see racial motivation where not perceiving it requires real effort. The investigation team is often loath to pursue charges under Article 161 because they are difficult to carry through to a just court verdict. On the other hand, many observers, including people from abroad, treat with mistrust statements that unidentified offenders remain unidentified, but absolutely not racist. It is quite likely that in this situation they sometimes imagine racial motives where there were none.

With regard to the issue of freedom, there is heated debate at present over plans to introduce registration of Internet sites. A lot of people are wary of any involvement from the Security Service, or increase in control in any shape or form. As far as control is concerned, I’m afraid I don’t agree, and do not even see justification in introducing only voluntary registration. Yes, I can to a large extent agree with Voltaire and defend people’s right to hold views I find obnoxious. Only Voltaire, excuse me, did not surf the Internet nor was he able to communicate with a large number of people at once, whereas you and I can. And there are plenty of other individuals and groups with very shady motives who also have such scope for their activities. Bombs and other weapons kill more quickly, however words which stir up hatred and convince people that others according to some feature of other are enemies also have potent destructive force which we would be ill-advised to underestimate.

Neither the current law nor the draft law seems to provide real protection from material which incites enmity. In April it will be one year since the publication in the newspaper “Krymskaya Pravda” of the notorious article by Natalya Astakhova entitled “Brought with the wind”. One might have thought that it would not be at all difficult to prove that the author was seeking to stir up animosity towards the Crimean Tatar people. Since August 2008, we have been hearing calls to protect the Crimea and counter forces which would encroach upon Ukraine’s territorial integrity. Hundreds of articles have been written on the information war, and yet the article remains right where it was a year ago. I could name several other cases where something should have been done. And entire websites – those of “Patriot of Ukraine”, “Narodny Ohlyadach” [“People’s Observer”] and others which spread their poison with total impunity. The “Narodny Ohlyadach” site, by the way, although without its own media status, brazenly copies material from other reputable sites, like UNIAN, and uses toxic headlines, illustrations etc to totally distort the information and mislead the reader.

In its Third Report on Ukraine, the ECRH recommends that the Ukrainian authorities in drawing up amendments to the Criminal Code rely on paragraph 18ii of the ECRI General Policy Recommendation N°7. This Recommendation stresses the need to punish intentional calls to violence, hatred and discrimination on condition that these are expressed in public. It is explained that public can be understood as referring to statements made during a neo-Nazi meeting or in an exchange on an Internet forum.

In honesty, this all makes me wary, but then so does a great deal concerning restrictions on rights and liberties. The mechanisms have still not been developed for protecting journalists from pressure brought to bear by various authorities. Yet where is the logic if printed media outlets at least in theory bear liability for untruthful information or incitement to enmity, whereas Internet outlets whose audience is much wider can write whatever they feel like?

The logic seems lacking and I also doubt that the absence of clear requirements and prohibitions gives greater freedom. It more likely increases their vulnerability to arbitrary rule. It is not the need for all media outlets, whether print or electronic, to be subject to registration that should be of concern, but the lack of mechanisms against abuse, as well as a lack of fundamental solidarity. Arbitrary rules work when everybody sits and trembles behind closed doors. Together we really are many.

In my view there simply is no choice. That is, of course, if we still all have in mind democratic choice. You can hear plenty of other statements as to what is to be done, not to mention who is to blame. We are seeing an increase in tension and in activity by movements for whom all unemployment, poverty and uncertainty in the future opens new opportunities for influence.

In such conditions our freedom is always under threat. It seems wise for the media and society to take control and responsibility upon themselves. At a meeting on 26 February, the Inter-departmental Working Group on Combating Xenophobia, Inter-ethnic and Racial Intolerance passed a resolution to approach the National Expert Commission for the Protection of Public Morality (the Commission) and the Ministry of Justice. The idea is that the latter should “submit to the Cabinet of Ministers an agreed proposal on including the Commission among the state bodies which carry out expert assessments for the courts of incitement to ethnic, racial and religious enmity and hatred, denigration of national honour and dignity or offending citizens’ feelings in connection with their religious convictions”.
Trust is clearly a very subjective thing and maybe the reader has only positive thoughts regarding the likely role of Mr Kostytsky and the other members of this Commission in a new field. Or more precisely in a field about which Mr Kostytsky has spoken a great deal of late, but has done nothing, in contrast to the Commission’s active measures on protection from pornography. It is well to remember that the conclusions of the Commission are equally lacking in court expert status for both fields.

It would be useful to organize public discussion with the participation of members of the media, the Internet Association of Ukraine, civic and human rights organizations and all interested parties. Only it’s time to move away from roundtables and achieve a working meeting which would agree and draw up proposals on amendments to the Criminal Code which pertain to issues of freedom of speech. All parts of the relevant provisions which intrude on the inalienable human right to hold and express his or her views should be removed, while real sanctions should be established against those who use the mass media to propagate hatred and violence. This may not necessarily involve criminal liability however the present impunity is a threat not only to those whom individual bigots have decided are their “enemies”. Moreover one cannot expect unlimited patience from international bodies at Ukraine’s failure to comply with its commitments on combating xenophobia.

True freedom brings with it responsibility. Without this words remain a cheap commodity offered for a song by those wishing to use us for their own ends.