The case was opened after an attack on the crew of Radio Free Europe/Radio Liberty’s journalists Mykhailo Tkach and Kyrylo Lazarevych while they filmed an episode for an investigation of luxury cars driven by the SBU officers that they cannot afford with their official salaries, which average Hr 5,000-6,000.
Four SBU officers, including one whose car featured in the investigation, without an explanation grabbed the journalists and forced them to go into the premises of the Kyiv city and region office of the SBU. Their camera was broken in the process, and the journalists were then pressured to write a confession that they are spies. This happened on Oct. 2.
The military prosecutor’s office, which has a mandate to oversee the secret service, investigated the incident, and came to the conclusion that there was no ill intention in the actions of the representatives of the SBU. Apparently they had no idea that they were dealing with journalists – despite the fact that they carried a camera, a microphone with a bright logo, journalistic IDs and were talking to a representative of SBU’s own press service at the time of detention. The military prosecutor closed the case.
During the whole investigation, we suspected that it might come to that. The lawyers of journalists were ringing alarm bells despite sweet talk of prosecutors of various levels, who is insisted they were trying their best to investigate and that SBU’s fault is crystal clear – not in the least because of the recordings of the surveillance cameras of SBU itself, which fully documented the episode.
But during the whole investigation we kept sensing that journalists themselves were under attack and under watch. For example, one of the military prosecutors at some point asked us if journalists were receiving salaries in envelopes, in cash. It’s a common practice in Ukraine, but it’s unimaginable at RFE/RL, which is financed by the U.S. Congress. But this is the message the SBU was trying to convey to the prosecutors: that journalists are the ones who should be investigated.
Questioning of journalists (the aggrieved party in this case) lasted for four hours at a time or more. The journalists were forced to demand that the investigator corrects the protocols of those questioning sessions because he kept adding his own elements to the story, effectively documenting the case in favor of the SBU and failing to add clarifications provided by journalists.
Our lawyer’s application to conduct an independent examination of the moral and material damage inflicted on journalists was only partially satisfied because the damage to the camera was examined. The request to determine moral damage – an act that might seem absurd to outsiders but actually plays a very important role in Ukraine’s criminal law – was ignored.
The rights of Lyudmyla Lebid, the lawyer from Jurimex who represented journalists pro bono, were breached many times. She frequently was not allowed to petition on behalf of her clients, and the prosecutor demanded that the petitions were filed by the journalists themselves.
These are just a few examples of how investigators were trying to exhaust the journalists, their time and energy, to make them more likely drop the case. SBU also made a point out of repeating publicly that journalists had no complaints about their actions.
The last attempt to protect SBU workers from the criminal case came in December, when the military prosecutors started an alternative administrative case against one of the four SBU workers who detained journalists. This case was opened in violation of law because the criminal case has to actually be closed before such an administrative case can be started.
Journalists were under pressure all the time. The investigator of this case kept demanding an explanation from journalists whether they received permission from the SBU for filming, whether they realized that they were filming people who were not supposed to be filmed, and why they tried to identify operatives – in other words, they kept hinting to journalists that they were in violation of law and it would be best not to make enemies out of the SBU.
Journalists kept responding that they’re allowed to film in any public place, according to Article 307 of the Civil Code. To counter that, the SBU produced an illegal document that said SBU did nothing wrong. It citing an anti-smoking law to define what a public place is. Journalists and their lawyers still have not been allowed to read that paper because it was classified for some reason.
We kept hearing from the prosecutors that they did not have enough evidence of the crime, despite the fact that the episode was recorded by multiple cameras, our and the SBU’s.
The Security Service of Ukraine detained journalists for asking the source of income of expensive cars found in the employee parking lot near the law enforcement agency in Kyiv.
By the new year, the climax of this whole process was reached. The prosecutor closed the case, twisting journalists’ statements in the final paper to suit the officers. Many important elements of the incident were omitted, and the conclusion was that the SBU had no idea they were obstructing work of journalists.
This attack seemed to the one of the most straight-forward and best-documented cases of obstruction of work of journalists who fulfill a major function in any democratic society, including Ukraine, which strives to become one.
One of the heroes of the anti-corruption investigation, Ivan Porada, was first filmed with his Toyota Highlander. He refused to comment on it. And a quarter an hour later he shows up in the company of three others, to pack in those stubborn journalists. There is both a motive and action that clearly fall under article 171 of the Criminal Code (obstruction of work of journalists).
On Oct. 2, SBU worker Ivan Porada drove his Toyota Highlander to the office. When asked by journalists about his income, he said he had no relation to the SBU. About 15 minutes later he and three others detained RFE/RL journalists who were filming the investigation. (RFE/RL)
There has not been a single case in Ukraine when this article worked. Journalists are attacked regularly, but there is still no precedent when the official who commits the crime would be jailed. Sometimes they even start cases against journalists themselves, accusing them of violations of privacy.
Impunity feeds the Pavlovian reflexes of law enforcers: to grab, knock down, detain, shut up those journalists that show up in the vicinity.
There are two precedents when such cases failed to be properly dealt with by the Ukrainian justice system, and ended up in the European Court for Human Rights. They are waiting for their turn.
A positive decision by the ECHR might create a new legal base to revisit other such closed cases. In the meantime, Ukraine’s lawmakers have to also think about solutions that can vitalize the paralyzed article of the Criminal Code that has to protect journalists. Meanwhile, we are also appealing.
Katya Gorchinskaya is the managing editor for investigative programming at Radio Free Europe/Radio Liberty (Ukraine Service).
The Security Service of Ukraine didn’t take kindly to journalists asking the source of money that agents used to buy expensive automobiles in the law enforcement agency’s parking lot.
