“Case against Shabunin” Gets “Evil Innovation” Nomination in the Matter of Investigating Crimes against Journalists
As we know, the investigation has re-qualified the case of Vitaliy Shabunin, Head of the Board of the Anti-corruption Action Centre. Now he is suspected of “Threat or violence against a journalist” (part 2 of article 345-1 of the Criminal Code of Ukraine). If he is found guilty, he will face up to 5 years of imprisonment.
The note of suspicion was changed on January 15 and handed to him on January 18 by the investigating officer Cheberiak O.M. from Dniprovskyi police office. The pre-trial investigation has been completed, according to the officer, they will not apply any preventive measures. The case is forwarded to court.
The AntAC team believe that re-qualification of the case to the one with the heavier sentence which results in the five-year imprisonment is nothing but putting continuous pressure on the organization.
Characteristically, all other cases of assault and battery of journalists hardly ever get any attention from the law enforcement officers, according to the AntAC. Very few cases see the light of the day in court. Namely, only 3 verdicts have been passed under the article 345-1 that Shabunin is incriminated of, since the Revolution of Dignity. Two cases ended in settlement agreement, whereas the third suspect was released having received suspended sentence.
Sadly, manipulative and selective nature of applying article 345-1 is apparent. This Criminal Code article is applied for battery of a journalist, threatening him or her and also their relatives. The article is unique in many respects: on the one hand, journalists have been offered legal protection inferior only to law enforcement officers. On the other hand, in practice the article has never been effectively applied for protection of journalists in Ukraine.
In practice, there are no real sentences preventing violence and threats of violence against the journalists.
First sentences given to journalist attackers seem to be an illusion: when the court does apply the article 345-1 of the Criminal Code, it is used as a substitute for articles 121 and 122 of the Criminal Code, which preview punishment for violence against any person.
National Union of Journalists of Ukraine has repeatedly called attention of society and the law enforcement agenices to impunity of crimes against professional activity of journalists. True, in recent years strong regulations have been passed previewing significant penalties for crimes against journalists, namely in the Criminal Code of Ukraine. For instance, under article 171 of the Criminal Code, “Hampering legal professional activity of journalist”, up to 5 years of prison sentence is prescribed, while under article 345-1 of the Criminal Code “Threat of violence or violence against journalist” up to 14 years of prison sentence is prescribed. We repeatedly called attention of authorities to the fact, that while journalists are legally protected against violence or threats of any kind, there is no precedence of applying these laws.
Apparently, the authorities have finally decided to take to heart the numerous complaints from the National Union of Journalists of Ukraine and produced a “showcase” of journalist protection – the “Shabunin’s case”.
In all fairness, we must note that article 345-1 of the Criminal Code was first beta-tested in Vinnytsia. This first attempt did not go so well, as it often happens…
October 31, 2017, Vinnytsia city court passed a verdict for violence against journalist, the attacker of the journalist was found guilty of criminal offence under part 2 of article 345-1 of the Criminal Code and was sentenced to 3 years in prison.
One would think that similar reaction on the part of law enforcement and the court system is welcome and long overdue. Details point to the contrary, though.
The actual course of events: in the night of May 28, 2016, road police officer stopped the vehicle “Kia Cerato” for violating the Traffic Code, driver of the said vehicle seemed to be in the state of alcohol intoxication. In the meanwhile they were approached by a gentleman who presented his journalist ID and said that he was following work of police patrols and started filming the event on his mobile. An equally intoxicated passenger of “Kia Cerato”, who turned out to be the attacker, was sitting near the driver. He did not like the journalist filming the events and proceeded to threaten the latter. The victim kept repeating that he was a journalist and was filming the police work, not the attacker. The offender heard the journalist identify himself and his profession. He threatened the journalist with physical violence and demanded to stop filming. The victim tried to avoid confrontation, explained that he is a journalist, tried to move safe distance away from the attacker. The accused stepped out of the car and punched the victim in the head and chest region.
The key detail of the case is the fact that before the actual assault on the journalist the offender had already violated the law, namely by “hampering of the legal journalist activity” (under article 171 of the Criminal Code) and “threat of violence against journalist” (under art. 345-1 of the Criminal Code). These violations should have been enough for the police team under the Law of Ukraine “On the National Police” to act adequately and appropriately in order to stop the abovementioned illegal actions and to prevent escalation of violence – the actual battery of the journalist.
Can this case be interpreted as the actual, targeted reaction of the legal system to battery of a journalist? Sadly, no. The punishment is analogous to assault on any citizen. Under article 122 “Intended bodily injury of medium gravity, that is a willful bodily injury which is not dangerous to life and does not result in the consequences provided for by article 121 of this Code, but which caused a lasting health disorder or a significant and persisting loss of not less than one-third of working capability, shall be punishable by correctional labor for a term up to two years, or restraint of liberty for a term up to three years, or imprisonment for a term up to three years. 2. The same actions committed for the purpose of intimidating the victim or his/her relatives, or coercion to certain actions, – shall be punishable by imprisonment for a term
of three to five years”.
Thus, the journalist community has no cause for celebration. Sadly, that article 345-1 of the Criminal Code does nothing to protect the rights of journalists
Another showcase example. 24 October, 2017, when unblocking Sviatoshynskyi district court, police officers committed unlawful actions similar to offences under articles 171 and 345-1 of the Criminal Code. As a result, journalists Dmytro Replianchuk (“Hromadske”), Serhii Lefter (UNIAN) and Kyrylo Malyshev (Strana.ua) suffered.
Soon after, Serhii Yarovyi, Deputy Minister of Internal Affairs personally apologized for battery of the journalists by the law enforcement officers.
As soon as October 25, the OSCE reacted to the incidence and condemned battery of the journalists in Sviatoshynskyi
«Police violence against journalists covering protests in Kyiv unacceptable, says OSCE Representative on Freedom of
the Media Harlem Désir, VIENNA 25 October 2017»
Numerous mass media reported on battery of the journalists, namely:
National Union of Journalists of Ukraine has decided to watch this issue and the “course of investigation” of unlawful
actions against the journalists very closely.
These identical crimes are not being investigated equally. Concerning unlawful actions against Dmytro Replianchuk and Serhii Lefter, with timely assistance of lawyer from “Hromadske”, reports of crime have been filed to the police and criminal investigations have been opened based on article 171 of the Criminal Code. The investigation is somewhat progressing. Some tests and analysis are being conducted. We hope to see appropriate classification and investigation of the crimes.
The situation is much worse concerning unlawful actions against Kyrylo Malyshev. The police and prosecutor’s office persisted in not opening the criminal investigation of hampering his professional activity and threats against Kyrylo Malyshev based on the known facts of unlawful actions against the journalist.
The National Union of Journalists of Ukraine had to make various and numerous appeals concerning unlawful actions against Kyrulo Malyshev, as well as criminal inaction of the law enforcement in crime investigation.
Only after three months of humiliating the journalist, he was for the first time called for interrogation to the investigator of the prosecution and informed of a criminal investigation under articles 171, 365 and several other ones of the Criminal Code opened for the events of October 24, 2017.
Curiously – the article 345-1 of the Criminal Code – IS ABSENT from the abovementioned list! Although, as Kyrylo said in his statement submitted to the police (and described to the mass media) – he was beaten, and threatened with strong violence.
This is what we have: selectivity of the law enforcement officials – when applying article 345-1 of the Criminal Code.
What is the principle of applying this selectivity? – this is a question for a separate research – dialogue, but for sure, the
Revolution of Dignity did not take place for such disgraceful law application.
As it turned out, where there is “grey” (area), there are many shades of it – this is how the story goes:
Surprisingly, after the actual assault on a journalist (who has been feeling giddy for a long period of time, which pointed to the possible concussion) no effective forensic examination was ordered. Despite the fact that he clearly stated the circumstances being a case of hindering his journalist activities, as well as assault, in his written statement submitted to the police on the very same day – October 24, 2017.
In the so-called «Shabunin’s case» one can clearly trace both absence of impartiality and neutrality in the investigation, and the law enforcement aspirations for the place in «the national book of records» by the speed of collecting the evidence of the so-called “assault on a journalist”, as well as by novelty of kinesthetic manifestations of the punches, including possibly even religious mystique.
As the AntAC’s press-release mentions, earlier, within the proceedings, Shabunin’s lawyers attracted court’s attention to the fact of witnesses’ interrogation reports, submitted by prosecutors, being written by the same pattern. Moreover, the lawyers notified that the text of the medical expert’s report that the suspicion is based on, is full of inaccuracies and untruthful facts.
Filimonenko’s injury is located on the left side of his face, but it can be seen on the video that Shabunin hit him on the right side. Besides, in the course of proceedings it was revealed that the ambulance doctors that hospitalized Vsevolod Filimonenko detected no injuries, and he was transferred to another hospital. By some strange coincidence, Filimonenko’s injuries were detected only after him spending 12 days in hospital.
To start investigation for the falsification of the medical expertise conclusion, Shabunin’s lawyers had to go to the law. At first, the prosecution refused to open case on falsification. The case is at Podilskyi district police office, yet no procedural action has been taken since the beginning of investigation in November”.
Nothing short of a miracle: injury of the left cheek was documented while it was the right one that was hit. After a while… In his FAMOUS Sermon on the Mount Jesus said: “Do not resist the one who is evil. But if anyone slaps you on the right cheek, turn to him the other also” (Mathew 5:39).
The question is, to which “evil” persons did the “victim” turn his other cheek, the left one, after Shabunin hit him on the right one? (The Ambulance team that arrived never did find traces on the latter, curiously). We are nearing the Great Lent, time to repent. Might be a good time to repent of manipulations and highly selective
Valerii Makeiev, secretary of the National Journalist Association of Ukraine