The Ban on the Use and Broadcasting on Ukrainian Television and Radio of Audiovisual Works Produced by the Aggressor State is Constitutional

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On December 21, the Grand Chamber of the Constitutional Court of Ukraine delivered Decision upon the constitutional petition of 47 People's Deputies of Ukraine on the constitutionality of certain provisions of Article 6 of the Law of Ukraine “On Television and Radio Broadcasting” of December 21, 1993 No. 3759-XII as amended (hereinafter referred to as “Law No. 3759”), Articles 15, 15¹, 26 of the Law of Ukraine “On Cinematography” of January 13, 1998 No. 9/98–VR as amended (hereinafter referred to as “Law No. 9”).

The subject of the right to constitutional petition requested the Court to recognise as unconstitutional certain provisions of Laws No. 3759 and No. 9 related to the ban of distribution of audiovisual works.

In particular, the impugned provisions provide for a ban on the use and broadcasting by Ukrainian television and radio organisations of audiovisual works (films, television programs), one of the participants of which is a person included in the List of Persons Threatening Ukraine's National Security. They also concern a ban on the broadcasting of films produced by individuals and legal entities of the aggressor state, including those that do not contain the promotion or propaganda of the aggressor state's bodies and their individual actions.

Considering the issues raised in the petition, the Constitutional Court of Ukraine stated in its decision that the state policy in the spheres of national security and defenсe is aimed primarily at ensuring the military, foreign policy, state, economic and information security of Ukraine.

The Russian Federation has long pursued an unfriendly state policy toward Ukraine, and in 2014 grossly violated Ukraine’s state sovereignty and territorial integrity, international law, and its international obligations.

In the conditions of application by the Russian Federation (its subjects of power, officials, as well as its mercenaries, journalists, artists, etc.) of various means of purposeful formation of a negative image of Ukraine, counteraction to the aggressor state is carried out in the information sphere as a component of national security. To counter threats, the parliament applies a system of normative means to ensure Ukraine's information security.

Ukraine has the right to defend its independence, its state sovereignty and its territorial integrity through the implementation of such systemic measures and the use of means that are proportionate, acceptable and admissible in view of the level of danger, threats and challenges facing it.

“Restrictions established by the first sentence of Article 6.2.10 of Law No. 3759, paragraph four of part 3, paragraph four of part 4, part 7 of Article 15 of the Law No. 9 are admissible and acceptable, do not violate the rights to information, freedom of thought and speech and freedom of creativity, do not contradict the Constitution of Ukraine.

The above disputed provisions of Law No. 3759, Law No. 9 have a legitimate purpose and are aimed at protecting information security, state sovereignty and territorial integrity of Ukraine, preventing destructive information and propaganda influence and pressure of the occupying state on the consciousness and subconscious of Ukrainian citizens through audiovisual works and media,” the Court's decision emphasises.

The Court also notes that a person who, in particular, promoted violence and called for the overthrow of the constitutional order in Ukraine, participated in illegal armed groups and hostilities in Ukraine as part of illegal armed groups, expressed support for the aggressive policy of the occupying state and propaganda or other actions aimed at denying the right of the Ukrainian people to their own statehood may be included in the List of Persons Threatening National Security.

At the same time, the Constitutional Court of Ukraine stressed that the challenges and threats facing Ukrainian statehood in connection with the temporary Russian occupation of the Autonomous Republic of Crimea, Sevastopol, some districts of Donetsk and Luhansk regions, as well as constant attempts by the occupying state to artificially destabilise Ukraine, in particular, through the purposeful formation of a negative image of Ukraine and the widespread use by the occupying state of distorted and misleading information (in particular, the means used in cinematography, i.e. through the distribution and showing of films with biased presentation and one-sided coverage of events and facts, “demonisation” of supporters of the Ukrainian national revival and deliberate destruction of the spiritual and cultural foundations of Ukrainian statehood) necessitated increased deterrence of the occupying power and opposition to Russia's aggressive state policy towards Ukraine, especially in the information sphere.

Thus, the Court found that the provisions of the first sentence of Article 6.2.10 of the Law of Ukraine “On Television and Radio Broadcasting”, Article 15.3.4, Article 15.4.4, Article 15.6, Article 15.7, Article 15¹.1, second sentence Article 15¹.2 of the Law of Ukraine “On Cinematography” as such that do not confirm to the Constitution of Ukraine.

At the same time, given the lack of substantiation of allegations about the unconstitutionality of the provision of Article 26.3 of Law No. 9, the Constitutional Court of Ukraine considers that there are grounds to terminate the constitutional proceedings in the case of constitutionality of this provision.

The decision of the Constitutional Court of Ukraine is binding, final and may not be appealed.

 

Developed with the support of OSCE Project Co-ordinator in Ukraine
© 2023 Constitutional Court of Ukraine