MENU

Human rights in Ukraine – 2004. XIV. HUMAN RIGHTS AND ELECTION OF THE PRESIDENT OF UKRAINE

13.10.2006

1. Overall review of the election process

The events connected with the Presidential elections of 2004 in Ukraine were a severe challenge to Ukrainian society and to its position on observing human rights and fundamental freedoms. The ability of Ukraine to transform in the direction of contemporary democracy, public perception of traditional western values – freedom of choice, freedom of thought and speech, freedom of peaceful assembly, freedom to freely express and assert one’s views – were put to the test. Those in power and society itself for the first time openly opposed each other. The force of the State authorities versus the force of the people – that was the formula of confrontation during the election campaign.

For the first time, Ukrainian people had a chance to feel the power and qualitative advantage of civic society in action. By following the development of the election process chronologically, one can see how the way those in power ignored universal human rights led to a gradual rise in social tension. In view of current democratic axioms for the development of society, the policy of reliance on the absolute power of the bureaucratic machine, on absolute pressure on voters, as well as on the use of an administrative scheme for using the mass media to formulate public opinion proved to be fatally flawed.

From May the processes indicating the approach of an election marathon began to be evident in Ukrainian society. Headquarters of opposition parties formed lists of people to make up future district and electoral commissions and begin instructingthe press services each set up.

One should note in this connection the President’s Resolution of 23 November 1995 «On coordination of press services and informative-analytic bodies of executive power», as this resolution effectively creates a ladder of Press services at all levels of executive power. The duty of coordinating all press services is assigned to the Presidential press service, which has to hold monthly briefings for heads of the press services of the Cabinet of Ministers, ministries and other central bodies of executive power. Each of these press services must coordinate, with the Presidential press service, all the materials, which are passed to the mass media and which «contain evaluation of external and domestic state policy which could have substantial public impact». Furthermore, these services must inform the Presidential press service about all activities which are to be held by State executive bodies or by state officials together with the mass media.

In our opinion, these resolutions, while appearing designed to render official information more accessible, lead, however, to a limitation on freedom of information, and to rigid state regulation of the procedure for obtaining such information. The centres of public relations and press services created are frequently the founders of their publications, and these publications, in fact, serve rather as means of propaganda than as sources of unbiased and authentic information. Instead of serving the interests of society (given that the goal of their creation was to guarantee transparency of the activities of state bodies and agencies), they have served the interests of specific State bodies. Moreover, having the monopoly on a certain range of information of a public nature, they have often restricted its access for journalists and ordinary citizens.

Article 29 of the law prohibits the restriction of access to open information, although it grants advantages in obtaining information to persons who need this information to fulfil their professional duties, which, from the viewpoint of Article 45 on equal rights of all participants in information exchange, seems somewhat questionable.

The list of documents and information, which are not to be made accessible to the public, is given in Article 37. In particular these include:

– information which, in accordance with established procedure, has been deemed a State secret;

– confidential information;

– information about investigative operations or criminal investigations of offices of the Prosecutor, the Ministry of Internal Affairs (MIA), the Security Service of Ukraine (SSU), and the court, which, if made public, could damage investigative operations, detective enquiry or criminal investigation, could infringe upon the right to just and objective consideration of cases by the court, or could threaten the life or health of some person;

– information about the private life of individuals;

– internal departmental correspondence, connected with the process of decision making, where the decision has not yet been taken;

– information of financial bodies prepared for audits;

– information which should not be made public in accordance with other laws and normative legislation.

The restrictions on the freedom of information will be considered in more detail in Section 2.

Article 32 of the Law «On information» describes the procedure for satisfying official requests for information; this Article obliges state agencies «to impart information about their activities orally, in writing, over the telephone or using public speeches of state officials». Such a formulation enables bureaucrats to refuse to give written answers to specific questions, since they can refer to the public speeches of officials of their agency, whereas the same Article defines a request as a written request to give information orally or in writing, that is, the form of the response is determined by the author of the request. Another form of official request for information is the request to be given access to any non-classified document which is held by State executive bodies or bodies of local self-government in order to find out what it contains.

To ensure the right of free access to information, the question, who is responsible for what, is most important. This question is treated in Articles 35 and 48, which describe the procedure for handling complaints about the unlawful actions of state agencies in questions involving information. The complaints about these actions are dealt with by State bodies at a higher level or in court.

In addition, Article 47 of the Law which deals with responsibility for the violation of legal norms on information sets out disciplinary, civic, administrative or criminal responsibility in accordance with Ukrainian legislation, including responsibility for an unjustified refusal to give information or for the unwarranted inclusion of this information in categories designated as classified.

The Law of Ukraine «On introducing amendments to some legislative acts of Ukraine concerning the question of provision and unimpeded fulfilment of the human right to freedom of speech», adopted by Parliament on 3 April 2003, introduced amendments into the Administrative Offences Code , supplementing it with Articles 212-3. This Article establishes responsibility for an unwarranted refusal to provide information, the untimely or incomplete provision of information, of for the provision of false information, in cases, where such information should be provided on the request of an individual or legal entity in accordance with the Law of Ukraine «On Information» and «On citizens’ petitions». It is, moreover, stated that «State officials, who fall wit them about electoral legislation. At the same time, monitoring of the electoral situation in Ukraine was undertaken by civic organizations, such as the Committee of Voters of Ukraine, its local centres, the Kharkiv Human Rights Group, the Kherson Fund for Charity and Health, the Chernihiv Civic Committee for Human Rights, the Ukrainian Helsinki Human Rights Union, the International Helsinki Federation for human rights, Article 19 and other international human rights organizations.

In this way, civic society from the very beginning of the election process demonstrated its potential to be of influence. In May, a number of civic organizations stressed the need for a broader approach on the part of all involved in the election process to the issue of human rights. Voter awareness and ability to defend their rights and the understanding of these rights are the hallmark of a stable democratic society and considerably influence the expression of the will of the people. However, at the beginning of the election process in Ukrainian society, neither those in power, nor the opposition, had any understanding of the importance of this issue. The overwhelming majority of political forces did not place any emphasis in their activity on human rights violations. Events, however, taking place at the time, gave grounds for thinking that the observance of human rights in future might take on the status of a nationwide problem in the election process.

Already back in April, students in the Sumy region had started active protest against the establishment in their region of a mega-university. In future this conflict was to become a symbol of the crisis and turn into a catalyst for student resistance in Ukraine. In general, students, particularly activists of the civic campaign «Pora», emerged at the elections as a force which from the beginning of its activity set itself the aim of monitoring and publicizing all violations of legislation and of mass human rights violations, as well as being the force which was subjected to the most serious repressions from those in power.

The civic campaign «Pora» («It’s time!») appeared in the night from March 28-29, 2004, together with the change to new time, and made itself known through the simultaneous appearance in 17 regions of Ukraine of stickers asking «What is Kuchmism?» This apparently neutral question without any assessment of the period of Leonid Kuchma’s Presidency, provoked a sharp reaction from State authorities, with 10 people detained that very day (4 – in Chernivtsi, 4 – in Lviv and 2 – in Chernihiv). It was, thus, the law enforcement bodies themselves who provided the assessment of the system built in Ukraine over the years of independence. Half a year before the elections, there was already a clear attempt by the State authorities to use law enforcement bodies to deal with dissenting thought.

The tendency ohin the jurisdiction of the Law of Ukraine «On fighting corruption», shall be brought to answer for such actions in accordance with the Law of Ukraine «On fighting corruption».

We are, however, unaware of any serious reviews, particularly at the court level, in this field, although cases of unjustified refusals to provide information in response to official requests, cases of arbitrarily interpreted statements restricting the provision of information, or cases where there was simply no response to a request, occur quite frequently, especially on a local level.

The Law «On the procedure for the coverage by the Mass Media of activities of State executive bodies and bodies of local self-government in Ukraine» obliges State executive bodies and bodies of local self-government to provide the Mass Media with full information about the activities of these bodies via the appropriate information services of the State executive bodies and bodies of local self-government, to ensure that journalists have free access to this information, except in cases set out in the Law of Ukraine «On state secrets», to not exert any pressure on them and to not interfere in their creative process (Article 2 of the Law). However, there have been many cases of restriction of access to the sessions of local city councils and regional state administrations.

1.2. Access to official public events

Despite their pronouncements of democratic principles, the State authorities, from the Cabinet of Ministers down to local State administrations, and bodies of local self-government have often created obstacles for journalists as regards access to official public events.

Accreditation problems have generally arisen following the publication of material criticizing representatives of the authorities. For example, during 2004, no journalists from any opposition-leaning media outlet (the TV-channels «Channel 5», «Tonis», «TRK Era», the newspapers «Dzerkalo Tyzhnya», the Internet-edition «Ukrayinska Pravda», and «Gromadske Radio (Civic Radio)») were included in the so-called «presidential pool» (a group of journalists, who accompany the President or other officials, at the State’s expense, on trips abroad to cover their activities), so they were often forced to make such trips at the expense of international donor organizatif the State authorities to make total use of all State and municipal mass media in the elections was already becoming apparent at that time. Later this tendency was to develop into a deep conflict that culminated in an information break-through.

From Spring onwards, virtually all State and municipal mass media began hailing the achievements of the government of the future candidate for President of Ukraine, Viktor Yanukovych. The general tone as regards the opposition was either no attitude, or negative. The State authorities, outwardly calm, began actively reorganizing their structures with a view to the elections, at regional level increasing departments of internal policy within the State administrations and conducting official forums of «democratic forces» in support of the current State authorities. The issue of human rights observance as well as anything negative in society were ignored by these «forces», who demonstrated thoroughly Soviet solidarity with the State authorities.

Between June and August, the escalation of events around the Sumy national university led to considerable public resonance. For the first time, the use of force by law enforcement officers and the State authorities did not work. Students, their parents and lecturers asserted their right to freedom of thought and forced Kuchma to annul his decree establishing a single, merged university. The dynamics of the situation showed all the failings of the current State authorities: in violation of the demands of the Constitution and legislation of Ukraine, Article 11 of the European Convention on Human Rights, unlawful compulsion and physical force were used against participants of political meetings and gatherings.

The events had widespread public impact. In June, student movements became active in Odessa, Kyiv, Chernihiv, Lviv, Chernivtsi, Luhansk. However, one can identify the tendency of the authorities of a number of institutes at this time to resist the student wave. Rectors of these educational establishments made a number of public statements forbidding students to take part in opposition actions on threat of expulsion. This marked the beginning of systematic violations of students’ political rights aimed at limiting their political involvement.

Constitution Day, 28 June, provided an impulse within societyons. Moreover, when a new President came to power, the situation was reversed: those left behind were now taken, and the others not. Understandably, such discriminatory policy is, in principle, without any legal justification.

The most typical examples are as follows:

1. On 23 January 2004, the Presidential press-service revoked the accreditation of journalist Hanna Tsukanova from the France-Press Agency for the joint press conference of the Presidents of Ukraine and Russia. On the same day, the Presidential press-service revoked the accreditation of Sergiy Leshchenko, a correspondent of newspaper «Ukrayinska Pravda», to cover the meeting between Leonid Kuchma and Vladimir Putin.

2. An ICTV filming crew was not allowed to attend an Internet-conference held by Sergiy Yermilov, Ukrainian Minister of Fuel and Energy on 4 February 2004.

3. Viktoria Marenich, a correspondent of Radio «Liberty» in Kharkiv was among the members of the Kharkiv regional media who found themselves without accreditation for the All-Ukrainian Conference on Engineering Industry held in Kharkiv, which was attended by President Leonid Kuchma on 2 March 2004.

4. Olga Olenich, Chief Editor of the newspaper «Kremin» was refused access to a press conference at the Office of the Ministry of Internal Affairs in Kremenchuk (Poltava Region). On Saturday, 24 April 2004, the editor declared a «dry» hunger strike in protest against encroachments of freedom of speech with regard to the Ukrainian independent media, and her newspaper, in particular.

5. Members of non-State Vinnytsa media – the Information Agency «Kontekst-Media», newspapers «Channel 33» and «RIA» - were denied access to public events and facilities, visited by Prime Minister Viktor Yanukovych on 9 June 2004, during his visit to the Vinnytsa Region.

6. Journalist Volodymyr Boyko of Radio «Liberty» was not permitted to attend a press conference given by the General Prosecutor, Gennadiy Vasilyev, which took place on 22 September 2004.

7. On 12 October 2004, in the Kharkiv Sports Arena «Lokomotiv», Presidential Candidate Viktor Yanukovych met with young Kharkiv residents. About 20 students, supporters of Viktor Yushchenko, tried to attend the event. A TV-crew of an ATN news program (Channel 7) happened to be nearby. Police officers detained the students and pushed the journalists away, hampering their work. Two men in civilian clothes grabbed a video camera from Andriy Voytsekhovsky, press secretary of the local headquarters of Our Ukraine», and threw it in a fountain.

8. On 24 October 2004, 15 journalists from Kherson, mostly from non-State media outlets, were not permitted to attend to a special session of the Kherson Regional Council, where a resolution was expected to be adopted concerning the political situation in Ukraine and the attitude of the Kherson regional council members toward i to talk about human rights. A range of publications dedicated to this date appeared in the press. The State authorities reminded the country about the Constitution, installing thematic billboards «It’s your Constitution!» «Black Pora»[1] reminded the State authorities about human rights violations by distributing copies of the Constitution to officials of State regional administrations and through their latest sticker campaign «Clean up the State authorities in the country». According to reports from human rights organizations and the press, the State authorities tore down the stickers and in some cases used force to detain «Pora» activists.

The information pressure on voters increased from the pro-regime press. The municipal and State mass media assured the electorate that the regime was powerful as never before. In society the ground had been created for citizens’ lack of belief in the possibility of freely expressing their views. The Gallup polls taken at this time very often registered the following position of voters: nothing depends on my vote, those in power decided everything for me long ago.

July 4 heralded the official start to the presidential campaign in Ukraine, and at once a distinct tendency emerged of using administrative resources in favour of the pro-regime candidate. State officials, employees and functionaries of village and settlement councils, school directors, teachers and doctors were given strict instructions to gather signatures for candidate Yanukovych[2].

The Kharkiv human rights group, the Committee of Voters of Ukraine, the Kherson Fund for Charity and Health, the Chernihiv Civic Committee for Human Rights and other human rights organizations, as well as electoral staff of the candidates, began receiving information that people were being urged to put their signatures at doctor’s surgeries, in village councils, at enterprises and institutions. Similar information started to appear in the mass media.

As sociological polls showed, many voters were not aware that they could put their signature down for several candidates. Explanatory work regarding this was carried out by human rights organizations and also, particularly, the public campaign «Pora», the public initiative «Znayu!» («I know!»), the Committee of Voters of Ukraine, and some mass media. At that time the State authorities provided no explanatory programs. It was specifically at this time that human rights organizations began to receive information that many officials of local government bodies and state officials were being threatened, sometimes in brutally direct form, with dismissal if they did not provide priority propaganda conditions for the pro-regime candidate.

In July the candidates of the second echelon start actively visiting regions. Speakint.

9. On 9 November 2004, Natalya Gridina, a judge of the Suvorovsky Local Court in Kherson, did not allow journalists from independent media to be present at a court hearing concerning a complaint by Lyubov Yeremicheva against unlawful actions by the Regional Governor (then still Sergiy Dovgan).

10. On 24 November 2004, the Mayor of Chuguev (Kharkiv Region), Galina Minayeva, denied journalists Serhiy Rogozin and Roman Gnoyevoy (the latter, by the way, was then a correspondent of the newspaper «Chuguev News» – a publication of the town council!) access to a plenary session of the Chuguev town council. Yury Chumak, correspondent of the newspaper «Tochka Zory», was also forcibly ejected from the town hall, without even a vote of the Council.

1.3. Access to public events during the elections

The problem of access to public events during the 2004 election campaign became particularly acute.

The high-profile situation of acute political confrontation in Mukachevo (Trans-Carpathians Region) at the beginning of 2004 attracted enormous media interest. The attitude toward the press, demonstrated by the authorities and some members of interested political forces during the Mukachevo elections, was highly indicative, above all, from the point of view of the likely coverage of the forthcoming Presidential elections. The methods of «work with the press», employed in Mukachevo, were striking not because of their particular originality, but because of the absolutely open, undisguised disregard for the law - both election and information legislation - demonstrated by the local authorities (with the full support of those in power in Kyiv). The system of isolating members of the media from information about the election campaign and voting in Mukachevo was very simple, with no technological tricks applied. The great number of media representatives, who arrived in Mukachevo a few days before the election, were quite simply not admitted into the premises of the Territorial Election Commission (TEC). The buildings were simply cordoned off by reinforced police units, who referred to the relevant order from the Head of the TEC. It was impossible to contact this same Head of the TEC, there were no official refusals, and effectively there was nobody to hand an official complaint to regarding the impediments placed on journalist activity. Nothing remained but to prepare the appropriate reports about violations and turn to the courts with a complaint about the actions of the TEC.

Overall, according to the Kyiv Independent Media Trade Union, during the Mukachevo events, 15 cases of unlawful refusals to provide journalists with information were recorded.

The Law «On the Ukrainian Presidential Elections» states that «electoral commissions are special collegiate State bodies, authorized to prepare and hold elections for the President of Ukraine» (Part 1g at numerous meetings, within the context of their own platforms, they often address issues involving observance of current legislation, the struggle against corruption and observance of human rights. In Sumy, Chernihiv and Kherson, these candidates actively use the campaign which is being run under the banner of lowering prices for municipal services to force the resignation of the present mayors, In July, the staff headquarters of the candidates start working.

An incident which gained prominence during this month was «the Labazov case». Activists from the Pryluky staff of «Our Ukraine» in Chernihiv region attempted to report the presence of a Yanukovych election headquarter in the building of the Pryluky Pedagogical Institute (this being in violation of Article 64 of the Law of Ukraine «On the election of President of Ukraine»), and, instead, had a criminal case launched against them. The events in Pryluky became known all over Ukraine because they demonstrated that Yanukovych’s team were openly ignoring the law and applying tough pressure, with the police and the prosecutor’s office being used as the main weapons against the opposition.

The pro-regime mass media during this period actively exaggerated the theme of not allowing the «Georgian variant» and pushed the image of Yushchenko as a fanatical nationalist and fascist. July also saw the beginning in the press and work collectives of a mass campaign to clean up Yanukovych’s image. The public had it drummed into them that Yanukovych’s two criminal convictions were merely cases of youthful folly. Information tactics of this kind resulted both in grounds being provided for the emergence of a kind of legal nihilism and the development of anti-Ukrainian feeling among the Russian-speaking part of the population.

In August, the election campaigning became more intense. Administrative pressure took on more flagrant forms. There were cases of people losing their jobs because of their political convictions. Political meetings in support of candidates in the regions became more dynamic. Very often meetings supporting one candidate were used by their opponents, this leading to crowd scuffles and the intervention of law enforcement officers to restore order. These tactics were often used by the socialists, representatives of the Progressive-Socialist party of Ukraine, the communists, and Ukrainian National Self-Defence (UNSO) activists. Trends of this nature give justification for speaking of a low level of political culture in society, particularly among party activists.

In August, Yanukovych campaigners initiated «meetings with the people». Activists appeared in city streets in a uniform with the letter «Я»[3] and distributed campaigning literature – leaflets with the candidate’s program and a book about Yanukovych titled «Encounter destiny».

< of Article 22). In addition, Part 4 of Article 14 reads «electoral commissions, State executive bodies, bodies of local government, officials and functionaries of these bodies are obliged, within the scope of their authority and competence, to provide representatives of the media with necessary information concerning the preparation and holding of the elections». Media representatives are ensured unimpeded access to all public events connected with the elections. On the basis of Part 9 of Article 28, on the day of voting, they are entitled «to be present [there] without a permit or invitation from the relevant commission» (provided that there are no more than 2 representatives of one media outlet).

In order to conceal abuses during the election campaign, members of the press were hampered in various ways in their access to polling stations. Denial of access to information at polling stations – this violation being the «hit» in October and November precisely «thanks to» electoral machinations. Over October and November 64 such cases were recorded (and these are only the cases which were brought to light and which received Press coverage). It is symptomatic that the majority of these violations were recorded in those regions, where the largest number of cases of election fraud and violations were observed – in the Kharkiv, Sumy, Kirovograd, Donetsk, and Lugansk regions.

From the end of November / beginning of December, the situation with the use of State administrative resources during the election campaign changed significantly. The Orange Revolution with the ensuing and quite unprecedented social activeness of Ukrainians forced a significant part of the bureaucracy to believe that serious changes were inevitable. And, after all, it is the way of any bureaucracy to try to find a place for themselves in new circumstances. Perhaps for this reason the attempts at vote-rigging, as well as the attempts to hamper open information about the course of the rerun of voting, were, so to speak, of a «residual» nature. Thus, although denial of access to information remained the most common violation in December – with an obvious regional orientation towards eastern and south regions, nonetheless, it was now, fortunately, on a lesser scale than just a few weeks earlier. Of 19 cases reported by monitoring servicP>During this time, severe financial pressure began to be imposed on business people in all regions. The financial burden of the elections was being foisted on them. In June, huge numbers of businesspeople approached human rights organizations with complaints about stringent tax checks being imposed upon those who did not support the «single candidate from the State authorities» and who did not pay taxes in advance for half a year. Press stories about cases of detention and beating of people close to Oleksandr Moroz and Viktor Yushchenko were common.

The top stories in the mass media were the unsuccessful attack of Viktor Yushchenko on a road in the Kherson region and the problem of withdrawing the Ukrainian military contingent from Iraq. In the regional press, there were isolated publications dedicated to electoral education. However, such efforts were unfortunately not systematic. In general, August gave all grounds for believing that the election would be tough and brutal, and that human rights violations, connected with the election process, would become systematic.

The most dynamic moves to influence voters began in September and October. The main candidates toured the regions themselves, while the social resonance from the student opposition, particularly, events around the public campaign «Pora», and the scandal over Yushchenko’s poisoning suggested the approach of the election finale. Against the background of the information and PR-wars between the main candidates for the post of President, an educational component of influence on the subjects of the election process became a positive pragmatic factor. A series of educational seminars and round tables were run by the Committee of Voters of Ukraine, the Chernihiv Civic Committee for Human Rights and dozens of other human rights organizations.

Widely publicized statements from prominent Ukrainian and international human rights structures during this period reflect mounting concern, and report a negative situation with regard to observance of human rights in the election process and the appearance of signs indicating that people are being persecuted for their political views. It is specifically civic organizations which consistently affirm the priorities of human rights in the election process irrespective of the political position of voters.

The speeches of the main candidates during their tours around the regions clearly showed their key preferences in the election campaign. Yanukovych’s visits to the regions were characterized by the use of administrative resources at all levels of executive power. Directors of factories, heads of institutions, in violation of the right to freedom of choice and expression of this choice, as well as of freedom of peaceful assembly, forced their subordinates to meet the candidate from the State authorities (in many cases people had to sign a piece of paper to prove their presence at the meeting). This tendency was most pronounced in the eastern and southern regions where cases of dismissal for «wrong» political views were not unusual. An ordinary voter could feel the administrative resource everywhere: starting with the doses of information in the mass media which distorted the real situation and ending with shop windows, using only to campaign for the pro-regime candidate.

The situation with Yushchenko’s poisoning is a classic example of the distorted information expanse. The lack of unbiased coverage of the event led to a split in society, with some believing that he had been poisoned, while others convinced that this was a private health matter. The pro-regime mass media used the «poisoning» in their campaign to create a negative image of the candidate. The «temnyki»[4] in compliance with which these events were covered by the vast majority of State and municipal mass media violated the rights of hundreds of thousands of voters to access to information. This problem was the most acute on television broadcasts. With the exception of Channel 5, which in a limited regime worked mostly in western, central regions and Kyiv, all State and municipal channels provided one-sided information, with all information being in favor of the single State candidate. As somebody said at that time, «there is a poisoning of society with information lies». This trend of 100% biased municipal and state mass media negatively affected voter access to information about candidates during the election of 2004 and led to widespread negative resonance both in Ukraine and abroad. Human rights organizations and politicians from all over the world specifically stressed the unequal access to mass media of presidential contenders during this period.

At this time the strongest opposition to infringements during the election process came from the public campaign «Pora». The State regime’s reaction to stickers and actions during September and October moved from persecution of individual activists to mass detentions with criminal cases launched. According to the coordinator of «Black Pora», Mykhaylo Svystovych, over this period of the election campaign, the following number of people were detained:

Ÿ Dnipropetrovsk – es, only five occurred in the centre and in the West (Trans-Carpathian Region), all the rest occurred in the East and South. This fact to a certain degree could serve as a kind of definition of the remains of the «administrative resources».

Some refusals [to allow access] during the voting, already traditional for voting days, were directed at representatives of the Committee of Voters of Ukraine, who, denied the right in law to officially observe the election process, were forced to obtain accreditation for their observers under the auspices of the newspaper «Tochka Zory».

The majority of grounds given for refusing access to polling stations were flimsy, but formally plausible reasons such as the incorrect form of journalists’ ID (no photograph, no signature, the pass having expired). There were, however, cases recorded where journalists were denied access to polling stations with no reason being given.

One should note that an appeal to the court in cases where flimsy grounds for denying access of journalists to polling stations had been given always ended with the court deciding in the journalists’ favor.

1.4. Access to normative legal acts

Article 57 of the Constitution declares: «Everyone is guaranteed the right to know his or her rights and duties. Laws and other normative legal acts that determine the rights and duties of citizens shall be brought to the notice of the population by the procedure established by law. Laws and other normative legal acts that determine the rights and duties of citizens, but that are not brought to the notice of the population by the procedure established by law, are not in force».

The law on the procedure for publishing normative legal acts was passed by Parliament, however President Kuchma used his right of veto, which Parliament could not overcome. The lack of a law is a negative influence on the nature of access to normative legal acts.

Thus, if we take the President’s Decree №503 of 10 June 1997 «On the procedure for the official publication of normative legal acts and their coming into effect», it follows that decrees and orders which do not concern the rights and freedoms of citizens are disseminated by bringing them directly to the notice of interested individuals, State executive bodies and bodies of local self-government. In practice this means that a large number of normative legal acts are not published. There are still a great number of closed-access departmental instructions, which have more weight for the employees of the relevant departments than the Constitution and laws of Ukraine.

Laws and Resolutions passed by the Verkhovna Rada are printed in official publications in both Ukrainian and Russian – in «Vidomosti Verkhovnoyi Rady Ukrainy» and the parliamentary newspaper «Golos Ukrainy». Since 1997 a printed organ of the Ministry of Justice has been published – «Ofitsiyny visnyk Ukrainy», which includes all normative acts registered in the Single Register of the Ministry of Justice the access to which is not classified. Non-State mass media may publish official documents of State executive bodies and bodies of local self-government only on the basis of an agreement between the body which passed the document and the editorial board of the media outlet (Article 22 of the Law «On the procedure for the coverage by the Mass Media of activities of State executive bodies and bodies of local self-government in Ukraine»). In general, the activity of the Verkhovna Rada and other State Executive Bodies is covered in the mass media on conditions defined in agreements between State executive bodies and the editorial board of the media outlet (Article 20 of the Law). That is, non-State media outlets may publish texts of laws and other decisions of parliament only having signed an agreement with the Administrative Department of the Verkhovna Rada. Moreover, Article 4 of the Law prohibits independent translation of official documents from one state language into another.

It was virtually impossible previously to gain access to Draft Laws, except perhaps through acquaintances among State Deputies. With the development of computerized legal systems and the Internet, the situation has improved. These days, texts of some Draft Laws can be found on the free website of the Verkhovna Rada: www.rada.gov.ua. One can follow the entire Draft process, beginning with registration of the submitted draft law in parliament, on the computerized legal system «Liga Zakon» which contains all normative legal acts registered by the Ministry of Justice, draft laws, all resolutions of the Constitutional Court of Ukraine, and some resolutions of the Supreme Court of Ukraine. Access to this system is, however, on a paying basis.

It should be noted that the Ministry of Justice does not register all normative-legal acts. For example, in accordance with the President’s Decree No. 493 of 21 May 1998, acts of the General Prosecutor’s office of Ukraine are not liable to state registration in the Ministry of Justice. As a result of this many normative legal acts of the General Prosecutor’s office are not published. The section «General Prosecutor’s office» on the website www.rada.gov.ua contains only 6 documents concerning international cooperation of the General Prosecutor’s office with offices of the prosecutor of other countries and 2 documents on the procedure for presentation by the State financial monitoring agency of generalized materials on financial operations. «Liga-Zakon» includes only 4 documents adopted in 2003 and 2 documents adopted in 2004. At the same time, such important documents as the Order of the General Prosecutor of Ukraine No. 89 of 28 December 2002 «List of d2 (for putting up stickers);

Ÿ Zhytomyr – 2 (for handing over an appeal to a Territorial electoral commission);

Ÿ Ivano-Frankivsk – 30 (for putting up stickers, 1 fine of 17 UH);

Ÿ Luhansk – 12 (2 – for putting up stickers, 10 – for picketing a Territorial electoral commission, 2 fines of 17 UH for putting up stickers);

Ÿ Lutsk – 2 (for putting up stickers);

Ÿ Lviv – 17 (for putting up stickers, 8 – organizing street actions, 2 – handing over an appeal to police officers, 2 fines of 17 UH for organizing street actions); (the record as far as detentions among the district departments in Ukraine was in the Halytsky district department – 11 people detained).

Ÿ Mykolayiv – 30 (24 – for putting up stickers, 5 – participation in street actions, 1 sentenced to 5 days imprisonment with the detainee also being beaten, for graffiti);

Ÿ Mukachevo – 4 (for carrying leaflets);

Ÿ Pavlohrad – 1 (for putting up stickers);

Ÿ Poltava – 7 (for putting up stickers, 1 sentenced to 2 days imprisonment);

Ÿ Simferopol – 2 (handing over an appeal to police officers);

Ÿ Sumy – 3 (participation in street actions);

Ÿ Ternopil – 3 (for putting up stickers);

Ÿ Uzhhorod – 3 (for putting up stickers);

Ÿ Kharkiv – 8 (for putting up stickers, 1 detained without any grounds, for going to a Yanukovych meeting);

Ÿ Kherson – 2 (stickers, 2 fines of 17 UH);

Ÿ Chernivtsi – 10 (5 – stickers, 1 – participation in street actions, 5 – handing over an appeal to a Territorial electoral commission members);

Ÿ Chernihiv – 12 (11 – for putting up stickers, 1 – organizing street actions).

The purpose of these actions was to intimidate the most aware and active part of the electorate, removing it from the active field of the election process. By infringing the right to information, the pro-regime mass media conveyed materials on detention of «Pora» activists in a biased way, trying to create the image of a terrorist organization which was supposedly planning a series of explosions at polling stations. It was specifically «Pora» activists who were accused of keeping and distributing counterfeit money which had supposedly been used by Yushchenko’s supporters to pay students during a student gathering in Kyiv. The State authorities tried to link the actions of «Pora» with «Our Ukraine» and Yushchenko’s supporters, stressing their alleged nationalistic orientation.

The culmination of the pressure using force was the regime’s use of law enforcement bodies of the Ministry of Internal Affairs. The police initiated criminal investigations against activists of «Our Ukraine» centres, and also infringed the right to freedom of movement, under various pretexts stopping buses with citizens aocuments arising from the activity of offices of the Prosecutor which contain confidential information and which are classified as being of limited access ‘For official use only’», as well as the «Instructions on the procedure for consideration of and decisions on appeals, and personal reception of citizens in offices of the Prosecutor of Ukraine», approved by order of the General Prosecutor of Ukraine No. 7гн of 9 April 2004, which clearly need to be published, are unknown, and as far as we have been able to ascertain, have never been published at all, which is a violation of Article 57 of the Constitution. This unacceptable situation must be rectified: all open normative legal acts of State executive bodies should be published and added to computerized legal systems.

The situation as regards access to normative legal acts of regional State executive bodies and bodies of local self-government is even worse than the situation with central State executive bodies. Local bodies do not send their acts to the central computer legal bases on a regular basis and do not always place them on their own sites, most of which only appeared in 2002. Moreover, not all local bodies have managed to create their own sites. That is why the situation quite often arises that local communities have no opportunity to access even such important acts as the local budget. Sometimes the budget is concealed deliberately, as, for example, in Severodonetsk, where the budget was made public only at the request of the town prosecutor following an appeal from the Luhansk branch of the Committee of Voters of Ukraine.

The problem of access to court decisions is only beginning to be resolved. As already mentioned, all decisions of the Constitutional Court are published, both in the Internet and in printed editions. The most important decisions of the Supreme Court are also published. As for decisions of appeal and local courts, as well as economic courts, these decisions are published rarely and at random, this being caused by their great quantity. For example, in 2004 about 3 million decisions were taken on civil cases. The huge number of court decisions causes problems in creating the appropriate databases.

One should mention that there are a certain number of normative legal acts, adopted by the President, State executive nd journalists who were going to opposition meetings or simply to the capital.

The situation with human rights became especially tense just before 31 October. Large groups of people with no clear purpose, without being informed as to why, were driven out and placed in camps near Kyiv in the period since October 28, 29 and 31. This was recorded, for example, by the Chernihiv Civic Committee for Human Rights in a formal statement. All of this attracted the attention of human rights organizations who perceived these actions of unknown people to be a direct threat to the life and safety of citizens, as well as a restriction of movement. As in the case of restrictions to car traffic, the processions were often escorted by police, giving grounds for suggesting the involvement in this of representatives of the State authorities. At the same time, cases were confirmed where trains moved around Ukraine with people who were used by the State authorities to work on rigging the results of the elections with the use of absentee ballots[5]. All of this gave grounds for human rights organizations, in particular, the Ukrainian Helsinki Group on Human Rights, after the first round of voting, to register the following violations of human rights and fundamental freedoms:

– during the election process systemic persecution and intimidation of the representatives of certain organizations took place, in particular, of the public campaign «Pora» and civic organizations «Student Wave», «The student’s fraternity of Lviv region», and also students of the National university Kyiv-Mohyla Academy, which indicates non-observance by Ukraine of Article 11 of the European Convention on Human Rights;

– severe disruption was caused to the freedom of movement of people around the country. On the day of the elections, as well as on days of mass actions organized by the opposition, representatives of the regime in power significantly restricted the constitutional rights of citizens and led to Ukraine violating Article 2 of Protocol No. 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms;

– substantial restrictions to the freedom of assembly against the background of the election process, as well as the process of voting, indicate non-observance of standards regarding this freedom, affirmed in the Constitution of Ukraine and defined by Article 11 of the European Convention on Human Rights;

– the practice by law enforcement bodies of detaining large numbers of civic activists during the visits to different regions of Ukraine of the candidate for the President of Ukraine and Prime Minister Viktor Yanukovych; this happened, as a rule, without the bringing of any charges or on the basis of patently absurd or unjustified accusations, which indicates non-observance by Ukraine of Article 5 of the European Convention on Human Rights.

Beginning on October 31, when the first round of elections was held, human rights violations began to be of a systematic nature, spreading rapidly and taking on ever more flagrant forms. The most widespread were infringements connected with written inaccuracies in electoral lists. The facts suggest that these mistakes could only have arisen because they were encouraged or consciously ignored by the State authorities.

Representatives of numerous human rights organizations, observers from candidates’ election teams and international observers recorded numerous violations with absentee ballots and the use of voting at home aimed at rigging the results of the elections. In the overwhelming majority of cases, these infringements were initiated by the team of the pro-regime candidate. Numerous international Western observers expressed their concern at the mass infringements during the election. In contrast, observers from CIS countries insisted that the first round of the elections had been held without any significant violations. The head of the Ukrainian Helsinki Human Rights Union, Yevhen Zakharov, in his statement on November 11, 2004 asserted: «the information available today enables us to speak of systematic and State-sanctioned violations of the abovementioned civil and political human rights. Moreover, the list of these violations increases with every passing day. All this shows that top state officials of the country are ignoring the European values and international standards on human rights, the importance of observing which they so recently stressed».

The events of November and December became the final phase of the presidential elections in Ukraine. The extraordinary dynamics of their development surpassed even the most daring forecasts of political scientists. The «Orange Revolution» proved that the State authorities could not determine the results of the elections for voters.

The second round of the elections showed ever more flagrant human rights violations. Inaccuracies in the lists became much more prevalent. There were quite often cases when a person whose political views were known was deliberately left off the electoral. A large number of people who had died, or left the country, or who were not citizens of Ukraine, were included. Tbodies or bodies of local self-government, which should be open, but are illegally classified and are not published. This problem is considered below.

1.5. Requests for information

Human rights organizations constantly use requests for information in their practice in order to obtain official data on the situation as regards human rights in the country. The Kharkiv Human Rights Protection Group has twice – in 2001 and 2004 – carried out an experiment whereby requests for information were sent simultaneously to the majority of central State executive bodies and the Supreme Court, all regional bodies of the Ministry of Internal Affairs (MIA), the General Prosecutor, the Ministry of Justice, the State Committee on Television and Radio, Appeal Courts to gain information and to check how state bodies implement current legislation.

According to Articles 32-34 of the Law «On information» requests for information must be considered by State bodies within 10 days; within this term the State body must inform the author of the request in writing that the request will be answered or that the requested information may not be divulged. Any refusals, furthermore, must be substantiated. The requests must be answered within a month. If the answer cannot be prepared within a month, then the State body must inform the requesting side about the delay in providing the answer, explain the reasons why the request cannot be dealt with within the legally stipulated period and state when the answer will be provided.

Not one single State body of those who we approached answered within 10 days that the request would be satisfied or turned down. Only from the Supreme Court, the Ministry of Justice, the State Department on Penal Issues and the State Department on Nationality and Migration Issues did we receive a satisfactory answer within a month. Answers arrived with infringements in the time periods from the Ministry of Employment and Social Policy, the Ministry of Internal Affairs, the Security Service of Ukraine (SSU), the Ministry of Education (after a repeat request), the Commission on Pardoning under the President of Ukraine. No replies at all were received from the Ministry of Defence, the Ministry of Health and the General Prosecutor. The responses themselves were incomplete, and we were frequently advised to turn to other departments, primarily the State Committee of Statistics. All State bodies do, indeed, pass on their information to the State Committee of Statistics in the approved form. However, we approached the departments which gather and process information in their fields and asked in the main for information which is not contained in statistical yearbooks.

We received substantial answers from the Ministry of Justice, the Supreme Court, the State Department on Penitentiary Issues and the State department on Nationality and Migration Issues. For example, the Ministry of Justice sent averaged statistical data about the financing of regional, district (town) and military courts from the state budget, as well as the number of judges against whom disciplinary measures had been taken and those dismissed. The State Department of Ukraine on Penal Issues answered our questions regarding the financing of the penal system, and gave data as to the level of illness and mortality in penal institutions. Only the department of higher education answered our questions, other department of the Ministry of education did not answer at all.

As regards regional State executive bodies, the situation here is even worse: around 30% of the bodies answer, more often than not with an infringement of the time periods stipulated by legislation. Another 30 – 40% reply after receiving a repeated request, and 30 – 40 % do not reply at all (this does not concern regional departments of Justice, which respond to requests, largely complying with legislation). Refusals to provide information are received more often than substantial responses.

Regional offices of the Prosecutor are particularly bad at responding to these requests. We approached the General Prosecutor and 27 of its regional offices in 2001 and 2004 for information regarding supervision over adherence to the law in law enforcement bodies. In 2001, we received 8 replies with the information requests, although 6 of these were only partially answered. 11 regional offices of the Prosecutor recommended that we approach other departments (5 of these recommended approaching the General Prosecutor as the highest body in the system of prosecutors) and only two prosecutor’s offices – that for the Autonomous Republic of the Crimea (ARC) and for Sevastopol – stated that the data requested was information classified as «for official use only». At that time, 4 regional offices of the Prosecutor did not respond at all. By 2004, the number of those who stated that the data requested was information classified as «for official use only» had tripled, the number of prosecutor’s offices who did not respond at all had doubled, the General Prosecutor himself did not answer, and finally, the number of regional prosecutor’s offices which satisfied the request for information had become four times lower. (More details can be found in the bulletin «Svoboda vyslovlyuvan i pryvatnist» / / «Freedom of Expression and Privacy» No. 1, 2002 and Nos. 2 and 3, 2004[1]).

This situation compelled us in June 2004 to lodge a complaint with the court about the illegal activities (or, in the case of no response, inaction) of offices of the Prosecutor. Although these complaints must, according to law, be considered within 10 days, only in one court case has a decision been taken, with the other court proceedings still continuing. The Pechersky distrhe excessive number of absentee ballots which were registered even in the most remote villages was proof of the use of dirty means by the team of the pro-regime candidate.

Thus, for example, in Mykolayiv the number of people wishing to vote at home in some district electoral commissions reached 1000-1500, this constituting 30% of all voters.

Delays with delivery and analysis of the information in the Central Election Commission, the scandal over a parallel server in the Presidential Administration that «corrected» in-coming data increased public suspicion that the real will of the people was being flagrantly falsified. Immediately after the elections, people came out in Kyiv on to Independence Square in order to support their choice. After the head of the Central electoral commission declared Yanukovych the winner, all Ukrainian society came out on to city squares in order to protect the democratic choice of Ukraine. The attempt to provide a democratic coating for the election, while filling it with totalitarian content proved to have failed.

The meetings on squares all over Ukraine demonstrated the understanding by the vast majority of Ukrainian voters of their civil rights. The chain reaction of protest against the illegal actions of the State authorities embraced all political institutions in the country. The level of understanding of democracy shown by «Maidan»[6] demanded adequate response. Under the pressure of civic society, resolutions of no confidence in the Central electoral commission were adopted by a majority of local councils of regional centers. The Verkovna Rada [Parliament] of Ukraine declared a vote of no confidence in the whole staff of the Central Election Commission and its head Serhiy Kivalov, and the Supreme Court of Ukraine declared the results of the second round of elections null and void. The live broadcast of the session of the Supreme Court bore witness to the establishment in Ukraine of the judicial branch of power as an independent institution. The live broadcast of the whole court sitting without any cuts marked a break-through in the sphere of civil and political human rights.

In Ukraine new trends in society were developing – with respect for law and human rights. Ukraine found itself at the centre of attention of the world community which sympathized with the democratic aspirations of the Ukrainian people and gave them moral support. The re-run of the second round of the elections in general passed more calmly than the previous rounds, and produced a convincing victory for Viktor Yushchenko. The broadcast of the court hearing considering the appeal against the results of the re-run, initiated by the representatives of the presidential contender Yanukovych, once again demonstrated that the Supreme Court was committed to upholding the supremacy of law and was abict court satisfied the claim and bound the General Prosecutor of Ukraine to respond to the request for information, however the latter did so only four months after the decision was passed, and then not voluntarily. Having waited in vain for a response for two months, we sent a letter to the Pechersky Court with a demand to issue a writ of execution in order to approach the executive service. Instead of this, the court sent the General Prosecutor a document unheard of in procedural legislation, entitled «A Reminder of the need to carry out a court decision». Following this, we received a response, but not an answer in substance, but a standard formal reply.

One should note that regional departments of the Ministry of Internal Affairs have become much better at answering requests for information, most of all owing to the principled position of the central apparatus of the MIA (for more details, see «Svoboda vyslovlyuvan i pryvatnist» No. 3, 2004).

We approached the appeal courts with requests for information regarding the number of permits for the interception of information from channels of communication, and how these were distributed between operational subdivisions that have the right to carry out investigative operations. Although we requested only de-personalized statistical data, all the courts refused to provide the information under various pretexts, referring to its secret nature. Only the Chernivetsky Appeal Court gave a general number of permits issued in 2003. We also received a reply in substance from the Supreme Court of Ukraine.

Some actions of state bodies may be regarded as indirect responses to our requests. For instance, the SSU declassified «The list of items of information that constitute state secrets» after our request for information as to the legality of the grounds for classifying the List as secret and after an active exchange of letters and phone calls on this theme. The Commission on Pardoning under the President of Ukraine has, since Autumn 2001, regularly informed the press about the number of convicted prisoners who have been pardoned.

In our opinion, the attitude on the whole of State executive bodies to their obligation to provide all interested individuals with information about their activity, in accordance with the Constitution and the Law of Ukrle to protect citizens’ interests. Finally, the Central Election Commission proclaimed Viktor Yushchenko the winner. The Supreme Court of Ukraine put an end to this complicated electoral marathon confirming by its decision the legality of the victory of the people’s presidential choice. Millions of Ukrainians perceived this as a pledge that from now on human rights in Ukraine would be the recognized and most important value and that the State authorities would have to reckon with them.

We describe below some events connected with the observance of human rights during the presidential elections in Ukraine in 2004 that considerably influenced the socio-political situation in the State.

2. Persecution of representatives of student protest

Some of the most flagrant human rights violations during the elections recorded by human rights organizations were events related to student protests.

The State authorities, understanding that students were the most active part of the electorate, did everything they could to threaten and subdue the students. An event which reverberated through society was the action of the students of Sumy who in April 2004 started protests and sent appeals regarding their disagreement with the decision of the President of Ukraine to establish a National University of Sumy by merging 3 higher educational establishments. On June 28, Constitution Day, they set up a «tent city» in the centre of Sumy on Soborna Street. According to the internet publication, RUPOR, during the month of its existence, the inhabitants of the camp were attacked three times with the use of unknown chemical substances. The students were taken to hospital and one was even placed in an emergency care ward. The police men, who were on duty near the camp all that time, did not react to the young individuals of criminal appearance who tried to provoke the students virtually every day.

The students of Sumy presented an ultimatum to President Kuchma, the deadline for which was to expire on August 1. At about 2 a.m. of that day, police burst into the camp, searched it, pushed everyone into cars and took them to the police department where the majority were held until morning. The students were simply detained without any charges being laid. The next day students demonstrating were surrounded by armed detachments of police which then proceeded to take over the camp. Nonetheless, the students managed to hold out and force the State authorities to back down. The students appealed to all human rights organizations to support them and not to leave them to face the enraged powers alone. The Ukrainian Helsinki Human Rights Union made a statement in support of the students of Sumy, and they were supported by leaders of the opposition parties and prominent state deputies.

In asserting their rights, the students set off on foot to Kyiv. On the border between Sumy and Poltava regions, the column of students was met by 3 buses (2 with only a driver, and the third carrying people in civilian clothes). The operation was headed by the chief of the administration of the Ministry of Internal affairs in Sumy region, Major General Mykola Plekhanov, and the deputy head of the regional state administration, Sokolov who presented the participants of the march with the decision of the court of Romen prohibiting the entry on to the territory of the region of the marchers. After that a mass illegal detention operation of the students was undertaken, however a few of them managed to escape. Together with the students, the state deputy V. Kyrylenko and the political observer of the business information agency «Context» Y. Kuzmenko were detained. Parents and teachers of the detained students picketed the regional state administration of Sumy. The Ukrainian Helsinki Union for Human Rights came out in support of the students, making a statement in which they demanded that the police stop involving themselves in politics and that they observe fundamental human rights and freedoms. In support of this movement, both a committee of mothers and a civic committee to support students and lecturers were organized, which helped the students to stand firm.

The protest of the students of Sumy and the position of the community forced President Kuchma to cancel his decision about merging three educational establishments of Sumy into one National University of Sumy. And although the President explained that his decision was made under duress, this was a victory of public opinion over the interests of those in power.

On the whole, in the election process of 2004, students were a favourite target for the State authorities. Cases where students were detained took place in Vinnytsa (according to information from the Vinnytsa human rights group), and pressure was placed on students with threats of expulsion in Severodonetsk, Luhansk, Nizhyn, Donetsk. We will cite here just a few of the cases.

The most wide-spread violation of students’ political rights was the unwritten prohibition against joining opposition parties. For example, in the Eastern-Ukrainian National University, psychological pressure was applied on students if it emerged that they were members of political partiaine «On information» is openly contemptuous. This demonstrates in the main that State executive bodies continue to pay no heed to society which has empowered them to fulfil designated functions and is entitled to except accountability.

2. Classification of information. State secrets

2.1. Legislative regulation

Article 30 of the Law «On Information» gives a definition of classified information which in legal terms is divided into confidential and secret.

Since confidential information consists of information which is owned, used, or managed by specific individuals or legal entities, the rules for providing or disseminating such information are determined by the owners themselves. An exception would be information, the legal procedure for which is set by Parliament (issues involving statistics, environmental protection, banking operations, taxes, etc.), as well as information, the concealment of which could cause a risk to life and health.

The only law that completely regulates limitations on access to information is the Law «On State secrets», passed in January 1994. In August 1995, a «List of items of information that constitute state secrets» was registered with the Ministry of Justice. In September 1999, significant amendments were introduced into the Law «On state secrets».

Article 1 of the Law «On state secrets» defines a state secret as being a form of secret information in the area of defence, economics, science and technology, foreign relations, state security and the protection of law and order, the divulgence of which could endanger the national security of Ukraine, and which are therefore subject to State protection. The degree of secrecy of the information is determined by the potential damage which could be caused by its divulgence, and different restrictions are introduced according to the degree of secrecy.

The criteria for determining the degree of secrecy were the responsibility of the State Committee of Ukraine on State Secrets and the Technical Protection of Information. This same Committee was a special central executive body for ensuring the defence of state secrets. However, at the beginning of 1999 the Committee was dissolved, and its powers were transferred to the SSU.

Article 9 of the Law stipulates that the classification of information as being a State secret shall be carried out on the basis of a substantiated decision by a State expert on issues of secrecy. Such State experts are the Head of the Verkhovna Rada, other officials in other State executive bodies, authorized by the President of Ukraine to fulfil these functions in the relevant fields of State activity at the application of the head of the relevant body. Article 9 contains a wide list of authorities, rights and duties of State experts. In particular, a State Expert defines the grounds on which information should be classified as a State secret, presents conclusions as to the harm to the national security of Ukraine in the case of the divulgence of the specific secret information, the degree of secrecy of the information («of particular importance», ««top secret», «secret»), the period of secrecy (30, 10 and 5 years, respectively – Article 13).

Article 8 lists the information in different spheres of State activity which may be classified as State secrets. The fact that such an article exists is, undoubtedly, a significant positive feature of the Law. However, serious doubts arise at the present in this list of such information in the area of defence as the size of the Armed Forces of Ukraine and of other military formations; in the economic sphere – of the financing of State orders for providing for defence and security requirements; in the sphere of State security and protection of law and order – of the financing of investigative operations.

One should also note that Article 8 of the Law prohibits the classifying as secret of any information if this would impinge upon the content and scope of constitutional human and civil rights and freedoms, or cause harm to the health and security of the population. Information about the state of the environment, about the quality of food products and goods may not be made secret, nor may information about accidents, catastrophes, dangerous national phenomena and other extraordinary events which have taken place or may take place and threaten the safety of citizens. Other things which may not be classified as secret are: the state of health of the population; the standard of living, including food, clothing, housing, medical services and social security, as well as socio-demographic indicators; the state of law and order, of education and culture of the population; violations of human and civil rights and freedoms; unlawful activities by State executive bodies, bodies of local self-government and their officials; other information which, in accordance with the laws of Ukraine and the international agreements to which it is signatory, cannot be made secret. However this does not mean that the relevant information is absolutely open, since this Law covers only State secrets and does not cover other types of limitations in the field of information.

Responsibility for classifying the information listed above as secret information, as well as certain other violations of the Law on State secrets is set out in Articles 212-2 of the Code of Ukraine on Administrative Offences, and allows for a fine from one to three minimum wages before tax, and for officials – from three to ten minimum wages before tax, and for the repeated commitment of this offence within a year – from three to eight minimum wages before tax and for officials from five to fifteen minimum wages before tax, respectively.

Amendments to the Law «On state secrees which, while officially registered by the Ministry of Justice of Ukraine, were in opposition to the regime in power. This pressure was expressed in different ways, for example, by calls to the offices of the Dean or Rector, by phone conversations to parents or through threats from the administration of the educational establishment. One could also often hear threats from teachers about problems occurring with their studies which were later reflected in biased marks. While allocating ‘budget’ (i.e. free) places for pursuing master’s studies to gifted students, teachers took into account their students’ political views. Actions such as this from the administration of educational establishments directly contravene legislation, particularly, part 3 of Article 8 of the Law of Ukraine «On Education» that proclaims: «A person’s membership of any political party, public, or religious organization which acts in accordance with the Constitution of Ukraine is not an obstacle for his or her participation in the educational process».

Awareness that their human dignity was being denigrated, together with a feeling of outrage, were experienced by political science students of the Eastern-Ukrainian National University named after Volodymyr Dal whose course involved a period of practice in a political party. The students were bluntly forbidden from doing their practice in non-centrist parties or in parties which were not pro-regime in their programs. They were, moreover directed to local centres of the «Party of the regions»[7] and the local public organization «Region» that closely cooperated with this party in the number which almost corresponded with the number of the whole group. This brazen use of students as free man power in political campaigning work was observed during the whole period of practice in the centres of «the Regions».

For the period of the election even visiting entertainment events took on a compulsory nature for students since the events were exclusively organized at that time to support the pro-regime candidate and were a form of indirect campaigning. Almost every week in the university students were given free youth newspapers where one could easily see elements of propaganda for the pro-regime candidate which is also a violation of those norms of the law which expressly forbid political propaganda in educational establishments.

Direct appeals from lecturers to vote for Yanukovych could be heard almost every day within the precincts of universities. «The duty of students of national universities is to vote for the candidate from State authorities. Or do you think your grant was increased for no particular reason?» – lecturers, deans, pro-rectors repeated in an attempt to sway intractable students.

Incidentally, students were actively used not only as objects of political propagandats», which were approved by the Verkhovna Rada of Ukraine in September 1999, significantly increased the range of information which can be classified. As well as information in the fields of defence, economics, foreign affairs, state security and protection of law and order, which could be classified as state secrets, information in the field of science and technology was added, specifically information «about scientific, scientific research, research-construction and design plans, on the basis of which one may create progressive technology, new forms of production, products and technological processes which have important defence or economic significance or significantly influence the foreign economic activity and national security of Ukraine» (Article 8). In our opinion, this is a fundamental mistake of the authors of the new version of the Law since classifying as secret in the field of science and new technology serves only to guarantee backwardness in the future and to encourage the emigration of specialists. In the sphere of State security and law and order, new positions have appeared: information can be classified as a State secret «about the personnel of bodies which carry out investigative operations, «about the implementation of rules of secrecy in State executive bodies and bodies of local self-government, in enterprises, institutions and organizations, State programs, plans and other measures in the area of protecting State secrets», «about the organization, content, state and plans for development of the technical protection of secret information», and «about the results of inspections carried out in accordance with the law by the Prosecutor within the framework of appropriate surveillance over adherence to the law, and about the content of documents of detective inquiry units, criminal investigation and court procedures concerning the spheres mentioned in this article».

The last point is entirely incomprehensible. It is, in our view, inadmissible to classify as secret information the Prosecutor’s surveillance over adherence to the law, particularly given that the range of information which can be classified as State secret in the fields mentioned above is very wide.

New Articles have been introduced which describe in detail the permission procedure for carrying out activity connecte, but also as a resource for political campaigning. Students involved in campaigning for Yanukovych were free not to attend classes, while the attendance of lectures and seminars by other students was strictly controlled. Representatives of universities’ administrations registered students as having missed classes without a valid reason purely on the grounds that these students were supporting the «opposition» and were actively participating in political activities of opposition candidates for the post of the President of Ukraine.

The administration of the educational establishments in the election period created all conditions for «supergrasses» and denunciations, since teachers, deans, and pro-rectors often asked them to report on any «forbidden» political activities of other students observed. These actions undermined age-old moral values of mutual respect and assistance, tolerance and faith.

For example, the press service of the Donetsk regional headquarters of Viktor Yushchenko informed that Tetiana Suvorova had been expelled from a local teacher training college after serving as an observer from Yushchenko’s team at one of the polling stations of the territorial district № 60 in Shakhtarsk, Donetsk region.

This was, furthermore, done without any reasonable grounds: the girl studied well and attended classes regularly. The director of the college in conversation with Tetiana told her that she had better leave town altogether.

The students of Donetsk who actively supported the opposition also spoke of pressure from lecturers and the administration of educational establishments after the day of the election. This was most often observed in technical schools and colleges of the regional centre.

In Luhansk they went beyond just expelling – students were actually beaten up because of their political views. One of the examples was a student of the National University of Luhansk who was attacked, beaten, had his documents taken away, and was after that expelled from the university.

The statements of the Minister of Education and Science of Ukraine, Vasyl Kremin, that it was forbidden to expel students for their political views had no impact on either teachers, or police officers.

In Sumy on the morning of December 22, 2004, officers of the regional administration od with State secrets, as well as the activity of the SPB – secret procedure bodies (not subdivisions, but actual State bodies). SPB have a wide range of rights and levers of influence over the work of enterprises, institutions and organizations which carry out activity connected with State secrets. If the creation of SPB is foreseen by staffing distribution, the position of deputy head in charge of procedure is introduced, who has the duties and rights of a head of the SPB. The SPB are made up of specialists who have access to State secrets with the level of secrecy of «top secret» or, if necessary, «of particular importance». SPB have the right to take part in carrying out the checking procedure for employees whose work is connected with State secrets, to check the condition and organization of work from the viewpoint of protection of secret information and even to conduct searches at workplaces – as far as we can see, this is what is meant by the right «to carry out checks on adherence to the rules of secrecy in the working place of employees who have access to State secrets».

Most unfortunately, we have to state that the State policy on protection of State secrets has changed in the direction of creating still greater secrecy.

Article 39 sets out responsibility for infringing legislation on State secrets, in particular, for classifying information as secret which, in accordance with Article 8, may not be made secret, for applying the stamp for secret information to information which is not a State secret, and also for classifying something as secret without grounds. However, since all this activity is effectively secret and covers wide spheres of activity of the State, and considering that for many decades virtually all State activity was basically secret, it is difficult to expect swift progress in this sphere. It is precisely for this reason that free access to the «List of items of information that constitute state secrets» is of great importance.

Amendments to the Law «On state secrets» did not affect the procedure for compiling or publishing the List of items of information that constitute state secrets (hereafter LIISS). According to Article 12 of the Law (Article 10 in the 1994 version), amendments and additions to LIISS are to be published in official publications not more than three months from the day of receipt of the appropriate decision of the State expert on issues of secrecy. LIISS was printed in the «Uryadovy kuryer» («Government messenger») in August 1995, and reprinted several times in various publications. However, the first amendments to LIISS, introduced by Orders of the National Committee on State Secrets №2 of 29 September 1995, №3 of 12 December 1995, №1 of 16 January 1996 and №2 of 6 February 1996 were not published: the first two have the classification «secret», the last two – the classification «for official use only», and then LIISS itself received the classification «secret», this being a direct violation of the Law. The latter was only declassified in March 2001.

LIISS is rather wide-ranging, detailed and covers the spheres of activity of the State which are defined in Article 8 of the Law «On State Secrets». Since a detailed analysis of LIISS is beyond the scope of this article, we will limit ourselves to certain comments.

While the first part of LIISS, concerning the sphere of defence, does not raise any serious questions (particularly given that, in contrast to the Law, there is no prohibition on information about the size of the Armed Forces), part two – the economic sphere – arouses certain bemusement. For example, Paragraph 2.6 classifies the amount of medical supplies and food supplied to the Armed Forces in time of peace. How could this threaten the national security of Ukraine? Paragraph 2.36 classifies information about the financial expenditure on defence orders as a whole in Ukraine. It is not clear what defence secrets this could reveal, however it makes the budget less transparent and controllable, and this affects the interests of taxpayers.

Paragraph 2.25 also looks odd in that it classifies information about special purpose automobile roads (a description of roads leading to military and other closed access objects, as well as to big railway junctions, stations, bridges, sea and river ports). It would be difficult to imagine special roads leading, say, to large stations which could be kept secret.

As for the sphere of State security and protection of law and order, here any information connected with investigative operations is classified (Paragraphs 4 .1 – 4.9). The Security Service, in turn, becomes entirely closed to society given that even information about the size of its staff (Paragraphs 4 .14) may not be published. Paragraph 4.17 classifies information about the status, results and prospects for cooperation between SSU and security services of other countries. It is baffling as to why information about the fact itself of cooperation, its directions, specific results and even prospects need to be concealed from society, especially given that such information appears in various media outlets and, manifestly, causes no harm to Ukraine’s interests. In our opinion, this point is clearly out of date, and requires significant editing. Paragraph 4.49 prohibits society as a whole from knowing about the actual status of protection of State secrets. It is also unclear what is understand by the words «actual status», however one gains the impression that Paragraphs 4.14, 4.18 and 4.49 are designed more to protect the interests of some agencies than those of the state.

Paragraph 4.48, connected with archival information about the death penalty, also warrants special attention. Firstly, it is not clear why this information is given tf the Ministry of Internal Affairs detained an activist of the student movement of protest Andriy Kotyl, without any explanations. As the student’s fraternity of Sumy informed, the lad was actually taken away from a lecture in the cooperative technical school where he studies. At his request to be shown a summons, the officer answered: «I’m your live summons», after which Andriy was sent to the regional administration of the Ministry of Internal Affairs for a «conversation». His mobile phone was taken away from him and no one could reach him.

As it turned out later, the reason lay in a note that he had written a month and a half earlier at a meeting against the head of the regional state administration Volodymyr Shcherban. At this meeting, the organizers asked people to write wishes and recommendations to the Governor of Sumy which were to be passed on to him. A. Kotyl in his message recommended that the head of the region «paint a cross on his forehead in bright green». The officers of the regional administration of the Ministry of Internal Affairs interpreted this as being a murderous assault on Volodymyr Shcherban.

In general, throughout the election campaign, law enforcement officer used detentions and intimidation against students, as well as searches in dormitories, eviction from hostels or threats to expel them. They planted explosives or counterfeit money and then launched criminal investigations, had students expelled from educational establishments, etc. Through these methods, the State authorities sought to intimidate the supporters of the presidential contender Viktor Yushchenko and to prevent their public actions. At the same time, one observed the regime’s attempts to gather around itself youth organizations of the so-called «democratic direction». Together with official student committees and professional committees, they issued statements appealing on people not to participate in «dubious opposition actions». The International Helsinki Federation for Human Rights, the Kharkiv Human Rights Protection Group, the Ukrainian Helsinki Union for Human Rghts, the Chernihiv Civic Committee for Human Rights and other organizations for human rights repeatedly focused attention on mass violations of students’ rights in their statements.

3. Persecution of members of the public campaign «Pora»

The nucleus of the students’ protests against illegal activities of the government during the election campaign became the public campaign «Pora». Its activity was based on non-violent principles, its aim being to track down any infringements of current legislation in the election process and to put an end to such infringements using non-violent means.

According to information provided by the coordinator of this organization Mykhaylo Svystovych, from the appearance of the civic campaign «Pora», which rapidly formed centers in all regions of Ukraine, it carried out four nationwide sticker campaigns («What is Kuchmism?«, an explanation of Kuchmism («Kuchmism is corruption» «Kuchmism is crime», «Kuchmism is unemployment», «Kuchmism is poverty», «Kuchmism is despair»), «Pora to win»[8] and «Kuchmism is Me»), 174 street actions in 53 settlements (among them simultaneously «The face of Kuchmism», «A decade of Kuchmism in Ukraine», «Pora to remember the Constitution», «Student solidarity» (action of solidarity with the students of Sumy) were held in several regions of Ukraine, including Kyiv, Simferopol, Sebastopol and 22 regional centres, the action against the destruction of the tent camp in Sumy, the action of protest against the arrests of the participants of the march to Kyiv of the students of Sumy, the action of celebration of victory of the students of Sumy «Buy a diploma for yourself», «Don’t let yourself be bought», «No to terror in Ukraine», «The Police with the people»), 23 actions in association with other organizations in 8 settlements, actively helped the students of Sumy during their protests against the merger of their educational establishments. On September 30, the biggest mass action «Pora to elect fairly» was conducted, when activists of the campaign handed over appeals-warnings to members of the territorial electoral commissions all over Ukraine.

During the time of its campaigns, there were 150 cahe highest degree of secrecy – that of a State secret, when the sentence itself was announced quite openly. If this was for humane reasons, then it is not clear why relatives were not allowed to bury those executed and are not told where their burial place is. If the death penalty itself was imposed as a lesson and deterrent to serious criminals, as the State representatives claimed, then it should have been carried out in public. Perhaps it was in fact explained by a subconscious recognition by the State that such an act was immoral? Incidentally, according to the sense of Paragraph 4.48, the number of executions should not be classified as secret. Although the formulation is given in such a way as to allow the authorities to treat statistical data on executions as State secrets, and such cases have indeed occurred at the local level.

One positive feature can be seen in the appendix to the section of the LIISS «General Provisions» Paragraph 5, where the terms and concepts used in the LIISS are defined (Order of the SSU, №3 58 of 2 July 2004).

Responsibility for disclosure of state secrets is regulated by Article 328 of the Criminal Code of Ukraine (Article 67 of the CCU in the 1960 version) and is punishable by deprivation of liberty for a period from two to five years, or, if the disclosure had grave consequences, then for a period from five to eight years. This Article may be applied only to those persons who were entrusted with this information or learned about it in the course of their official activity.

There were not many criminal cases concerning disclosure of secret information in 2004. According to information from the Ukrainian Security Service[2], six citizens of Ukraine were stopped while trying to pass information which constitutes a State secret, as well as confidential information which is the property of the State, to representatives of foreign countries. The illegal plans of Ukrainian citizens, connected with passing on state secrets, were foiled.

2.2. Access to protected information which does not constitute a State secret

In accordance with Statute 30 of the Law «On Information», secret information is that which constitutes « a State secret or other secrets allowed for by legislation, the disclosure of which couses where campaign activists were detained by law enforcement officers (for putting up stickers, participation in street actions, and distributing campaign materials, drawing graffiti or even without any reasons). Hundreds of activists of «Pora» in all were detained, some of them – several times.

Among the repressive measures used by the State authorities against «Pora» were expulsion from universities, searches in dormitories and being thrown out of hostels, mass detentions, administrative punishments, being summoned for questioning to the State Security Service of Ukraine, where they were told to stop political activity, planting explosives or counterfeit money and then initiating criminal investigations. For examples, in the information bulletin «Human rights» № 35, 2004, cases of «Pora» activists persecutions are recorded in Ivano-Frankivsk and Chernihiv (breaking up a public action and beating activists), Lutsk, Luhansk, Donetsk, Kirovohrad (intimidation and persecution by criminal elements).

The most flagrant violations took place in Kirovohrad, Mykolayiv, Poltava, Kharkiv, and Sumy. In Kirovohrad an activist of the campaign was taken into a forest by unknown people, who covered his head with a sack, threatened him with a knife and beat him up. In Mykolayiv police officers detained an activist of the campaign who was drawing graffiti, beat him up severely, and the court sentenced him to 5 days of administrative arrest. In Poltava an activist was detained while posting leaflets «Kuchmism is Me» and sentenced to two days of administrative arrest, without his relatives being notified. They achieved such psychological intimidation and terror, and kept him in such conditions, that the lad, after his ordeal, ended up in hospital. Two students detained in Sumy during actions of protests had grenades planted on them during detention, The officers then said that these were training grenades, and that when the students had been searched, cold weapons and drugs had been found. Criminal cases were launched, and they were sent to prison but were released in two days. The grenades, cold weapons and drugs had disappeared somewhere. In Kharkiv, two «Pora» activists were detained right after they received a parcel at «Autolux», forced to get into different cars and taken to Leninsky district department, supposedly to find out if there was anything criminal in the parcels. The activists’ passports were also taken away. They were kept in the district department for a few hours, the campaign materials of «Pora» which was passed on through «Autolux» – stickers, leaflets, etc. – were confiscated and the activists were released. However, as it turned out, page 11 of their passports had been torn out – the page with registration information. There has still been no response to their formal complaint to the office of the prosecutor regarding this.

As well as this, activists of the «Pora» campaign had psychological pressure put on them. In the University of Luhansk, the pro-rector searched the room of a student while he wasn’t there and threatened to expel him because she had found legally printed but opposition press material. An activist from Kherson who formally complained about the head of the regional state administration Dovhan because of the latter’s campaigning activity on behalf of the presidential contender Yanukovych (state officials are prohibited from campaigning), was threatened with expulsion by the director of his institute, as was another activist who appeared as a witness at a trial. A «Pora» activist was expelled during her second year at the State Pedagogical University of Kirovohrad.

Police and state officials constantly received instructions to look out for activists of the campaign. For example, police officers ld be harmful to an individual, society or state».

The definition of state secrets and the rules for access to information which is deemed a state secret are prescribed in the Law of Ukraine «On State secrets». As for «the other secret information allowed for by legislation», the situation is much less clear. The procedure for classifying information as secret in accordance with Statute 30 of the Law «On information», is determined by the appropriate bodies in compliance with the demands of the Law «On information». Since Statute 21 of this law stipulates that the sources and procedure for receiving, using, circulating and keeping official information from state bodies at all levels shall be defined by the laws relating to these bodies, it is entirely reasonable to except this to be reflected in the relevant laws, for example, «On the Police» (1990) or «On the Security Service of Ukraine» (1992). Article 3 of the Law «On the Police» prohibits the disclosure of information which constitutes official secrets, while Article 7 of the Law «On the Security Service of Ukraine» – prohibits the disclosure of military, official and commercial secrets, however nowhere in the law is there a definition of these terms.

In this way, the classification of information as secret is, presumably, determined and regulated by internal departmental acts or instructions, and the basis for their creation can only be Article 37 of the Law «On information», which contains general provisions about information which does not have to be provided on request, in particular, «information that are not subject to disclosure in accordance with other legislative or normative acts». One should note here that, in accordance with Article 21 of the Law «On information», unpublished normative acts which concern human rights and freedoms do not have legal force.

Which information does the state protect and on what grounds? Some kind of answer to these questions is provided by the Concept of Technical Protection of Information (hereafter TPI), approved by the Cabinet of Ministers of Ukraine in October 1997. According to the Concept, the leak of information which constitutes a State secret or other secrets allowed for by legislation, confidential information which is the property of the State, is one of the main potential threats to Ukraine’s national security in the sphere of information. The threat to the security of information in Ukraine is explained, according to the Concept, by various factors, among which in first place would be a «lack of a thought-out State policy in the sphere of information technology, which could lead to uncontrolled and illegal access to information and its use», and also «the activity of other states aimed at gaining an advantage in foreign policy, economic, military and other spheres».

Technical protection of information is defined in the Concept as «actsearched dormitories of the Kyiv-Mohyla Academy and the State Pedagogical University of Chernihiv, warning that if they found any such activists, the latter would be thrown out of the hostel. In many cities, police officers stopped activists supposedly to check their documents or because of a resemblance to a wanted criminal. At this, police officers noted names and place of study or work of the activists. Also activists of the «Pora» campaign were summoned for warning conversations where they were threatened and intimidated. Many conversations like this took place in Feodosiya.

The Kharkiv Human Rights group, the Litigation Fund of Ukrainian Helsinki Human Rights Union, the Ukrainian Helsinki Human Rights Union, the Vinnytsa Human Rights group, the Chernihiv Civic Committee for Human Rights granted legal assistance in a range of cases where campaign members were persecuted by law enforcement officers.

According to the informational bulletin «Human rights» № 35, 2004, in Kharkiv on November 17, 2004, 6 «Pora» activists were illegally detained (5 from Kyiv and 1 from Kharkiv). They spent a night in the Dzerzhynsk District Police Station, and the next day a trial took place that considered a protocol about an administrative infringement according to Article 185 part 2 of the Code of Administrative Infringements. The lads were defended by lawyer Volodyymr Zinchenko who was invited by the Kharkiv Human Rights Protection Group within the framework of the project for granting legal assistance to victims of human rights violations. A petition was submitted to summons police officers in view of their unlawful actions, the lawyer proving that there had been no grounds for the detention. That very day the «Pora» activists were released, and the hearing was postponed. Later there were two more court hearings on this case, and on December 7 a final decision was made: the charge of administrative responsibility against the «Pora» activists was withdrawn, and the court restricted itself to a verbal reprimand.

According to the internet publication «RUPOR», on October 23 a participant of the public campaign «Pora», Volodymyr Zakaliuzhny, was detained during a concert while distributing leaflets criticizing the activity of Yanukovych. He was taken to Shevchenkivsk Police Station in Kyiv and accused of having stolen a mobile phone. The lawyer of «Litigation Fund» of the Ukrainian Helsinki human rights union, Hanna Yudkivska, lodged a complaint about the actions of the police officers, and gained Zakaliuzhny’s release from custody. On November 19, 2004 the criminal case regarding Volodymyr Zakaliuzhny was closed «due to the absence of a crime». Zakaliuzhny’s complaint regarding the unlawful actions of the police officers and demand for compensation are presently being considered.

The most blatant persecution of the «Pora» activists took place in Donetsk. Accoivity aimed at ensuring through technical and engineering means of the procedure for access, the integrity and accessibility of access (making it impossible to block access) of information, which constitutes a State secret or other secrets allowed for by legislation, confidential information, as well as the integrity and accessibility of open information which is important for individuals, society or the State». This definition is made more precise by one of the principles of the formation and implementation of State policy in the sphere of TPI: «the need to protect, through technical and engineering means, information which constitutes a State secret or other secrets allowed for by legislation, confidential information, which is the property of the State, open information which is important for the State, regardless of where this information is circulated, as well as open information which is important for individuals or society if this information is circulated in State executive bodies and bodies of local self-government, the National Academy of Sciences, the Armed Forces or other formations, law enforcement bodies, in State enterprises, in State institutions and organizations».

Of the concepts mentioned in this list, only the concept of State secret is clearly defined by the law. The concept of «confidential information, which is the property of the State» remains unclear. «Open information which is important for the State, regardless of where this information is circulated» is also an endlessly vague concept.

Such formulations lead to only one conclusion, this being that, ultimately, State officials would like to take any decisions about which information should be protected solely at their own discretion. Moreover, the Concept foresees the creation of TIP units in all places where there is a need to protect information. In our view, this gives serious grounds for believing that the implementation of the Concept will significantly and unwarrantedly restrict the access of the community and, simply, of individuals, to entire categories of information which they require.

As time was to tell, our fears were not unfounded. On 11 May 2004, the Verkhovna Rada of Ukraine passed the Law «On amendments to certain legislative acts of Ukraine (concerning the protections of State secrets)». This law had previously been passed on 9 July 2003, however the President had used his power of veto after severe criticism of this Law from both Ukrainian and foreign experts, and paragraph 6 of the President’s comments had demanded that «a definition be given of confidential information which is the property of the State». Nevertheless, the Law was passed again in virtually the same form. It significantly narrows the boundaries of the constitutional right to information (this in itself being a violation of Statute 64 of the Constitution which prohibits any limitation on constitutional rights and liberties, aside from cases specifically allowed for by the Constitution). We would mention Part 1 of Article 34 of the Constitution: « Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice». Part 1 of Article 2 of «Freedom of the Activity of the Printed Mass Media», the Law on the press now declares «the right of every citizen to freely and independently look for, receive, locate, retain, use and disseminate any information which is open under the rules of access with the help of printed means of mass media». The main right of journalists to information is similarly narrowed: a journalist now has «the right to freely receive, use, circulate (publish) and keep that information which is open under the rules of access (p.1 of Part 2 Article 26 of the Law on the Press). In this way, two fundamental principles of legislation on the freedom of information[3] are being violated, and it is now simply impossible to use the three-component test of the European Court of Human Rights as to the presence of «damage» and influence on «public interests», which had been taken into consideration in the current Law «On information»[4]. In particular, it is impossible to use the concept of public individuals, the amount of confidential information about which must be much more open for the public, than that about private individuals.

Thus, it is now not permitted to receive, use, circulate and keep information with restricted access, that is, according to Article 30 of the Law «On Information», confidential or secret information. And a definition of confidential information which is the property of the State has still not been given.

Let us look carefully again at Part 2 of Article 30: confidential information – this is «information which is owned by, used by or at the disposal of specific individuals or legal entities and is circulated at their wish on the conditions they stipulate». We would note that, although not stated directly, owners of confidential information may be only individuals or non-governmental legal entities, since, in accordance with Article 19 of the Constitution, «State executive rding to the information bulletin «Prava Ludyny» [«Human rights»] № 34, 2004, on 10 December, 2004 a camp of tents was set upon and destroyed by about 100 men who looked like criminals. The journalist Serhiy Vahanov was beaten up, and his video recorder smashed. On December 11, 2004 in the building of the Voroshylivsky District Police Station in Donetsk an unknown person (probably one of the officers) threatened a «Pora» activist Ostap Kryvdyk because he was speaking Ukrainian. This happened in the presence of the «Salon» newspaper journalist and other activists who made a complaint about it to the police.

Detentions took place in some other Ukrainian cities and were reported by the well-known non-governmental organization «Amnesty International».

Andriy Kulibaba, an activist of the Vinnytsa department of the youth oppositional initiative «Pora» was detained on October 20 by police without any explanations. On October 21 he was sentenced to 10 days administrative arrest according to the provisions of the Code on Administrative Offences for «deliberately opposing demands of the police». It was claimed that he had pushed a policeman and torn a button from his uniform. On October 23 he was suddenly released and the arrest was replaced by a fine.

Oleksandr Puhach was detained in Vinnytsa on October 21 and charged, supposedly for refusing to give his name to a policeman, however witnesses’ evidences differed and he was released. A few minutes later, while standing on the stairs of the building, he was detained again before witnesses’ eyes and kept in the police department for four hours and then informed that he would be charged with «hooliganism».

In Kirovohrad on 21 October, masked police officers detained Oleksandr Tyshchenko while he gathered leaflets and stickers published by the «Pora» initiative for their circulation. He was also accused of «deliberate opposing to police officers», but the case was closed and he was released on 25 October.

On 14 October, police officers announced that they had discovered equipment for producing explosives in the central office of the organization «Yellow Pora» in Kyiv, although during the first search with the participation of a third party, nothing was detected, and the equipment was «found» only when the police ‘searched’ alone. After that there were similar searches in Chernihiv. A participant of the campaign «Pora» Oleksandr Lomako was detained and accused of keeping explosives, which could lead to a prison sentence of 2-5 years. The Police claimed that they had found in his flat a brown substance that could be an explosive. A criminal case was launched against him. Only the interference of the Chernihiv Civic Committee for Human Rights, and legal assistance provided by a member of the CPCHR, lawyer Oleksandr Trofymov, stopped the lad being imprisoned.

Summing up the stated examples, we would like to stress that activists of «Pora» were saved from mass punishment and isolation in prisons thanks to the extensive involvement of the community and human rights organizations, thus enabling the public campaign «Pora» to make its contribution to the events of the elections of 2004 in Ukraine.

4. Illegal actions of the police

The elections of 2004 demonstrated a dangerous tendency of involvement of the police in political games. Numerous facts of human rights violation against Ukrainian citizens demonstrate the use of police officers in intimidating voters.

Long before the election at one of the Plenary sittings of the Supreme Rada, a report by the first Deputy Minister of Internal Affairs, Mykhaylo Korniyenko, «On the state of reforms and legislative guarantees for the activity of law enforcement bodies of Ukraine» was heard. The speaker acknowledged: «We are justly criticized for non-observance of rights during investigative operations». According to his words, in the structure of the Ministry of Internal Affairs, the post of Minister’s Advisor on Human Rights had been introduced, and also a public council established with the participation of well-known public activists, State deputies, scientists, and people with great social authority. He mentioned that similar councils had been established in regions. But such public statements of democracy and transparency as regards police activity are seriously contradicted by electoral practice.

During the election process, the police were used to intimidate those with independent views, to carry out illegal detentions, searches, and to restrict freedom of movement (by blocking vehicles with people going to opposition meetings), freedom of speech and the right to peaceful assembly and gatherings, to strip off stickers, seize the issues of opposition press, damage health during detention of opposition representatives, use physical violence against authorized representatives of candidates, to provide illegal shadowing of the candidate Yushchenko, to campaign for the pro-regime candidate, etc. For example, the information bulletin «Prava Ludyny» [«Human rights»] № 31, 2004, stated the following facts reported by the Kharkiv regional staff of Viktor Yushchenko:

On November 6, 2004 during a nationwide action «People won’t be overcome», in Kharkiv on Svoboda (Freedom) square – an officer of the Kharkiv administration of police, colonel Zherebtsov physically threatened a representative of the regional staff of V. Yushchenko, a correspondent of the «Razom» [«Together»] newspaper Shyshkin (correspondent’s card № 26 K). This occurred after Shyshkin had filmed on video numerous officers of police, including chiefs of the city’s police, who for some reason were on the square not far from the place of the meeting. The correspondent was also shooting a bus with an original advertisement: «We’ll change life for the better together – the Party of Regions». In this bus for some reason there were police officers with shields and sticks.

Police officers also tried to interfere with the course of the meeting, threatening to close it «because of campaigning in favour of one of the presidential contenders».

Police officers repeatedly injured supporters of the opposition presidential contenders.

On August 21 in Dzerzhynsky district of Kharkiv by the metro station «23rd of August» a veteran of World War II, Vasyl Sokolov, was beaten up for distributing opposition newspapers.

On October 4, officers of the municipal police by the building of the Leninsky district executive committee beat up Kostyantyn Kanishev, an authorized representative of the candidate to the post of President, Mykhaylo Brodsky.

On October 12 masked officers of transport police beat up Yuriy Ahibalov who was defending students who had been illegally detained on Pryvokzalna square.

On October 29 officers of the Frunze district police station of Kharkiv beat up Ihor Korol, the deputy chief of Yushchenko’s regional staff and assistant to State deputy Filenko.

In one of its digests, the Chernihiv Civic Committee for Human Rights reports that a police officers O. Demchuk beat up an authorized representative of the presidential candidate Oleksandr Moroz in Chernihiv region.

Such cases occurred over the whole territory of Ukraine which gives reasons to speak of the systematic nature of the above-mentioned infringements and their sanctioning by top State officials.

A few cases illustrating actions of the police in Kyiv.

The case which had the greatest impact was probably the beating on October 23 by police officers in civilian clothes of people picketing the Central Election Commission. After this, ambulances were needed to take 12 people to hospital with head injuries. Then at about 10:50 pm a column of about 50 people came up to the Central electoral commission, wedged their way into the crowd and, using hammers and bottles, started beating demonstrators standing by the state institution. The deputies from the faction «Our Ukraine» Dayd Zhvanya, Yuriy Pavlenko and Oleksandr Tretyakov managed to detain three raiders. Two of them had police documents and registerbodies and bodies of local self-government and their officials are obliged to act only on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and the laws of Ukraine», that is, they cannot circulate information at their wish on the conditions they stipulate». Thus, one cannot consider that Part 2 of Article 30 gives a definition of «confidential information which is the property of the State».

This discrepancy is not resolved by the introduction into Law No. 2663 of parts 3 and 4 of Article 30. Part 3 states that with regard to information which is «the property of the State and is in use by State executive bodies and bodies of local self-government, businesses or organisations with any form of property, limited access in accordance with the law and confidential status may be assigned in order to preserve the information. It is entirely illogical and extraordinary to offer limited access to information «in order to preserve the information». It remains unclear which law this statute is in accordance with. As regards part 4, where the information which cannot be assigned such status is listed (this almost word for word repeating the list of information which cannot be considered a state secret according to Article 8 of the Law «On State secrets», cf. above), one can confidently predict that in a given case, these restrictions will not work: it is precisely state officials, and not the law, who will decide whether to limit access to information for those reasons, or not. The ‘negative’ definition of confidential information which is the property of the State given in the Law could work if the creation of a «list of items of information which are confidential information which is the property of the State» had been allowed for, as was the case with items of information which are a state secret. It would then have been possible to avoid the said discrepancy where one and the same information is, according to the wishes of one department circulated, while another decides that it should be classified as secret. However the law passed does not allow for any such «List» to be created.

Thus, the information which is protected by the State is not defined by Law, with the exception of information which constitutes a State secret. Therefore the classified stamps which State bodies generously distribute over various normative acts (Decrees and directives of the President, resolutions, instructions, orders of State executive bodies, etc) – «Not to be published», «For official use only», «Not to be printed» – are arbitrary and illegal. Only classifications of secrecy, that is «of particular importance», «top secret» and «secret», which represent established levels of secrecy in accordance with the Law «On State secrets», can be considered legal.

However, even if documents are stamped «Not to be published», «Not to be printed», etc, there still have to be appropriate procedures for allocating or removing (revoking) such classifications, and for defining the grounds for taking such measures. There clearly also need to be some regulations for organizing access to such documents. However our search for such normative acts was unsuccessful. It transpired that normative acts on the work with documents classified as «Not to be published» and «Not to be printed», officially registered by the Ministry of Justice, do not exist at all.

As regards procedure for working with documents stamped «For official use only» (OU), this was approved by the Cabinet of Ministers of Ukraine in Resolution No. 1813 of 27 November 1998 «On the approval of Instructions for the procedure of accounting, storage and use of documents, cases, publications and other physical forms of information, containing confidential information which is the property of the State». It is surely an irony of fate that this resolution was published in «Uriadovy kuryer» («The government messenger») on 10 December, on the 50th anniversary of the adoption of the Universal Declaration of Human Rights.

According to Section 2 of the Resolution, central and local executive bodies and bodies of local self-government were obliged, within a six-month period, to design and put into effect a list of types of confidential information which are the property of the State. This information was to be given the stamp OU. Who specifically, and on the basis of which criteria, was supposed to decide which particular information was confidential was not defined by the Resolution. It is also not clear whether these lists will be available for general view, and virtually every such body could have its own list.

From the point of view of principles of information legislative, it would be logical to assume that a «List of items of information which constitute confidential information which is the property of the State» would be created and published. However, from 1999 to 2002 no such list emerged. One should also mention that, in accordance with Paragraph 3 of the Resolutions, it is not only State executive bodies and bodies of local self-government who must follow the Instructions, but also enterprises, institutions and organizations regardless of their form of ownership.

The lists may contain not only the information, which is created by the executive body in question, but also the information which it owns, uses or has at its disposal. This means that information which has reached a State body may become confidential at the wish of the head of the body, while the creator of the information (the first source) knows nothing about this.

According to Paragraph 5 of the Instruction, documents of legislative bodies and higher executive bodies, and higher court bodies, which were issued in 1991 and later without classifications limiting access, but which were not published in official publications, may be considered as material containing information of restricted use with the stamp OU.

The conditions for storage, copying and distribution of documents classified as OU are no less severe than those for documents which constitute State secrets: they must be registered, all drafts and variants must be destroyed, names and even positions of the authors must not be indicated, and so forth (Paragraphs 17-28 of the Instruction).

In order to have access to documents classified as OU, representatives of the mass media must in each specific case gain written permission from the head of the institution which established the stamp, and only on the basis of a written decision from an expert commission as to the advisability of giving the particular document to the journalist.

It would thus seem that the likelihood of a journalist obtaining information with the stamp OU is extremely small, especially given that it is the head of the body which handed out the information who bears the responsibility for disclosing confidential information, rather than the journalist. What an expert commission is, and what the rules of its work are remain unclear from reading the Instruction. It is clear only that it comprises «employees of the chancellery, the restricted secrets unit and other structural units».

Paragraph 32 of the Instruction classifies a case with documents which are not secret as OU if there is even one document with this stamp included. In such fashion one could restrict access to any information.

In our view, Paragraphs 51 and 52 of the Instruction are particularly telling and characteristic. According to these, cases with the stamp OU, which have no scientific, historical, or cultural significance and are of no practical use, are to destroyed, having first «without fail been shredded to a state which would preclude any possibility that they could be read».

The Criminal Code, which came into force on 1 September 2001, contains Article 330 (in the CCU of 1960 there was no such article) which stipulates punishment in the form of deprivation of liberty for a period of up to three years, or deprivation of liberty for two to five years with no right to hold certain posts, or engage in certain activityed weapons. The detained were pinned down on the floor in the hall of the Central electoral commission. Before that, deputies Zinchenko and Tretyakov were also able to detain the chief of the department for fighting organized crime in Kyiv, Hoshovsky, who, according to their words, had led the special operation attacking the demonstrators.

Later the police officers who had participated in beating peaceful citizens were awarded or promoted. The Ministry of Internal Affairs representatives denied that these people had been police officers, despite clear evidence that they had. There was no information about initiating a criminal investigation into this incident. It is most likely that there was no such investigation. At the same time a clash happened between deputies from «Our Ukraine» and representatives of the special division who were blocking entrance to the Central electoral commission where the question about establishing 400 polling stations in Russia was being decided. This was clearly in order to consider this important question about 1 million votes in Russia in the absence of representatives of the presidential contender Viktor Yushchenko.

On July 23, 2004 a picket was broken up outside a cinema.

An activist of «Our Ukraine», Vadym Hladchuk, was summoned to the Kyiv City Administration of the Ministry of Internal Affairs on a charge which has since been the basis of several demands for an explanation from State Deputies Yuriy Lutsenko and Yuriy Pavlenko.

On August 20, 2004 there was an explosion at the Troyeshchyna market. Police accused representative of «Our Ukraine» of causing it. In fact, police officers were involved in this «black PR»[9]. Officers of the Ministry of internal affairs produced a false card of a member of the Ukrainian People’s Party that was said to belong to one of the «bombers».

On September 17, police officers detained participants of a peaceful action «SOS» involving mothers of unlawfully detained and accused activists from Donetsk, Kirovohrad and Chernivtsi. The detained were transported to the Darnytsky District Police Station in Kyiv. Only the efforts of the community and human rights organizations for release of the participants made police let them go.

Here is the text of one of the appeals given at that time by the internet-site «Maidan»:

«7 buses «Volvo» which belong to the Kyiv municipal auto enterprise № 1, together with drivers are «being held prisoner» of a police special division base somewhere between Vyshhorod and Vyshneve.

The drivers ask through «Maidan» for people to approach the city authorities and ask on what grounds the drivers are being detained by this special division, given no travel allowance, nor any explanation as to why.

The drivers ask for those holding them to be sent away, or at least to allow them to escape from captivity by themselves».

In general, the Maidan web site placed information about law violations by police almost every half an hour. We can cite some examples, placed on the site.

On December 2, during the «Orange Revolution», at Kyiv’s radio market a police operation unprecedented for Kyiv was conducted. People in police uniform issued an ultimatum demanding that all orange symbols be removed from the market which had donated 12 thousand torches to the camp of tents, and was also providing other assistance. Employees of some pavilions were ordered to take down orange flags, otherwise they would not be allowed to start working.

According to information received by a correspondent of the internet site «Maidan», officers of the department for fighting organized crime in Kyiv persecuted private businessmen who were supporting Viktor Yushchenko. In one of the trade centres of the capital, certificates were examined only of those businessmen who did not hide their political views. Later they were all summoned to the department for fighting organized crime.

On November 21, 2004 at the district electoral commission № 56 (Mariopol) an elector noticed by chance that the head of the commission was throwing a bundle of voting papers into a ballot-box. He submitted the relevant protest, but in response the police brought a charge of hooliganism against him and he was taken to court.

Sometimes actions of the police were almost indistinguishable from the actions of ordinary bandits. For example, in Luhansk, a campaigner from the regional staff of Viktor Yushchenko, Kyryl Voroshylo, was seriously tortured (receiving an injury to his thorax). The coordinator of the youth coalition «Our Ukraine», despite concussion, was held in a cell 2x2 meters on a concrete floor on the basis of a court order. As a result of the concussion, his ears and nose bled all the time, his pressure increased, and he felt nauseous. Medical aid was, nevertheless, only provided after his mother and students picketed the police administration.

In Mykolayiv 10 police officers beat up the Head of the Mykolayiv regional organization of the Ukrainian People’s Party, Volodymyr Hurin. Despite being faint, no one was allowed in to see him. Doctors confirmed very low blood pressure. In Odesa region the head of the Territorial electoral commission № 140 Anatoliy Chmil was also beaten up.

The general picture of participation of the Ministry of internal affairs in the election is thoroughly appalling. Instead of affirming voters’ rights, the police was transformed into a punitive machine against those voters who had views different from those of the regime. Virtually throughout all of Ukraine forces of the Ministry of internal affairs detained people for setting up camps of tents and sticking up campaigning leaflets, and imposed pressure to stop opposition groups distributing campaigning materials. One is forced, therefore, to conclude that human rights violation by police were of a systematic nature.

The abovementioned facts give every reason to state that the law enforcement bodies, in violation of the Constitution of Ukraine, the laws of Ukraine «On the police» and «On the Presidential elections in Ukraine», actively interfered with the course of the election campaign on the side of the pro-regime candidate, ignoring fundamental human rights.

5 The use of administrative resources by representatives of the State regime and local bodies of self-government.

The administrative resource in the election campaign of 2004 became the favourite instrument of the State authorities. Despite the prohibition, contained in point 1 of clause 63 of the Law of Ukraine «On the Presidential elections in Ukraine», against officials and functionaries of State bodies and bodies of local government participating in election campaigning, officials of the executive government structures at all levels provided a powerful campaigning mechanism for the pro-regime candidate Viktor Yanukovych. Their level of involvement in supporting the regime’s choice went beyond all limits. From the beginning of July, numerous human rights organizations started receiving information from ordinary officials of bodies of local government complaining of pressure being brought to bear on them by state administration bodies to coerce them into urging voters to support the pro-regime candidate. People were pressurized into signing documents in doctors’ surgeries, the heads of institutions coerced their subordinates, school directors – their teachers and parents, heads of village’s councils – the inhabitants of their settlements. The compulsion was also expressed in threats of dismissals against those who objected.

Everything was done in a compulsory way – even attending meetings of Viktor Yanukovych. People were simply taken to meetings supporting the pro-regime candidate in all regions of Ukraine, without anyone being asked for their consent. This practice was especially widespread in Kharkiv, Luhansk, Sumy, Kirovohrad, Chernihiv, Donetsk and Dnipropetrovsk regions. In the September issue of the Chernihiv Civic Committee for Human Rights Digest a typical picture for up to three years, or without this, for disclosing to or keeping in order to disclose to foreign enterprises, institutions , organizations or their representatives, economic, scientific and technical or other information which constitutes confidential information which is owned by the State. Given that the latter has not been defined by the law, and that lists of such information, should they exist, have not been published, it remains a total mystery what this is about. Article 330 may be applied only in relation to individuals to whom the information was entrusted or to whom it became known via fulfilment of their official duties. If this disclosure has led to serious consequences, then it is punishable by deprivation of liberty for a period of between four and eight years, with no right to hold certain posts, or engage in certain activity for up to three years.

In an attempt to ascertain how widely these illegal classifications restricting access are applied, we have analyzed all documents, passed by several central bodies in the years 2000, 2001, 2002, 2003 and 2004 in order to find out how many documents contained this classification. The computerized legal system «Liga:Zakon» was used for this purpose. Our analysis showed that the largest number of documents with the classifications mentioned were passed by the President of Ukraine and the Cabinet of Ministers, with the President having used the classification «Not to be published», the Cabinet of Ministers – «Not to be printed», while other bodies in the main used «For official use only (OU)»:

– 95 out of 1636 documents adopted by the President had the classification «Not to be published», in 2001 – 78 out of 1461, in 2002 – 74 out of 1479, in 2003 – 111 out of 1794.

The number of documents, adopted by the Cabinet of Ministers with the classification «Not to be printed» constituted: in 2000 – 85 out of 2387, in 2001 – 39 out of 2372, in 2002 – 100 out of 2672, in 2003 – 46 out of 2791 with a further 12 classified «For official use only».

Summarized data on using illegal classification in 2004 are given in the table (January – December)

State Body

Number of documents

For official use only

Not to be published

Not to be printed

Cabinet of the Ministers of Ukraine

2432

19

-

44

Ministry of Internal Affairs

72

4*

-

-

Security Service of Ukraine

31

27

-

-

Ministry of Defence

44

2

-

-

Ministry of Economy

763

-

-

-

Ministry of Industrial Policy

37

-

-

-

Ministry of Fuel and Energy

350

-

-

-

Ministry of Employment and Social

Policy

144

-

-

-

Ministry of Transport

198

-

-

-

Ministry of Justice

111

-

-

-

Ministry of Education and Science

214

-

-

-

Ministry of Health

558

1*

-

Ministry of Finance

210

-

-

-

Ministry of Agriculture

504

1

-

State Penal Department

14

-

-

-

Treasury of Ukraine

76

-

-

-

State Border Administration

29

2 (1*)

-

-

State Customs Service

1222

-

-

-

State Tax Administration

485

-

-

-

National Commission on Regulation

of Electric Energy

1397

1

113

1

National Bank of Ukraine

580

-

-

1

General Prosecutor’s Office

2

-

2

-

President of Ukraine

1551

1

113

1

State Guard Directorate

12

2

«The first visit to Chernihiv region of the Prime-minister Viktor Yanukovych took place on September 11. The meeting in Chernihiv had all the hallmarks of a high-ranking official’s visit to the provinces. All activists of the region were gathered into the building of the regional drama theatre, A crowd scene outside the theatre was provided by almost a thousand officials of state institutions of Chernihiv, in particular, the regional state administration, the taxation administration, the regional centre on aid and pension budgets, the administration of labour and social policy, officers of the law enforcement bodies in civilian clothes, etc. According to the information given to the Chernihiv Civic Committee for Human Rights by some participants of the event, they were gathered on their day off under threat of dismissal. Before the performance, their names were marked off on a list, for which a representative of the corresponding institution was responsible. As compensation to all those who came to the meeting a day off in lieu was promised. The participants of the meeting were handed out flags, leaflets and some – even T-shirts in support of the presidential contender Viktor Yanukovych.

During the conference in the drama theatre questions were raised regarding salary debts and budget proposals».

«In October a second visit of the Prime-minister Viktor Yanukovych to the Chernihiv region took place. Unlike the previous occasion, this one was «a walk among the people». The people, who, according to different estimates numbered 15-20 thousand, were brought there by the chiefs of institutions and enterprises, with attendance being compulsory. Many people were threatened with dismissal if they did not come. According to witnesses of the event, silent columns approached the square led by their leaders. For instance, the column of education employees was headed by the chief of the city department of education, Leshchenko. Hundreds of participants of law enforcement bodies were brought by buses from all over the region».

An activist of «Our Ukraine» staff in Kharkiv, Vasyl Tretetsky, in the bulletin «Prava Ludyny» [«Human rights»] also gives a picture of meetings supporting Viktor Yanukovych in Kharkiv:

«On July 14 this year, the Kharkiv authorities organized a pompous meeting in support of Viktor Yanukovych, and in order to demonstrate «the people’s love» for him, brought more than 50 thousand people, mostly state sector employees and big enterprise workers from all over the region to Svoboda square. The delegations which arrived at the meeting in an organized way were divided into corresponding sectors, where «volunteers» were called over and marked off. Later the Governor of Kharkiv objected to accusations regarding the use of administrative resources, referring to the fact that the organizers of the mass performance in support of Viktor Yanukovych were local organizations of the National Democratic Party. He forgot, however, to mention that it is he who heads the regional organization of the National Democratic Party, and the head of the city branch is the Mayor of Kharkiv, Volodymyr Shumilkin, and that, thanks to them, Kharkiv region has became a kind of reserve of the administrative resource where correct political views are prerequisites, not only for a successful career but even for success in the arts».

The violations of legislative norms of the Law of Ukraine «On the Presidential elections in Ukraine» regarding campaigning were graphically shown by the placing in the streets of Ukraine of a huge number of billboards in support of the pro-regime candidate that the funds of all other candidates taken together would not have been able to finance.

In one of its statements, the Kharkiv human rights group gives the following information regarding this issue.

«At first we all saw an incredible number of billboards with portraits of Viktor Yanukovych, incompatible with any electoral fund of a candidate, as foreseen by the Law of Ukraine «On the election of the President», The government of Kharkiv simply in mandatory fashion, as the Constitution of Ukraine says, «regardless of the form of property», ordered every state sector organization, each joint-stock company, and many private firms to produce this election campaigning material at their own cost (that is, at ours, since these businessmen will take the money off their customers or clients). In Kharkiv, those who emphatically did not support this candidate, initially attempted to add something to these billboards, but then the city authorities ordered that a police officer be positioned near each big board. Quantity exceeded quality so that people neatly renamed billboards into «big mug» and… stopped paying any attention to them at all».

The negative reaction of the population to such «campaigning manoeuvres» of the government led to rumours that in the campaign of the candidate a mechanism for a fictitious contract had been used, with the cost of producing a big board absurdly low, and consequently the state budget did not get any profit out of the agreement with the company producing billboards. Moreover, state expenditure was attested to by numerous messages to human rights organizations telling of considerable sums of money which were signed for by heads of institutions, heads and members of district commissions to obtain the result ordered by the State regime, since the amounts were so far in excess of the limits allowed for in law. In addition, the unofficial funds of the regime’s candidate were replenished by means of open blackmail of businessmen from tax inspection and financial monitoring structures. For example, according to information from southern and eastern regions, during a financial examination, an infringement was found at a company for a certain sum of money. The company, having been threatened with punitive measures, including criminal proceedings, were invited to, instead, pay a smaller figure towards the election campaign of Viktor Yanukovych.

The administrative resource worked also in the question of forming electoral commissions. Sometimes, instead of the authorized representatives, lists of commission members to the territorial electoral commissions were submitted by officials. Sometimes this led to absurdities. For example, the bulletin «Prava Ludyny» informed that this way of formation of electoral commissions caused anecdotal and depressing situations. For example, when a respected associate professor, working in one of the national universities of Kharkiv was phoned by a secretary of the electoral commission and invited to a meeting of the commission, he politely agreed. However, when the secretary asked whether this respectable figure was a representative of the presidential contender Roman Kozak, the associate professor was thoroughly outraged, yelled at the unsuspecting secretary and refused to work in the commission. In another commission, headed by a representative of the presidential contender Viktor Yushchenko, where the majority of members of commissions were appointed by the director of the school where the electoral district function, another scandal broke out: 33 (!) members of the commission stated that they all supported the presidential contender Viktor Yanukovych and that they would not work under a head who supported the nationalists! When the head of the commission entirely reasonably remarked that among these 33, there were representatives of the rather notorious Roman Kozak, Dmytro Korchynsky, Andriy Chornovol, Bohdan Boyko who, in contrast to Viktor Yushchenko, call themselves real nationalists, the 33 «warriors» for Viktor Yanukovych answered that they would rather disrupt the election at this district than work under the guidance of Viktor Yushchenko’s representative!

As the Kharkiv Human Rights Group have stated, the fact that the administrative resource was used so widely and in such unseemly forms, is of course first of all the fault of the government that, above all, was not able nor willing to work in condlign=top width=85>

* together with other bodies

We would note that the majority of documents with the classification OU previously had a title in the database, from which one could at least gauge the content of the document (from 2002 documents with the classification OU have not had titles, only number and date when they were passed). Documents with the classifications «Not to be printed» and «Not to be published» have only numbers and date when passed, thus making it impossible to understand what is contained in the documents. True, in some rare cases, when the document appears in topic-based sections, it is given with its title. For example, it was ascertained that the Directive of the Cabinet of Ministers №4 11-р from 13 September 2001 had something to do with pensions. However what information about pensions needs to be classified as secret and kept from citizens of Ukraine? It is truly difficult to imagine any information about pension provisions which would not be of interest to the public. Moreover, the law «On State secrets» prohibits classification as secret of information which concerns the rights and freedoms of citizens. Given that the degree of secrecy of information with the classification «Not to be printed» is perhaps lower than that for State secrets, documents which contain information which concerns human rights and freedoms should not have this classification. And information about pensions, undoubtedly, relates to human rights. For the same reason, the Decree of the President №7 09/94 from 30 November 1994 «On the provision of information and analysis for the President of Ukraine» should not have been classified.

The large number of untitled documents passed by the President and the Cabinet of Ministers prompted us to investigate the dynamics of their adoption over a longer period. It transpired that the classifications «Not to be printed» and «Not to be published» had begun as early as in 1994, before the pre-term presidential and parliamentary elections. There are clear spurts in the production of such documents by both the President and the Cabinet of Ministers. Although there is no clear correlation between these spurts, in most cases they coincide with election campaigns and the holding of the all-Ukrainian referendum. It cannot be ignored that the President classifies far more documents as secret than the Cabinet of Ministers or any other body.

In a private conversation, an official working in the President’s Administration said that documents with the classification «Not to be published» concern appointments to posts and awards, and added that this could not interest anyone, so why waste paper on publishing such documents. It is difficult to seriously believe such an ingenuous explanation, particularly given the examples cited earlier of the use of classifications of secrecy for documents which have a direct connection with human rights. One thing is clear: officials now, as previously, themselves decide what the public need to know, and what would not interest them, and deprive society of information at their own discretion.

Here even a superficial glance at the names of documents with the classification OU demonstrates that socially significant information, which cannot be included in the range of restrictions defined in Article 34 of the Constitution is being classified as secret. For example, «The national program for the development of energy policy up to 2010», which, incidentally, was passed in 1996 without any public discussion and which since then has been hiding under the classification «For official use only». This classification had also been given to the plan for joint Ukraine – NATO activities, and it took three months of public pressure to have it removed. The agreement of 29 October 2004 between the companies «Naftogaz Ukrainy» and «Gazprom» on the creation of a gas consortium has also been classified «for official use only». This agreement is not available even to the members of the supervisory board of «Naftogaz Ukrainy». In accordance with Decrees of the President with the classification «Not to be published», objects, the sale of which was prohibited, were sold into private property, in particular, sanatoria with valuable mineral springs. We could cite many more examples.

In our opinion, the illegal practice of classifying information as secret must be subjected to close public scrutiny. All normative legal acts with classifications «Not to be printed» and «Not to be published» should be made open, and documents classified as «for official use only» should be analyzed in order to establish whether their secret status is well-founded.

3. Conclusions and recommendations

Transparency in the activity of the State authorities, despite numerous decrees, directives and promises from those in power, remained an unresolved issue throughout 2004. The authorities of various levels were apparently busy distributing press-releases, carrying out more press conferences, briefings, were providing information about their activity on the Internet, yet all was done in half-measures: the information, as a rule, was that which the authorities considered of interest, and not that which citizens needed. Attempts by journalists to ask inconvenient questions and to touch on burning issues were met with opposition from State officials, obstacles were put in front of these journalists’ activity; the latter found themselves refused accreditation. During the Presidential elections, these negative factors became considerably more acute.

State executive bodies and bodies of local self-government were reluctant to provide information about their activity and often used various pretexts to avoid doing so. Sometimes they simply do not respond to requests for information, or they send usually formalized answers, or they may try to only answer by telephone, or answer only some of the questions. On the other hand, the low degree to which society is informed is in large part a result of its own inertia and lack of real desire to receive information. The illegal use of secrecy classifications also requires intense public scrutiny.

In order to rectify this unacceptable situation, the following steps need to be taken:

1. To stop the practice of illegally making information, including normative legal acts, secret, using the classifications «Not to be printed», «Not to be published» and «For official use only»;

2. To declassify all normative legal acts with classifications «Not to be printed» and «Not to be published», and to scrutinize documents classified as «for official use only» in order to establish whether their secret status is well-founded.

3. To analyze «The List of items of information that constitute State secrets» from the point of view of whether this classification of information is well-founded, using the three-component test of the European Court of Human Rights for checking the presence of «damage» and «influence on public interests», as well as Article 47-1 of the Law «On information»;

4. To adopt a new law on information which would guarantee the access to information in State executive bodies and bodies of local self-government on the basis of the Recommendations of the Committee of Ministers of the Council of Europe № R 19 (1981), REC 2 (2002), 13 (2000) of the Convention of the EEC UNO on the access to information, public participation in decision-making and access to justice in environmental matters (the Aarhus Convention -- adopted on 25 June 1998 and ratified by Ukraine in 1999);

5. Taking into consideration the case law of the European Court of Human Rights and principles of legislation on the freedom of information, to develop an educational course on international standards of access to information and practice of their application in Ukraine, and to carry out training for judges of local and appeal courts of all 27 regions of Ukraine and for state officials who work in public relations departments of state executive bodies and bodies of local self-governitions when it is necessary to fulfil norms dictated by the law. Moreover, the State authorities were convinced that civic society in Ukraine was weak and undeveloped and that parties would not be strong enough to react to such violations. Future events were to prove just how mistaken they were.

Dmytro Groisman in the bulletin «Human rights» issue 26, 2004 informed of the misuse of administrative resources by «Ukrzaliznytsia» (the Ukrainian Railways). During a trip, he noticed that at the Southern railway station in Kyiv behind each of the cashiers there were placards «Because…»[10]. He asked the administrator to give him the complaint book, because campaigning is forbidden by the Law «On the election of the President», however she refused to do it. After Groisman said that he would immediately send a telegram regarding this to the General Prosecutor, the Ministry of Transport and the Central Election Commission, the cashier spoke to somebody over the phone, having closed the cashier’s window off from view. She then opened the window and said: «We apologize. These placards were wrongly placed by one of our cashiers who is a supporter of Viktor Yanukovych. I will remove them».

What is most interesting – she really did take them down, removing every single placard «Because…»

Dmytro Groisman continues: «After that she said: «Please don’t write a complaint, it won’t happen again». I asked about the situation at the ticket office of the Central railway station. She told me that she didn’t know and that she wasn’t responsible for the central office. So I went there. Of course, behind each of the cashiers, there was our Kashchei [11]! This time I acted differently.

I simply went to the administrator and asked for the complaint book. The administrator working at a refund desk at the left of the central entrance to the railway station invited me to come in and asked what the complaint was. I refused to say, answering that they would be able to read everything when I finished. She began phoning, a lot of people came, didn’t give the book, saying «what if you spoil it and write obscenities there». I took out my passport and said «Here’s my passport, if I’m such an idiot as to write obscenities here – call the police and I’ll answer for the consequences».

I was given the book and I started writing the complaint. I wrote about half of it, and the administrator said: «well, read it aloud, we’re all interested», and I started reading. When they understood what I was talking about, something absolutely paradoxical and unexpected happened. They all started saying «That’s right! Well done! We’ve all had it with that *******! How long do we have to put up with his band of crooks, it would be better if someone threw him under a train tomorrow, and so on». It all ended with the women assuring me that if I ever had any problems with train tickets, I should come to them and they sort everything out. After that I went to the post office and sent a telegram to the Central Election Commission».

As a human rights activist from the Luhansk region, Oleksiy Svetikov informed, the newspaper «Luhanchany» published facts they had learned about the misuse of administrative resources in the Luhansk region. According to the newspaper, during working hours in many state sector workplaces, meetings were held where medical staff, teachers, state officials and police officers discovered that they apparently all unanimously supported Yanukovych. On July 21, in the regional department of the Ministry of Internal Affairs, General Kryzhanovsky gathered all his subordinates and informed them who the police supported. A campaigning group was formed from veteran officers, and was provided with a car. Enterprises and institutions received directions how many people should be «supplied» for participation at the meetings. Stands and placards in support of the «single candidate» were produced. It goes without saying, at the enterprises’ and institutions’ own expense … The newspaper also related one shocking case in a village in Kremensky district where the head, having gathered villagers, informed them very succinctly of the needs of the moment: «If even one b**** doesn’t not vote for Yanukovych – I’ll bury you all».

Due to the possibilities provided by the local authorities and bodies of local self-government, Yanykovych’s campaign proved most powerful: it also had the almost unanimous support of the municipal mass media and a lot of advantages in the commercial mass media. A free newspaper «Region-Post» began being published (with a circulation of 600 thousand) with material supporting Yanukovych. In every city and village one was confronted with placards and billboards supporting him. Street advertising in the Luhansk region was exclusively in support of «the single State candidate», though the source of the financing of this was never revealed. In August, leaflets supporting the Prime Minister started being put in people’s post boxes. The State authorities either held or supported meetings within work collectives in support of Viktor Yanukovych, and various work conferences were also used for campaigning purposes.

Numerous mass events were also held in support of Viktor Yanukovych, incidentally, all identical in terms of technical organization. For example, on July 26 on Teatralna square of Luhansk a regional forum of democratic forces of the Luhansk region took place, after which similar forums were churned out by all towns and district centres of the region. It has to be said, that some scope did remain for local initiative. For example, before the opening of a forum of democratic forces in Kremenne a somewhat novel form of participant registration was adopted: the organizers put down the name of the «collective participant» (an enterprise of an institution) and fixed how many people would come from this work collective to the forum.

On July 26 at 16 o’clock by the building of the state enterprise «Luhanskcoal» a meeting of Viktor Yanukovych’s supporters was held, the participants of which were brought by buses of the municipal auto-transport enterprise. After this, similar meetings were held in all towns and district centres of the region. According to the information given during the forum of democratic forces by the head of the Luhansk regional organization of the National Democratic Party, Andriy Cherkasov, meetings of work collectives had taken place in support of Viktor Yanukovych at many enterprises of the regional centres. There had been no meetings in support of other candidates.

However, administrative resources surpassed themselves most notably in gathering signatures in support of Viktor Yanukovych. No less than 500 thousand signatures in the Luhansk region were gathered in just two weeks! The Severodonetsk enterprise «Azot» can serve as an example of the use of administrative resources in this «subscription» campaign, «adapted» to comply with legal requirements; its workers signed their names not at their working places, but near it – at the entrance checkpoint. Before that, the workers had been warned that the lists would first go to the personnel department. As a result the process of collecting signatures was rather lively – there was a queue by the tents. In addition, at «Azot» workers were warned that signing in support of other candidates was not possible. In such fashion, the gathering of signatures for Yanukovych was completed in record time».

Administrative resources also attempted to take control of the training process of district commissions. For example, the Chernihiv Civic committee for human rights agreed to hold two training seminars on electoral legislation at the Territorial Electoral District (TED) № 208 (Chernihiv). The head of the Territorial Electoral Commission (TEC) № 208 Oleksy Mekshun invited representatives of the Desnyansky and Novozavodsky district executive committees of Chernihiv who were in charge of preparing lists of voters. Members of the Chernihiv Civic Comment;

6. For representatives of the mass media, human rights and other civic organizations to monitor the efficiency of active and passive access to information at central and local levels, to use the courts more actively against the inaction of state officials with regard to the providing of information and refusals to give information.

The issue of ensuring the right of access to information can be positively resolved only by the mutual efforts of the new Ukrainian leaders, showing respect for their voters and not fearing journalists, the representatives of the mass media remaining committed to the cause of informing the public, and society as a whole, which must become active in demanding openness and transparency from their leaders.

The question of guaranteeing the right to the access to information may be settled positively only by the joint efforts of new Ukrainian power, which would respect its voters and would not be afraid of journalists, representatives of mass media, who, in their turn, would not lose their persistency in informing of public, and the society as a whole, which should be more active regarding openness and transparency of power.



[1] The Internet website of the Kharkiv Human Rights Protection Group «Human rights in Ukraine»: http://khpg.org

[2] Official WEB-page of the SSU in the Internet: http://sbu.gov.ua/reports/ann17-01-2005.shtml.

[3] The first is the principle of maximum publicity: all information which is held by State executive bodies should be made public, with exceptions possible only in a very limited number of cases. The second principle defines the requirements for limitations: а) exceptions must be clear б) they must be defined very narrowly, в) they must be subject to strict control as to the presence of ‘harm’ and influence on ‘public interests. The refusal of a state body to make information public is justified if, firstly, the information is related to a legitimate aim, foreseen by the law, secondly, its being made public could indeed jeopardize a legitimate aim, and thirdly, the damage which might be caused the said goal must outweigh the public interest in obtaining the information.

[4] On 3 April 2004, Article 47-1 was introduced into the Law «On information». According to this Article, a person cannot be held responsibility for divulgence of confidential or other information with restricted access, it a court would establish that the right of public to obtain this information prevailed over the rights of other persons, including the state, concerning non-disclosure of this information.

 Share this