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22.05.2004 | Yevgeniy Zakharov and Irina Rapp

ANALYSIS OF PRACTICE ACCESS TO GOVERNMENTAL INFORMATION.

   

1. Government-owned information
with restricted access
 

The analysis of the accessibility of government-owned information showed that the organs of the executive power use for making information secret such classifications: „for service use only“, „not for printing“ and „not for publishing“. These classifications are illegal, since they are not defined by laws. No normative acts determine the procedure of processing documents classified as „not for printing“ and „not for publishing“. The instruction on the procedure of processing documents classified as „for service use only“ is written in the style of the old good totalitarian times and actually prohibits the access to such documents.  

We made an attempt to learn how widely are these illegal classifications applied. To this end, we analyzed all the documents issued by several central agencies in 2000 and 2001 to learn the number of documents thus classified. For this we used the computer juridical system „Liga“. The results are shown in Table 1. It is easy to see that most such documents are issued by the President of Ukraine and the Cabinet of Ministers, the President in most cases using the classification „not for publishing“, the Cabinet of Ministers – „not for printing“, and agencies – „for service use only“. Besides, the titles of all the documents classified as „for service use only“ are listed in the database, from which one can at least roughly understand what is the document about. On the other hand, the documents classified as „not for printing“ or „not for publishing“ are represented only by numbers and dates of adoption, so it is impossible to understand what is the content of these documents. Yet, in rather seldom a document may appear in a topical rubric, here it has the title. So, for example, it became clear that resolution of the Cabinet of Ministers No. 411-p of 13 September 2001 is about pensions. But which data on pensions shall be made secret from Ukrainian citizens? It is difficult to imagine what kind of information about pensions is not of vivid interest for the Ukrainian population. Besides, the law „On state secrets“ prohibits making secret any information concerning rights and freedoms of citizens. Since the level of secrecy of the information „not for printing“ seems lower than the level of state secret, them the documents concerning rights and freedoms of citizens may not have such classification. And the information about pensions is undoubtedly related to human rights. The same argument may be applied to the secrecy of document No. 709/94 of 30 November 94, which, as became known, concerns the identification numbers.  

It is extremely astonishing that the Penitentiary Department classified „The rules of the internal order in penitentiary establishments“ (No. 10 of 6 May 2000) as „not for printing“. How could these rules be obeyed if it is impossible to learn them? Possibly, the access to the documents „not for printing“ is easier than „for service use only“, but one only could guess.  

The great number of untitled documents issued by the President and the Cabinet of Ministers made us investigate the dynamics of their adoption over a longer time. It appeared that the wide use of the classifications „not for printing“ and „not for publishing“ began as early as in 1994, still before the pre-term presidential and parliamentary elections. The data on the number of such documents adopted during 1994-2001 are summed up in Table 2, and Figure 1 shows the graph of the distribution in percent of the total number during this period. One observes obvious bursts of issuing such documents by the President and the Cabinet of Ministers. Although any strong correlation between these bursts is not observed, but in most cases they coincide with election campaigns and all-Ukrainian referendum. It is clearly seen that the President makes secret much more documents than the Cabinet of Ministers or any other agency.  

One of the clerks of the President’s administration told in a private talk that the documents classified as „not for publishing“ concern appointments to positions, so it is of interest to a very few people, and it is a waste of paper to publish this information. This simpleton’s explanation is difficult to believe, especially taking account of the above-mentioned examples, when such classification was used for documents having direct connection with human rights. One thing is obvious: bureaucrats still decide themselves what the public must know and what will bore it.

Table 1  



Number of

documents
 

Total
 

„For service use only“
 

„Not for printing“
 

„Not for publishing“
 

State body year
 

2000
 

2001
 

2000
 

2001
 

2000
 

2001
 

2000
 

2001
 

President of Ukraine
 

1636
 

1461
 

 

 

 

 

95
 

78
 

Cabinet of Ministries
 

2387
 

2372
 

 

 

85
 

39
 

 

 

Ministry of Internal Affairs
 

25
 

41
 

4
 

2
 

 

 

 

 

Ukrainian Security Service
 

9
 

4
 

2
 

2
 

 

 

 

 

The State Department on Executive
of Punishments
 

50
 

12
 

3
 

1
 

2
 

1
 

 

 

Ministry of Justice
 

66
 

69
 

 

1
 

 

 

 

 

State Committee on
Defense of the State
Frontiers of Ukraine
 

27
 

18
 

3
 

1
 

 

 

 

 

Ministry of Defense
 

20
 

38
 

 

 

 

 

 

 

Ministry of International Affairs
 

5
 

15
 

 

 

 

 

 

 

General Prosecutor
Office
 

9
 

4
 

 

 

 

 

 

 

Ministry of Extraordinary Situations




8




1








Table 2



Body


President


Cabinet of Ministries


Notice

Year



   

 

 

 

 

 

 

 

Total
 

„Not for publishing“
 

Ratio of closed documents to the total number, in percent
 

Subtotal for year
 

„Not for printing“
 

Ratio of closed documents to the total number,
in percent
 

 

1994
 

882
 

73
 

8,2
 

1572
 

15
 

0,9
 

Elections of President
and Parliament
 

1995
 

1477
 

90
 

6,1
 

1686
 

28
 

1,7
 

 

1996
 

1831
 

75
 

4,1
 

2146
 

54
 

2,5
 

 

1997
 

1702
 

39
 

2,3
 

1984
 

56
 

2,8
 

 

1998
 

1888
 

69
 

3,6
 

2889
 

21
 

0,7
 

Parliamentary
Elections
 

1999
 

1932
 

60
 

3,1
 

3623
 

254
 

7,0
 

Elections of President
 

2000
 

1436
 

95
 

5,8
 

2387
 

85
 

3,6
 

All-Ukrainian
Referendum
 

2001
 

1461
 

78
 

5,3
 

2372
 

39
 

1,6
 

 

 

 

Figure 1  

   

   

2. Analysis of the practice of access to information
 

Since, as we have pointed out before, neither journalists nor researchers mentioned ungrounded refusals in their access to information, we decided to carry out a kind of experiment on ourselves, checking to what extent we can get the access to official information.  

We and our partners, participants of the Human Rights Network, turned in August, 2001 to different local and central authorities with requests about various pieces of information for 1998,1999, 2000 and first half of 2001 needed for analysis of the status of human rights in Ukraine and the preparation of the annual report on this status.  

We requested the data on mortality and its causes, on the number of suicides, the data on the survival minimum and on the consumer’s basket, the histogram of pensions received, the data on wages in various industries and in the budget sphere, on the unemployment structure, the data on medicine and medical aid to population, the data on high and higher education, the data on strikes and hunger strikes, the data on the environment pollution in Ukraine, the data on mortality and desertion in the Armed Forces and the reasons of death, the data on the level and structure of crime, the court statistics, the data on the number of preliminary and common prisons, on the diseases and mortality rate in penitentiary establishments, about the number of the TB- and AIDS-infected, on the expenditures for upkeep of convicts, the data on the number of legal and captured illegal immigrants, on the number of refugees, on the number of representatives of the repressed peoples, on the size of the aid to refugees and migrants.  

To send the correct requests we conducted the preliminary review of the information sources, which contain such information: statistical yearbook, published annually by the State Committee of statistics, periodicals of ministries and agencies, such as „The Bulletin of the Supreme Court of Ukraine“, „The Bulletin of the Constitutional Court of Ukraine“, „The Official Bulletin of Ukraine“ and others. One of the richest sources giving the materials for thought was the computer juridical system „Liga“ containing all normative acts registered by the Ministry of Justice.  

Having generalized the results of the analysis, we sent the requests to the President’s Administration, the Ministry of Justice, Ministry of Labor and Social Policy, Ministry of Health Protection, Ministry of Education, Ministry of Defense, the Ministry of Interior and all its regional directorates (Autonomous Republic of the Crimea, 24 oblasts, Kyiv and Sevastopol), General Prosecutor’s office and all its regional directorates, USS, State Committee of statistics, State Penitentiary Department, State Department in charge of nationalities and migration, Commission on mercy at the President of Ukraine and other agencies.  

According to Articles 32-34 of the Law „On information“ requests for information must be considered by state agencies for 10 days maximum; during this term the agency must inform the author of the request in writing that the request will be answered or that the requested information may not be divulged. The refusal must be well-motivated. The requests must be answered during a month. If the answer may not be prepared in a month, them the state agency must inform the requesting side about the postponement of the answer, explain the reasons and to name the date of the answer.  

The results of the requests to the Ministry of Interior, General Prosecutor’s office and their regional agencies are presented below. What concerns other agencies, not a single state organ, where we turned, did not answer during 10 days. We received a satisfactory answer during a month only from the Ministry of Justice and the State department in charge of nationalities and migration. So, the Ministry of Justice sent generalized statistical data about the financing of oblast, district (town) and military courts from the state budget (see Table 3). The misery sums expressively testify about the real, and not declared, attitude of the executive power to the judicial power. The presented information also contains the data about the number of judges brought to disciplinary responsibility and dismissed judges (in 1997 – 122 and 2, in 1998 – 117 and 4, in 1999 – 118 and 5, in 2000 – 173 and 9, in the first half of 2001 – 56 and 11, respectively), the number of the condemned for slander (in 1998 – 123 persons, in 1999 – 98, in 2000 – 102, in the first half of 2001 – 49; in 1998 3 persons were incarcerated, in 1999 – 5 persons).  

The state penitentiary department answered our request about the financing of the penitentiary system (in 1998 – planned budget: 227.5 million UAH, actual financing: 180.6 million UAH; in 1999 – planned: 216.6 million UAH, actual: 203.3 million UAH; in 2000 – planned and actually: 204.4 million UAH; during 9 months of 2001 – 156.3 and 154.7 million UAH, respectively), about mortality rate in penitentiaries, including TB (1998 – 2108; 1999 – 2969; 2000 – 2222; the first half of 2001 – 865; including TB: 725, 1133, 715 and 300, respectively) and about the number of suicides among the arrested and condemned and the personnel of penitentiaries (in 1998 – 59 and 6, 1999 – 45 and 5, 2000 – 31 and 8, the first half of 2001 – 13 and 4, respectively).

Table 3
   

Years
   

1998
 

1999
 

2000
 

2001
 

Demand of the Ministry of Justice,
millions UAH
 

150,8
 

169,5
 

271,7
 

309,8
 

Approved by the Law on
State Budget (plan), millions UAH
 

74,8
 

85,9
 

130,1
 

162,3
 

Plan/demand, %
 

49
 

51
 

48
 

52
 

Actual financing, millions UAH
 

66,6
 

61,2
 

130,1
 
 

Actual/plan, %
 

89
 

71
 

100
 

91,7
 

Actual/demand, %
 

44
 

36
 

48
 

52 (approximately per month)
 

 

The responses from the Ministry of labor and social policy, Ministry of Interior, USS and Ministry of education did come, but with a long retard. The Ministry of defense, Ministry of health protection and Commission on mercy at the President administration did not answer at all. The received answers were incomplete, we got much advice to turn to other agencies, more frequent – to the State committee of statistics. Really, all state organs pass the information in the proper format to the committee of statistics. Yet, we turned to the agencies that collect and process the information according to their profile, and we requested namely that kind of information that is absent in annual statistical records.  

We received more or less full answers from the Ministry of Justice and the State department in charge of nationalities and migration. Only the department of higher education answered our questions, other department of the Ministry of education did not answer at all. Some actions of state organs may be regarded as oblique answers to our requests. For instance, the USS declassified „The list of information making state secrets“ after our request about the legality of classifying the list as secret. After active exchange of letters and phone calls Yuri Smirnov, the Minister of Interior, publicly announced the data for 2001 about the violations of laws by militia officers (186 militiamen were brought to criminal responsibility and near 50 thousand were punished disciplinarily. As we know, such data were not made public before. The Commission of mercy at the President administration regularly informs the press about the number of the pardoned since autumn 2001.  

Upon the whole it seems that the attitude of state organs to the Ukrainian law „On information“, which obliges a state organ to inform all interested parties about its activities, is somewhat disrespectful. It proves that the state organs still disrespect the society, which entrusted them to execute some functions and has the right of control. This attitude was especially visible in responses to the requests about illegal actions of law-enforcers.  

 

   

3. Access to information about illegal actionsof law-enforcers
 

The problem of torture and cruel treatment is the most difficult problem in human rights protection. According to our monitoring, the cases of applying torture in Ukraine during inquiry and preliminary investigation become more frequent, and actions of militia become crueler. Some facts of death as a result of torture are known. As before, no system exists of independent investigation of complaints against cruel actions of militia. Service investigations are carried out by officers of another directorate of the Ministry of Interior and they are not fast and unbiased. It is next to impossible to make prosecutor’s office start a criminal case. To get convinced in the correctness of these empiric conclusions we decided to try to learn how many complaints against the illegal actions of law-enforcers are handed, how many of them are satisfied, how many people are brought to criminal or administrative responsibility and how many people have been condemned according to articles 166 and 175 of the Criminal Code of Ukraine of 1961 (for misuse of power and illegal methods of investigation). To this end, we sent to the Ministry of Justice, Ministry of Interior, General Prosecutor’s office and to all 27 regional prosecutor’s and militia directorates the requests of the following content:  

Our organization prepares analytical issues of the bulletin „Prava ludyny“ about the state of human rights in Ukraine. According to Article 40 of the Ukrainian Constitution, Articles 28, 29, 32, 33 of the Ukrainian Law „On information“ and Articles 34, 35 of the Ukrainian Law „On printed mass media (press) in Ukraine“ we ask to send us in writing the following information.  

The number of complaints against the illegal actions of law-enforcers of [the name of the region] in 1998-2000 and the first half of 2001, how many of them are satisfied, how many people are brought to disciplinary responsibility.  

In the report to the State Department of the USA on the state of human rights in Ukraine in 2000 (http://www.state.gov/g/drl/rls/hrrpt/2000) it is said, erroneously, in our opinion, that „state organs did not incarcerate penitentiary and militia officers, who inflicted or encouraged violence against convicts“. We ask to give us the information about the number of the penitentiary and militia officers of [the name of the region], who were condemned according to Articles 166 and 175 in 1998-2000 and the first half of 2001 classified by years and articles.
 

Our requests remained unanswered by the prosecutor’s office of Kyiv and prosecutor’s offices of 13 oblasts: Cherkassy, Ivano-Frankivsk, Kharkov, Kherson, Khmelnitskaya, Kirovograd, Kyiv, Lviv, Odessa, Sumy, Ternopil, Vinnitsa, Zaporozhye. Thus, they brutally violated Article 40 of the Ukrainian Constitution and Articles 28, 29 and 32 of the Ukrainian Law „On information“. 13 prosecutor’s offices answered our requests, but 6 of them refused to present information justifying themselves with different motives. The prosecutor’s office of the Zhytomir and Lugansk oblast answered that the requested statistical information is a state property, which is owned by the organs of state statistics, so they have no right to present it to us. The Crimean prosecutor’s office considers that divulging the requested data „may inflict harm to citizens’ rights that are protected by laws“ and that „this information may be used only for service reasons“. The absurdity of the first part of the refusal is obvious, since we requested no personal, but generalized statistical data. The second part of the answer just confirms the arbitrary use of the classification for restricting access. The Sevastopol prosecutor’s office regards the requested information as „confidential information, i.e. information with the restricted access, distribution of which, according to Section 5 of the Ukrainian Law „On state statistics’, is prohibited“. Yet, this very section tells that the prohibition of distributing statistical information connected with data about a concrete person does not concern generalized statistical data. The Dnepropetrovsk oblast prosecutor’s office informed us that they do not collect such statistics, and the Chernovtsy oblast prosecutor’s office answered that we must turn to the General Prosecutor’s office, referring to item 1 of Article 6 of the Ukrainian Law „On prosecutor’s office“ („prosecutor’s offices make a united centralized system headed by the General Prosecutor of Ukraine, where lower prosecutors are subordinated to higher ones“).  

Our first request to the General Prosecutor’s office was answered by M. Garnik, the first deputy of the General Prosecutor. He wrote that such data are not processes in the statistical reports of the Ukrainian prosecutor’s offices, and recommended us to turn to the Ministry of Justice, which keeps the statistics. This answer is strange, since namely prosecutor’s offices must control the observation of laws by the organs, which conduct ODA, inquiry, preliminary investigation, execution of court decisions in criminal cases and application of other coercive measures involving the restriction of citizens’ freedom. That is why, in our opinion, it is the prosecutor’s office that must collect and analyze the data about such violations of laws. This was confirmed by the answers from prosecutor’s offices of seven oblasts.  

In its turn, the Ministry of Justice answered our request that the data about the number of the condemned officers of militia, prosecutor’s offices and penitentiary department are not singled out from the general statistics.  

We turned to the General Prosecutor’s office for the again trying to protest against the refusal, ungrounded, in our opinion, to present the information and asking to make the prosecutor’s offices, which did not answer us at all, obey the Law „On information“. The answer we got was also signed by M. Garnik. He unexpectedly confirmed, contradicting his previous letter, that the requested statistical data are formed in the prosecutor’s offices, in the Ministry of Interior and in the Ministry of Justice. Later these data are passed to the State Committee of statistics, where he advised us to turn. The most characteristic feature of this response, we believe, is the complete absence of any reaction to obvious violations of laws by regional prosecutor’s office subordinated to the General Prosecutor’s office. So, we turned to the General Prosecutor’s office for the third time, summing up the result of our requests and informing our addressee that the data we need are not placed in annual statistical reports. We also referred to the Constitutional norm about the duty of the General Prosecutor’s office to control the observation of laws by the organs of inquiry and preliminary investigation. We again asked to answer our informational requests, indicating that else we will turn to court in each case of refusing the response. We received the third, quote irritated, letter from Mr. Garnik, who repeated that we must turn to the State Committee of statistics. He asserted that the statistical reports of prosecutor’s offices do not contain such data and that there are no grounds to apply sanctions to prosecutors, who did not give us such data.  

All this correspondence, we believe, testifies on unconcealed, if not demonstrative, ignoring the Law „On information“, obvious unwillingness to inform the public about violating laws in law-enforcing organs and, at the same time, demonstration of their complete impunity. We reckon that we have all grounds to hand claims against the General and regional prosecutor’s offices. We intend to turn to court soon, so we sent brief letters to all the 14 prosecutor’s offices, which had not answered, asking them to respond or to inform in writing about the reasons of the refusal, which we are going to use in court.  

The answers from regional militia directorates follow the same line. We did not get the answers from 17 directorates out of 27. The remaining directorates did respond, but their answers were unsatisfactory. The Crimean militia directorates advised us to turn to the Crimean Supreme Court, Dnepropetrovsk and Kirovograd directorates refused to provide us with any data, referring to Articles 30, 31 and 37 of the Law „On information“. Here we also witnessed an arbitrary classification of information as confidential, although we requested not personal, but generalized statistical data.  

We sent a letter to the Minister of Interior, where we wrote about the absence of answers and the refusals to present the requested information. We asked to make the regional directorates answer us and to give us the requested information concerning the entire country. We received the answer that the requested data are stored and controlled by prosecutor’s offices. This answer is somewhat strange, taking account of internal normative acts of the Ministry of Interior. For instance, according to item 2.3 of Order of the Ministry of Interior of Ukraine of 10 June 1998 No. 414 „On the approval of the Instruction on the procedure of considering suggestions, applications, complaints and organizing personal reception in law-enforcing organs, internal troops, higher schools, establishments, organization and enterprises of the militia system of Ukraine“, deputy ministers, heads of main directorates, autonomous directorates and ministry departments, heads of Main militia directorates in the Crimea, Kyiv and the Kyiv oblast, militia directorates in oblasts and the city of Sevastopol must quarterly analyze the state of work with written and oral applications of citizens and suggest concrete measures to improve this work. Item 6.8 of the Instruction reads that, as a rule, the applications are controlled about drawbacks in the work of law-enforcing organs, violation of laws by law-enforcers and their incorrect behavior, which may not be regarded as the violation of laws. According to item 6.14 the assessment of the work of law-enforcing organs is made with the account of the quality of their work in considering citizens’ applications and reception of the citizens. Therefore, the answer to our informational request is under direct competence of the law-enforcing organs.  

The necessity to turn to the same agency for several times and the delay with answers to our requests caused that we did not finished in time the first part of the experiment (determination of the proportion of answers and the attempts to get meaningful answers in cases, where at first the answers were unsatisfactory). So we had to postpone by two months the seminar that was planned in the end of 2001. The seminar will be held on 28 February – 1 March.  

Thus, we received meaningful answers from prosecutor’s offices of seven oblast and from seven regional militia directorates. It should be noted that oblast militia directorates presented more complete information compared to the prosecutor’s offices.  

The data obtained about the number of complaints against illegal actions of law-enforcers are summarized in Table 4, the data about the condemned law-enforcing officers are presented in Table 5. The analysis of the data shows that the number of the complaints during one year varies between 550 and 3500 in different oblasts, and in the Poltava and Rivne oblasts it steadily grows. The greatest number of the complaints (more than 2500 per year) is observed in the Donetsk oblast. Militia registers 1.5-2 times less complaint than prosecutor’s office, but the proportion of the complaint satisfied by militia is much more (20-30%) than that of prosecutor’s office (1-2%). This dependence is valid for all oblasts: the proportion of complaints satisfied by militia is everywhere greater than that of prosecutor’s office, and it is never less than 14%. It may be explained by the fact that militia may impose a disciplinary punishment, while prosecutor’s office must open a criminal case. On the whole, the number of disciplinary punishments is several orders of magnitude more than the number of opened criminal cases.  

It astonishing that the number of satisfied complaints is stable in different oblasts: 20-30% in the Vinnitsa, Rivne and Kharkov oblasts, 15-17% in the Volyn and Trans-Carpathian oblasts. The smallest number (0.7%) of complaints is satisfied by the prosecutor’s office of the Donetsk oblast.  

What concerns bringing law-enforcers to criminal responsibility for using torture, then not a single person was condemned according to Article 175 of the Criminal Code of Ukraine of 1961, and the number of the condemned for misuse of power is very small. Here the Donetsk oblast is the leader again. By the way, only prosecutor’s offices of the Volyn and Chernigov oblasts gave the data about the number of the condemned. 
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