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22.05.2004

Special Services and Constitutional Democracy (OCTOBER 1997 REPORT)

   

 In special issue No.26 we have made an attempt to consider theproblem of free access to the official information in Ukraine.Main clauses of the Ukrainian Laws «On information», «On Statesecrets» and «List of information items related to State secrets» are considered, and attempts of some organizations to obtain official information from state agencies are described.

 The authors of the issue are Evhen Zakharov and Irina Rapp.

FREEDOM OF ACCESS TO OFFICIAL INFORMATION IN UKRAINE

 PREFACE

 Development of Ukraine into a civilized European country isoccurring under the conditions typical of the post-totalitarianspace. However, it is complicated by the fact that no exchange ofpolitical elites has happened in Ukraine, and for the time being,the Soviet administration system is practically intact with allinherent internal contradictions.

 As Vladimir Bukovsky said, communism in the USSR was not defeated,it collapsed under its own weight. That is why the process ofdecommunization was not carried in Ukraine, in contrast to Poland,Chekia, Hungary and other countries. The former party elite waspractically retained at the top of all branches of power. This isnot surprising since the Ukrainian society is very conservative andthe Ukrainian national mentality, on the one hand, is notinterested in politics and, on the other hand, it suffers fromconformism. The first freely elected Ukrainian President was LeonidKravchuk, the former head of the ideological department of theCentral Committee of the Communist Party of Ukraine. Kravchukpublicly declared that he did not know anything about theartificial famine of 1933: it was a brazen lie, of course.Nonetheless, more than 60% of Ukrainian electors preferred him tothe former political prisoner Viacheslav Chornovil. Evgeny Marchuk,the former head of the fifth department of KGB, became the head ofthe Ukrainian Security Service (USS), then he became thePrime-Minister of Ukraine, and now he plays one of the firstfiddles in politics and is one of the most probable candidates tothe position of the Ukrainian President. One of his formersubordinates in the fifth department Vladimir Radchenko is thecurrent head of the USS. Grigory Zubets, the judge who made hiscarrier by persecuting dissidents, who condemned in 1984 ValeryMarchenko, a journalist and human rights protector (this was a deadsentence since Marchenko died in prison), now heads Kiev CityCourt. Such examples can be multiplied.

 Hence it is not surprising that Ukrainians have no custom to turnto court for defending their rights against state officials. It isnot surprising that the laws on lustration or on the access to theKGB archives were not adopted, they practically were not discussed.The law on the ombudsman was adopted only in the first reading, andone can easily predict that the prepared drafts do not provide anyreal basis for efficient activities of the ombudsman concerninghuman rights. In particular, the drafts do not even mention anyombudsman’s rights concerning the Security Service, the freedom ofinformation and other important topics.

 As a consequence, many questions which had to be considered in thereport are, unfortunately, quite academic in our country.

 I. Constitutional Provisions

 Ukraine declared her intention to create a democratic law-abidingstate. One of the main conditions of creating and existing such astate is the public control over the activity of state agenciesthat can be realized only if citizens have a free access to theinformation.

 Article 34 of the Ukrainian Constitution adopted on June 28, 1996,guarantees «the right for freedom of thought and speech, thefreedom of expression of opinions and convictions». Each citizenhas the right «to freely collect, store, use and distributeinformation orally, in writing or in any other way on one’s ownchoice».

 Realizing these rights may be limited by a law intended at thedefence of national security, territorial integrity or public orderwith the purpose of preventing clashes or crimes, intended at theprotection of the population health, reputation or rights of otherpeople, at prevention of disclosing confidential information or forsupporting the authority and integrity of the court».

 One can see that the set of restrictions is rather wide, howevereach of them must be determined by law.

 It is noteworthy that such a formulation as «supporting theauthority and integrity of the court» gives an opportunity to bancompletely any criticism of the system of justice, since anyinformation on the inequality of sides at court or on bribe taking,even on the insufficient professionalism of judges, etc. can beestimated as inflicting damage on the authority of the justice.

 The Constitutional Court of Ukraine has not functioned less than ayear and have not considered yet any cases concerning the freedomof information.

 II. Freedom of Information Law

 The basic legislation acts in the sphere of the freedom ofinformation is the law «On information» adopted in 1992, the law«On Print Media» adopted in 1992, the law «On TV and broadcasting» adopted in 1994, the law «On informative agencies» adopted in 1995,the law «On National Archives Foundation and Archives Bodies» adopted in 1993, the law «On state secrets» adopted in 1994 and «List of information items that belong to state secrets» adopted in 1995 by the State Committee of Ukraine on State Secrets.

 The adoption of the law «On information» is a doubtless achievementof the young state. This law before the adoption of the newConstitution guaranteed the access to information by defining thesystem of relations and obligations in this sphere, usual for ademocratic state.

 Article 10 of the law guarantees the right for the access toinformation and forces state agencies of all levels to inform thepublic on their activities and decisions taken, while Article 21describes the ways of making the official information public,including disclosing it to interested persons orally, in writing orin other way. The resolution of the President of Ukraine of 28March 1996 «On measures to enhance the knowledge of the Ukrainianpopulation concerning the main directions of the state policy» isalso noteworthy. According to this resolution, all the structuresof the executive power (Cabinet of Ministers, Presidentialadministration, ministries and other central, region, city anddistrict administrative bodies) must organize the system ofpermanent informing the population about actual questions ofinternal and external state policy. To this end, monthly «days ofinformation» are suggested, in which top leaders and executivesmust participate. Most ministries, agencies and localadministrations began to hold regular briefings at the createdpress services. The President’s resolution did not provide anyexceptions for law enforcing and security agencies, but, however,monthly briefings, as far as we know, are held only at the Ministryof Internal Affairs and the General Procurator’s office. It shouldbe noted that the Ukrainian legislation does not contain anyspecial indications concerning the obligation of the USS to informthe public on its activities.

 It is necessary to note in this connection the importance of thePresident’s resolution of 23 November 1995 «On coordination ofpress services and informative-analytic bodies of the executivepower», for this resolution practically creates the vertical ofpress services of all levels of the executive power. The duty ofthe coordination of all press services is charged on thePresidential press service which has to provide the conduction ofmonthly briefings for heads of the press services of the Cabinet ofMinisters, ministries and other central bodies of the executivepower. All the press services are obliged to coordinate, with thePresidential press service, all the materials which are passed tomass media and «contain evaluation of the external and internalstate policy which can have substantial public resonance». Besides, these services must inform the Presidential press service about all the activities held by executive power bodies or executives with mass media.

 We believe that these resolutions, which seem to make the officialinformation more accessible, lead in fact to a rigid state controlon such information.

 Article 29 of the law prohibits to restrict the access to openinformation, though it grants advantages in obtaining informationto persons who need this information to fulfill their professionalduties, which, from the viewpoint of Article 45 stating equalrights of all participants of information relations, seems to besomewhat doubtful.

 The list of documents and information items, which should not bepassed to public, is given in Article 37. In particular this is:

 - information which is considered secret according to the operatinglaw;

 - confidential information;

 - information on the operative and investigating activities of theProcurator’s offices, MIA, USS and court which, when made public,can inflict some damage on the operative and investigationactivities, when it can violate the right for the just andobjective consideration of cases by the court, when it can threatenthe life or health of some person;

 - information about private life of citizens;

 - intra-agency service information connected with taking decisionsthat have not been taken yet;

 - information of financial bodies handed to controlling agencies;

 - information which should not be made public in accordance withother laws and normative acts.

 The restrictions on the freedom of information will be consideredwith more details in Sections 3 and 4.

 Article 32 of the law «On information» describes the procedure ofsatisfying requests for official information; this article forcesstate agencies «to give away information about their activitiesorally, in writing, over a telephone or using public speeches ofstate officials». Such a formulation enables bureaucrats to refuse giving written answers to concrete questions, since they can refer to the public speeches of officials of their agency, whereas the same article defines a request as a written demand for granting information orally or in writing, i.e. the form of the response is determined by the author of the request. For the realization of the right for free access to information the questions who is responsible for what are most important. These questions are treated in Articles 35, 48, which describe the procedure of handing complaints about unjust actions of state agencies in information relations. The complaints on these actions are handed to the state bodies of the higher level, and if the complaint has not been satisfied, than it can be directed to the court.

 Besides, Article 47 of the law treating the responsibility for theviolation of legal norms on information stipulates a disciplinary,civic, administrative or criminal responsibility according toUkrainian laws, among them figures an ungrounded refusal ingranting information or unjustified inclusion of this informationto the classified categories.

 However, we have never heard of any case of punishment, to saynothing of criminal punishment, in this sphere, though the cases ofunjustified refusals in granting information for requests areplentiful, as well as arbitrary treated restrictions on grantinginformation or mere silence in answer to a request, especially on alocal level. The difficulty is that the civil and criminallegislation are not conformed with the legislation in theinformation sphere.

 The operating Civil Code never mentions the topic considered. Inthe draft of the new Civil Code a big new part on the rights notconcerning the state of citizens is introduced (Article 294): anatural person, according to the law, have the right to search,obtain and distribute the information; on the contrary, thecollection, storing, usage and distribution of information on theprivate life of a natural person is not admitted against theperson’s will, as well as of information making the state secret orthe confidential information, concerning a legal person. The draftcontains an important proposition that the information which isprocessed by a state officer while fulfilling his service duties,as well as the information from the official sources (reports,shorthand records, mass media communications) is assumed to betruthful, and the person who distributes this information must notcheck its veracity and is not responsible in the case where it isshown false.

 Neither in the operating Criminal Code nor in its new draft thereare special articles stating the responsibility of illegalactions of state officers in the freedom of information. Suchactions fall only under the Article 167 «Negligence» (and similararticles of the draft), such as «not fulfilling or negligentfulfilling by state officers of their service duties as aconsequence of the negligent or lax fulfillment of them whichresulted in a substantial damage of state or public interests orrights and interests of separate natural and legal persons, guardedby the law». The Code mentions the punishment by encarceration by the term up to three years, or correcting works for the time up to two years, or the fine from five to fifteen minimal untaxed incomes with devoiding of the right to occupy certain positions.

 About rights of individuals to obtain access to files concerningthemselves. Article 23 of the Law «On information» permits in somecases, stipulated by law, to gather information on citizens withouttheir consent. According to Article 31 citizens have the right toknow, during the collection of information, which information isbeing collected and with what purpose; they also have access tothis information except in the cases stipulated by law. One of suchcases is, in particular, the one when the information related tothe crime investigation is collected about this very person.

 According to Article 9 of the Law «On crime investigationactivities» in each case when there are sufficient reasons forstarting the investigation, a special file is started (except whenpersons are checked for their trustworthiness to work with state,military and service secrets). If after six months no data arefound to witness that the person under investigation is guilty ofthe crime which had been investigated, then the special file isdestroyed. All the information obtained as the result of theinvestigation concerning the private life, honor and dignity shouldnot be kept and must be destroyed unless it concerns illegalactions.

 III. Classification of Information. State secrets

 Certainly, the most important clauses of the law treat therestrictions on the access to information.

 Article 30 of the Law «On information» divides classifiedinformation into confidential and secret.

 Since the confidential information consists of the data which areowned, used, or managed by definite physical or juridical persons,coming into possession of the data by spending their own means,hence the mode of granting and distributing this information isdetermined by the owners. The exception is made to the informationwhose legal regime is set by the Parliament (concerning statistics,environment protection, bank operations, taxes, etc.), as well asthe information, which, being kept secret, threatens life andhealth of people.

 The secret information is defined as «state or other secrets,determined by law, divulgence of which will damage either a person,or society, or state».

 The definition of a state secret and the procedure of access to theinformation which makes a state secret is defined by the law «Onstate secrets» and «List of information items that belong to statesecrets». As to «other secrets, determined by law», here everythingis rather fuzzy. The procedure of relating some information tosecrets, according to Article 30 of the law «On information» isdetermined by the corresponding agencies which must abide to thelaw «On information». Article 21 of this law stipulates that thesources and the procedure of obtaining, using, distributing andstoring official information of state agencies of all levels isdefined by the legal acts of these agencies, and one naturallyexpects that the needed restrictions would be explicitly listed inthe corresponding laws, such as the law «On militia» (1990) or «Onsecurity service» (1992). Article 3 of the law «On militia» forbidsto divulge the data concerning service secrets, and Article 7 ofthe law «On security service» forbids to divulge military, serviceand commercial secrets, though the law does not contain anydefinition of these terms. Thus, relating some information tosecrets seem to be defined and regulated by intra-agency acts andinstructions; the latter may be created only according to Article37 of the law «On information» which contains general statement oninformation that is not subjected to be obligatorily given onrequests. In particular, there is a statement that «informationshall not be divulged if prohibited by other legal or normativeacts». It is known that intra-agency acts are not published in theofficial press, and in this way state agencies become similar toowners of information, who divulge information or keep it secret asthey found best.It should be noted that, according to Article 21 of the law «Oninformation», unpublished normative acts about human rights andliberties are juridically invalid.

 The only law that more completely regulates the circulation ofinformation is the law «On state secrets» adopted in January 1994and «List of information items that belong to state secrets» registered by the Ministry of Justice in August 1995.

 The law «On state secrets» defines in Article 1 a state secret asan item of secret information relating to defence, economy, foreignaffairs, state security and defence of order, the divulgence ofwhich may cause damage to vital interests of Ukraine, hence theymust be guarded by state. The degree of secrecy of information isdetermined by a potential damage as the result of its divulgence,that is why there must be various restrictions according to thedegree of secrecy.

 The criteria of determining the degree of secrecy must be workedout by the State Committee of Ukraine on State Secrets. The sameCommittee is a special central organ empowered to keep statesecrets (Article 3).

 Article 7 of the law rules that relating information to statesecrets shall be done by a well-motivated decision of the StateExpert on secrets. The State Experts, according to Article 8, arethe President of Ukraine, the Speaker of the Parliament, thePrime-Minister and other top state officials, from thecorresponding spheres of state structures, appointed by thePresident of Ukraine. Since the spheres of state activity needingthe closure of information and defined in Article 6 of the law arerather broad, it is incomprehensible, how many state experts mustbe in Ukraine, what are the reasons of their motivation whenrelating an item of information to a state secret, since nodefinitions of vital interests of Ukraine (Article 9) are presentin the law. Besides, the degree of secrecy of information,according to Article 9, is defined by a State Expert, and everyconcrete carrier of secret information must establish the level(such as «especially important», «secret», «top secret») which is defined by a special state official and approved by the head of the enterprise, establishment or organization, whose activity is connected with state secrets, but it is not clear how this process is connected with the level of secrecy established by the experts.

 It should be noted that Article 6 of the law prohibits to relate tosecrets any kind of information, if this prohibition violates theconstitutional rights and liberties of man and citizen, if it candamage the health or security of the population. Nobody has theright to make secret any information on natural calamities,catastrophes and so on, which have already occurred or may occur,on the ecological state of the environment, on the living standardof the people, including food, clothing, living accommodation,medical and social aid, as well as social and demographic indices,the level of law enforcing, as well as enlightenment and culture ofthe population, on illegal actions of state agencies of any level.However, the law covers only state secrets and does not touch otherrestrictions on the access to information.

 In the list of information items, contained in Article 6, that canbe related to state secrets, there are such characteristics in thesphere of defence as the size of the armed forces of Ukraine, thenumber of frontier guards and national guards of Ukraine; in thesphere of economy secret is financing of defence industry; in thesphere of state security and law-enforcing activity secret isfinancing of the intelligence, counter intelligence and operativesearch activity (i.e., in fact, financing of the USS).

 Article 38 stipulates responsibility for violating laws on statesecrets, including the violation of making information secret orclassified contrary to Article 6, if the information actually isnot a state secret. However, since all this activity is secret,very wide spread and since during many decades the state activitywas actually secret, it is difficult to expect fast progress inthis sphere. That is why to have a free access to the list of datamaking state secrets is very important. The list is vast enough,detailed and covers the kinds of state activity listed in Article 6of the law «On state secrets».

 If the first part of the list, concerning defence, does not bringabout any protest (in particular, in contrast to the law, it doesnot contain prohibition on disclosing the information on the sizeof the armed forces), then the second part, concerning economy, issomewhat queer. Thus, Clause 2.6 relates to secrets the quantityof medicine and food supplied to the armed forces in peace time. Towhich vital interests of Ukraine does it threaten? Clause 2.36relates to secret the data on expenditures on the defence orders asa whole in Ukraine. It is not clear which defence mysteries arecovered here, but it is clear that this article makes the budgetless transparent and controllable, and this concerns the interestsof the mass tax-payer. Clause 2.40 in its general form repeatsClauses 1.32 and 1.33 of the list that relate to secretstechnologies for making military products.

 Clause 2.25 declares secret data on special automobile roads(description of roads leading to military and other secret objects,as well as to big railway stations, bridges, sea and river ports).It is difficult to fancy how can be kept in secret information onthe roads leading to big railway stations? Obeying this law to theletter, no law-abiding citizen may show a stranger the way to therailway station.

 Articles on the security and law-enforcing, any informationconnected with criminal investigation is secret (Clauses 4.1-4.9),and the Security Service becomes completely closed for the society,since even the information of the number of agents (Clause 4.14)may not be published. Clause 4.17 relates to secrets the data onthe status, results and prospects of the USS» cooperation withspecial services of foreign countries. It is amazing why the veryfact of the cooperation must be kept in secret, as well as on thedirection, concrete results and even prospects, the more so thatsuch data do appear in various mass media, and, at the firstglance, no damage is done. This clause is obviously archaic andneeds to be perfected. Clause 4.8 relates to secrets the number ofcustom officers; again it is puzzling in which way can these datainflict damage to Ukraine. Clause 49 prevents the public knowanything on «the actual status» of protecting state secrets. «Theactual state» is not a very transparent term, but it seems thatClauses 4.14, 4.18 and 4.49 tend to protect rather the interests ofsome agencies than those of the state.

 Clause 4.48, connected with the data on executed death penalties isworth of special attention. First of all, it is not clear why thisinformation is given the top level of secrecy, although the verdictis declared openly. If it is explained by humane considerations,then why the relatives are not allowed to bury the corpse and eventhe burial place is kept in secret? If the capital punishment isexecuted to intimidate other most hardened criminals, as theauthorities declare, then, it seems, the executions must be madepublic. All this secrecy is perhaps due to the fact that the stateauthorities subconsciously understand that the death penalty isamoral. By the way, Clause 4.48 is ambiguous, but it permits theauthorities to interpret it as forbidding to publish the number ofexecutions.

 Nowadays there is a hope that under the pressure of the Council ofEurope the death penalty in Ukraine will be abolished or at leastthat executions will be suspended, so this clause will become void.

 IV. Access to the Official Information in Ukraine. Examples

 While the Ukrainian law «On information» may be considered to besatisfactory, the actual reality in the sphere of the freedom ofinformation is very far from the norms fixed in the law.

 Characterizing the actual situation with the freedom of access fornatural and legal persons to information, one has to state that theauthorities very unwillingly part with information, dodge requestsor just keep silence. Thus, having received the request from theUkrainian-American Bureau for human rights protection about thenumber of legal and disclosed illegal immigrants, on the number ofrefugees, on the number of representatives of the repressedpeoples, on the size of the aid to refugees and migrants, theMinistry of nationalities, migration and cults answered that allthese data are classified in the ministry, and the officialstatistics must be sought only in the Ministry of statistics. Thisministry gives out, in the reference book, information only on themigration flows. The request to the Ministry of justice, why thisinformation is classified remained without an answer.

 Sometimes state agencies answer requests through telephone, andonly partly. So, for example, we sent a request to the Departmentof mercy, under the President of Ukraine. We asked about the namesof the Commission members, about the number of the applications formercy received by the Commission in 1992-1996, about the number ofthe cases considered, accompanied by articles of the CC of Ukraine,for which the guilty were condemned; we also asked where thenormative acts regulating the work of the Department and Commissionwere published. In response we got a telephone call from the Headof a Sector of the Department of mercy. She told us where therequested documents were published and that the names of theCommission members are secret to ensure their security and that allother questions would become clear after we studied the documentson the Commission’s activity. Kharkiv Group for human rightsprotection (KG) did not agree with this advice and asked to answerall the questions; the answer was not given. When KG requested theUSS about the legal acts that regulate the USS activity in thesphere not covered by the law on this agency, in particular ondetention and keeping people under arrest in investigation cells ofthe USS, on violating laws by USS agents, the deputy chairman ofthe USS glibly explained that everything is done in strictaccordance with laws and did not answer concretely a singlequestion, saying that no violations of law have never beencommitted. Nonetheless, it is widely known that at least onecriminal case about the death of the suspect interrogated indetention block of the USS in Lviv region was started. It is alsoknown that this detention block was closed because, beside thedeath as a result of torture, another suspect escaped from thisdetention block. KG repeated the request, but has not received anyanswer yet.

 There was no answer to a similar request to the ParliamentaryCommission for defence and security during four months. Then one ofthe authors of this report went to the reception of the Commissionchairman V.Mukhin. Having learned that the project of KG isfinanced by the TACIS, Mr Mukhin exclaimed: «Oh, you gatherinformation for Western intelligence services!» The author retortedpointedly that when the TACIS renders aid to Ukraine countinghundreds million dollars, it is accepted, and when there arequestions about the democratization of the Ukrainian society, thenthe authorities immediately recall Western intelligence services.After this remark Mukhin promised to answer all the questionscontained in our request. He did it. The answer is so typical thatit is worth of quoting verbatim, both the request and the answer.Here is the request.

 To the Parliamentary Commission on defence and state security

 30 December 1996

 Our nongovernmental nonprofit organization, Kharkiv Group for humanrights protection participates in the international project«Special services and constitutional democracy». Nongovernmental nonprofit organizations of 15 post-totalitarian countries of Eastern and Central Europe, as well as of the former USSR take part in this project, which is planned for three years (1997-1999). Our Group will be the national correspondent of the project from Ukraine, on which proper agreements have been signed.

 The project plans analyzing the internal legislation of eachcountry concerning special services, freedom of information, statesecrets and legal protection of civil rights, which will becompared with the principles for the activities of special servicesin a democratic open society; plans studying the mechanisms ofstate and public control for the activities of special services inthe countries with the developed democracy and in post-totalitariancountries; plans preparing propositions as to the implementation ofinternational norms and principles of activities of specialservices to the internal legislation; plans informing state andpublic structures on these norms and principles, as well as holdingseminars for special service agents and officers of other stateagencies, MPs, lawyers, mass media workers. The project is open andis intended at the joint activity of national correspondents,governmental and nongovernmental organizations and national specialservices.

 The project was opened a year ago at a conference in Warsaw forMPs, state services agents and members of nongovernmentalorganizations of more than 15 countries. From Ukraine a well-knownhuman rights protector Zinoviy Antoniuk, co-chairman of the PublicCouncil of the Ukrainian-American Bureau for human rightsprotection, USS colonel Valeriy Kartavtsev, deputy rector onresearch of the USS institute, and a member of the UkrainianParliament Volodymir Golovko, from the Commission on defence andstate security.

 So we expect fruitful and useful cooperation. In our opinion, theproject is rather actual for our country, which is a participant of16 out of 25 UNO conventions on human rights and a plenipotentiarymember of the Council of Europe.

 We ask you to answer the following questions.

 1. Which special services, except the USS, exist in Ukraine?

 2. On the basis of which legal and normative acts are they createdand which powers do they have?

 3. Is there a subcommission (group) within the Commission ondefence and state security that shall control the activities ofspecial services in Ukraine and, if it exists, then which powersdoes it have?

 4. Does this Commission (subcommission or group) receive the annualreport from special services about their activities (cf. Article 31of the law «On the USS»)? Are such reports (or their open part, or main data which are not secret) published in mass media?

 5. Are there any data on any violation of laws or the Constitution,especially concerning the human rights, by special services during1995-1996? Which measures were taken for preventing suchviolations?

 6. Are there any court rulings concerning activities of the specialservices and in which cases (during 1995-1996)?

 7. Does the Parliament plan any oversight of the activity of theState Committee on state secrets, to which extent and according towhich documents? Who heads this Committee?

 8. Which is the legal base of creating the State Committee on statesecrets in the press and other mass media (cf. Article 30 of thelaw «On state secrets»)? Which are the regulations of this Committee?

 9. Which top officials, except the President, Speaker of theParliament and Prime-Minister, are State Experts on state secrets,what are their powers and regulations (cf. Article 8 of the law «Onstate secrets»)?

 10. What is concretely meant in the formula «the use ofcommunication facilities with the aim contrary to state interests» in Article 148-3 of the Ukrainian Code on administrative felonies in the Ukrainian law «On changes and additions introduced to some legal acts of Ukraine concerning the responsibility for felonies in communication facilities» of October 1, 1996, No.387/96-BP (’Vidomosti BPY», No.46, 12 Nov. 1996, page 247)?

 Which «state interests» are meant and who has the power to solvethe question of their violation?

 Respectfully yours Evhen Zakharov, co-chairman of Kharkiv Group forhuman rights protection

 The answer ran as follows.

 To Evhen Zakharov Cochairman of Kharkiv Group for Human RightsProtection

 No.0620/228, 24 April 1997

 In answer to your letter concerning the state and public control ofthe activities of Ukrainian special services, we inform you thatalong with the USS there exists the Main Directorate of militaryintelligence, which is created and operates on the basis of thePresident’s Edict and the Statute approved by the President.

 In the Parliamentary Commission on defence and state security thereexists a Subcommission on state security, which, by way of controlof the USS and by participating in meetings of its Collegium, bylistening to the USS reports at the meetings of our Commissionmonitors the USS activity as a whole and its concrete directions.

 Materials concerning the activities of the USS are periodicallygiven to the public through mass media.

 Any data on violations of human rights and liberties, as defined inthe Constitution and Ukrainian laws, during 1995-1996 are unknownto the Commission.

 As to the parliamentary control of the Committee on state secrets(headed by Mysnik P.O.), according to the Law «On state secrets»,Art.3, it is the Ukrainian Parliament that shapes the state policyin state secrets as a part and parcel of the national policy ininformation.

 The functions of state experts in state secrets are granted to theheads of the central executive power, heads of the ministries andagencies of Ukraine and some their deputies. Their powers andresponsibilities are regulated by Arts. 8 and 9 of the Law «Onstate secrets» and the Act on the State Expert in state secretsapproved by the President of Ukraine.

 V.Mukhin Head of the Commission

 Sometimes one receives red tape and advice to turn to anotherorganization. For example, when we sent a request to the Ministerof Justice on the international acts operating in Ukraine, on thedocuments defining such terms as «service secret» or for «serviceuse only», the official in charge of reception of citizens proposedus to turn to the Main Directorate of the legal information andpropaganda of legal knowledge of the same Ministry of Justice,located in the same building.

 When we sent the request to the Ministry of Internal Affairs aboutthe number of detention blocks and prisons, on the disease andmortality rate in penitentiary establishments, on the expendituresfor upkeep of convicts, etc., the Deputy Minister answered onlythat such statistics is given at the briefings at the Center ofpublic relations of the Ministry, although it was quite clear thatthe reports on briefings are published incompletely, that only asmall proportion of our questions is answered at the briefings andthat we, living in the other city, cannot be present at allbriefings.

 Other ministries and agencies completely ignore requests and do notanswer at all. To this category belong the Ministries of healthprotection, education and defence.

 Lower, at the local level, the matters are even worse. Localauthorities treat the restrictions on the information access quitearbitrarily and, to be on the safe side, often refuse to answer.For example, in 1995 Donetsk and Lugansk region courts refused togive any information on the number of death verdicts referring toClause 4.48 of the list of state secrets, though a specialist fromthe State Committee on state secrets confirmed that thisrestriction is not contained in the list.

 The state of matters, at least in Donetsk region has not changedthis year. So, when the editorial board of the newspaper «Tiurma ivolia» sent a request to the local Directorate of the Ministry ofInternal Affairs about the number of agents killed in the course ofduty, about the number of agents disemployed for violations ofrights, about the data on criminality in the region, about theprogram of the fight with crime, the Directorate answered that itfinds unreasonable to cooperate with the newspaper. AnotherDirectorate on execution of punishments, having received a requeston the number of the deceased and causes of their death inpenitentiary establishments, about the number of TB and AIDS cases,etc., informed that all these data, according to Article 30 of thelaw «On information» are defined as classified (’for service useonly’) and must not be granted according to Article 37 of the samelaw.

 However, the information that is collected in state agencies as aresult of their activity, i.e. for the money of tax payers, cannotbe considered as classified, according to the same Article 30. Asto the term «for service use only», that is another bright exampleof a juridical term without definition with maltreatment of this inthe interests of a state agency.

 In general, one can get an impression that state agencies andbodies of all levels dodge giving out the information on theiractivities, carefully sift data on their own choice or just keepsilence. It is strange that the Parliamentary Committees do notanswer the requests of a human rights protecting group. That is whythere is little hope that the Parliament will use its right,granted by Article 28 of the law «On information», to control theexecution of law on the access to information.

 To conclude, we shall describe one more example. Somewhere in themiddle of 1996 we happened to see a new magazine «Polemika» whichhad already been published for six months. The names of theeditorial board were unknown to us. It appeared that this magazinecould not be purchased or subscribed, which was printed on the lastpage. We started to make inquires and have learned that themagazine is published by the administration of the UkrainianPresident and is distributed by closed express mail to ministriesand agencies, to region, city and district state administrationsthroughout Ukraine. This issue got to us only because there was anarticle about the Kharkiv publishing house «Folio» with which weclosely collaborated. After the publication of this material thedeputy head of Kharkiv administration phoned to «Folio» andsuggested help. Thus, this magazine plays the role of Moscow’Pravda» in the Communist times. From it the state officials learnthe news of state politics and recommendations and commands what todo. We wrote a letter to the editorial board of «Polemika» with therequest to exchange this magazine for our publications, and nevergot any answer. There is no need of further comments.

 All said above implies that there is an urgent necessity toinstall, as soon as possible, the institute of Ombudsman, accordingto Article 101 of the Constitution of Ukraine.

 Besides, it is necessary to adopt a law on public organizations,stipulating the duty of state agencies to grant information topublic organizations.

 V. Files of the Former Secret Police

 As we have already mentioned in the Introduction, there is no lawin Ukraine on the access to files of the former secret police, onlustration, as well as there are no drafts of such laws and thereis no discussion on their necessity.

 As we have mentioned above, the USS is practically quite closedfrom the society: almost all information on the USS and former KGBis a state secret. According to Article 27 of the law «On thenational archives’: the access to materials which pertain to statesecrets is limited until they will be declared nonsecret. Thus, theKGB archives are inaccessible for people having no right to workwith secret materials.

 Only one exception was made from this rule: in accordance with thelaw «On rehabilitation of victims of political repressions» therehabilitated citizen or his heirs has the right to read hispersonal file kept in the KGB archives. Recently all the files ofrehabilitated were transferred to region archives, and it isreported that in many towns the access to these archives is madedifficult. However, we do not mean the so-called files of theoperative records, kept by the KGB for any person. These files,after the liquidation of the 5th department of the KGB in 1989 mustbe destroyed, though, as far as we know, this process has notfinished yet. According to the data of the Presidential archive,made public in 1992, the files of the operative records related toarticles 190-prime and 70 of the Criminal Code of the RussianFederation and similar articles in the Criminal Codes of otherrepublics (in Ukraine these were 187-prime and 62), had been heldnot more than for 500,000 people. Actually, the number wasconsiderably larger, because in this section there were files for’refusniks» and for those persecuted for religious views.

 Other files still remain in the KGB archives and are inaccessibleto public investigators. Moreover, according to the Lviv society’Poshuk», which tries to find and identify the places of massburials of political prisoners, the archive data on theseexecutions are still inaccessible. Some data have started to bepublished by the USS in the magazine «From archives of VChK - GPU -NKVD - KGB» (only two issues have come out of press).

 VI. Public Disclosures of National Security Information

 The responsibility for disclosure of state secrets is regulated byArticle 67 of the Criminal Code and it lists the punishments asencarceration from two to five years, or, if the disclosure hadgrave consequences, then to the term from five to eight years. ThisArticle may be applied only to those persons who learned about thestate secrets in the course of their official activity. There areno laws that can be applied to persons who are not state officers.There are no other prohibitions of the publication of materialsconcerning the national security. It is noteworthy that thisArticle does not mention «the disclosure of the information thatinflicts damage on the state security» (in the Criminal Code theyuse the term «state security» instead of «national security’). Thisstatement is included to Article 56 «High treason» and Article 57’Espionage».

 There is also a draft of the law which envisages the administrativeresponsibility for the untimely and improper lifting the secretfrom the information which was considered a state secret.Depending on the gravity of the consequences, this draft envisagesthe fine from two to ten minimal untaxed incomes (i.e. from 34 to170 grivnas), but this draft has not been considered by theParliament yet. Very few facts of the disclosure of state secretshave been known. Pavlo Mysnik, chairman of the State Committee onstate secrets and technical protection of information, said at thepress conference that one state officer was fired and another waspunished disciplinarily for improper lifting the secrecy. In thesame interview P.Mysnik said that newsmen do not inflictsignificant damage on state secrets. Concerning some materialsprinted in the newspaper «Politika», state experts in protectingstate secrets came to the conclusion that the published materialswere not secret: «they concerned ways and methods of informing topexecutives on concrete reconnaissance». The investigation of thecircumstances under which information making a state secret is madepublic is under the USS competence.

 We know only one case connected with disclosure of state secrets.Nikolay Savelyev, a Lviv newsman, published an article in thenewspaper «Moloda Galitchina», where he mocked at the instructionon the recruitment of USS stool-pigeons requiring that they must be’nationally conscious». Savelyev and the editor-in-chief wereinterrogated in the USS in connection with this article. KharkivGroup requested the Lviv USS, asking to explain which was the legalbase of this interrogation, and they answered to us explaining thata criminal case was started on the disclosure of the secretdocument, and that they were looking for the channels of the leakfrom the USS. Later we requested them about the results of theinvestigation. We got no answer, but we know that the newsmen havenot suffered.

 Upon the whole, one may say that the attitude to publicationsconcerning national security and secrets is nowadays rather lax.For example, MPs often comment some problem discussed at a closedmeeting of the Parliament or its committees in mass media,including foreign ones. According to the newspaper «Zerkalo nedeli’(’Weekly Mirror’), confidential information connected with thepreparation on the state-level negotiations with foreignrepresentatives was repeatedly made public in mass media, althoughthis information had to be disclosed only in the course of thenegotiations. Several examples may be given here.

 It should be noted that the preliminary censorship in mass media isabsent (it is forbidden by Article 50 of the Constitution).Journalists often find out and publish confidential information,which the authorities would not like to be made public. Muchinformation is worded in a rude, even insulting tone, concerning topofficials too, and sanctions never followed except some libel cases.

 On the other hand, according to the opinion of EkaterinaZelenskaya, the chairwoman of the foundation for protecting freedomof speech and information, censorship as a way of delimitingdistribution of the undesirable information has various legalforms, such as military censorship, scientific-technical expertiseand many others, which do not fall under the conventionaldefinition of censorship. If to take account of the legal nihilismof the authorities, then it will appear that the freedom of speechand information can be delimited infinitely. Thus, for example,getting a job in various organizations is usually accompanied bysigning the document «On nondisclosing service information».According to E.Zelenskaya, official press services rather concealthan distribute information.

 Rather ambiguous is the question whether there exists thecensorship of electronic mass media. In the agreements concluded byauthors of TV and radio programs with channel owners there isusually a clause on the preliminary hearing, which is a kind ofcensorship. Facts of cancelling TV programs which containedundesirable information are known; some of them where accompaniedby sacking the authors.

 Besides, a tendency to greater secrecy is observed. The StateCommittee of Ukraine on state secrets and technical protection ofinformation has prepared the «Instruction on the procedure ofguaranteeing secrecy in state agencies, local administrations,enterprises, establishments and organizations of Ukraine». Thisdocument is classified since, by the opinion of the authors of theinstruction, «this instruction completely discloses methods andforms of the protection of information in our state» (a quotationfrom P.Mysnik’s interview). This document, according to P.Mysnik,is similar to the secret instruction 0126 which regulated secrecyin the former USSR; moreover, some statements of the oldinstruction are left intact in the new document, now the draft isbeing approbated in ministries, agencies and other organizationsthat deal with state secrets.

 In conclusion it should be noted that the Criminal Code envisagesthe responsibility for the disclosure of children adoption againstthe will of the adopting parents (Article 115-1), for thedisclosure of the result of the AIDS-test (Article 108-4), forlibel (Article 125 which envisages the punishment up to three yearsof encarceration, and if combined with the commitment of antistateor other grave crime, to five years of imprisonment), for abuse(Article 126), and for disclosure of commercial secrets (Article148-7).

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