Security services. Parliamentary oversight. Mar.1998
22.05.2004
During 1997-1998 the strain between the legislative and executive branches of power, as well as between various financial-industrial groups and related political sides was steadily increasing. This opposition was, in particular, expressed in the activities of the President and the Supreme Rada of Ukraine to grab more levers of power, to get greater control over mass media, especially TV and radio, and to distribute the information blaming their main political rivals (mutual accusations in corruption, misuse of power and the like). The struggling sides tried to use the security services which, in their turn, tended to stand aside and not take the part in the political struggle. However, on the eve of the parliamentary election in March 1998 the organs of the executive power increased the pressure on the prosecutors’ structures, the Ministry of interior and the USS in order to use them for the removal of the opposition. It is the unwillinnless to take part in the political struggle that explains sacking the USS head Vladimir Radchenko 0n April 1998. He was replaced with Leonid Derkach, the former head of the Customs. He was an old friend of President Kuchma (when Leonid Kuchma was the party organizer at Yuzhmash plant, Derkac was the Head of the First department there). Along with Radchenko, ten out of 25 heads of regional USS Directorate heads were replaced during April, the Collegium of the USS was also substantially cleansed. Another explanation of these replacements is that the President sacked supporters of the former head of the USS and later the Prime-Minister Evgeniy Marchuk, which will be one of the main rivals of Kuchma in the coming presidential election.
The President’s administration did their best to prevent the appointment of Marchuk as the Chairman of the Committee of Defence and National Security, one of whose functions is the parliamentary control over security services. The Committee was headed by Grigoriy Kriuchkov, a member of the communist party of Ukraine, the former first secretary of a region committee and the former head of a department of the central committee of the communist party, a man without experience of work in special services. The Committee now abounds in representatives of left parties and members of Soviet special services.
The special services are used now for starting criminal cases against the firms and businessmen who support the opposition. So in the Crimea, the entire party was beheaded - the Party of the economical restoration of the Crimea, which is a collective member of the democratic party of Ukraine. The self-ruling bodies in Yalta and in Odessa was displaced, with applying cruel and illegal methods of investigation. General Prosecutor’s office was used for starting criminal cases against journalists of the opposition. The newspaper ’Politika’ made public Directive No.04/122-98 of 13 May 1998 classified ’secret’ and directed from the General Prosecutor’s office to prosecutors of some districts of Kiev with the suggestion to check materials passed from the President’s Administration and concerning the publication by the newspapers ’Pravda Ukrainy’, ’Vseukrainskie Vedomosti’, ’Politika’, ’Selskie Vesti’, ’Tovarishch’, and ’My’ of the information which discredits, compromizes and insults the President of Ukraine as a citizen and as the Head of the state. The letter contains the directions to start administrative or criminal cases according to the results of the checking.
Representatives of the opposition also assert that the special services are used for intimidation and even for extermination of inconvenient persons. So, in the end of July 1998 an attempt at the life of Sergey Odarich, the Chairman od the ’Ukrainskaya Perspektiva’ fund and the editor-in-chief of the newspaper ’My’, was committed. A stranger came up to him near his home and promised that Odarich will be killed if he does not stop his political activities. Odarich answered that they had nothing to speak about and went away. The stranger fired and hit Odarich on the hip. In Odarich’s opinion the idea was not to kill him, but just to intimidate. The only party interested in him, he added, is President Kuchma, since he and his newspaper have no other enemies (the newspaper ’Den’, No.143 of 30 July 1998).
Sergey Golovatyi, the former minister of justice, close to the political union ’My’, said in his interview on the radio Liberty that within the structure of special services there is a special unit whose duty is to exterminate those who are disliked by the top officials. As we have observed, there was no official reaction on this sensational disclosure. WIRETAPPING
Section 2 of the Directive of the Supreme Court of Ukraine, No.9 ofNovember 1, 1996, ’On referring to the Constitution inadministering justice’ contains the following statement: ’A warrantfor entering one’ home or some other estate, or for stopping one’correspondence, or for intercepting one’s correspondence in postalor telegraph offices, or for any other interception of informationfrom any communication channels is given by court only. On theresults of considering materials about giving a warrant, which isdone by the court, with keeping the investigation secret, aprocedural resolution is taken. On the basis of this directive, awarrant for wiretapping is now given not by a prosecutor, as it isstipulated in the law on Operative and Detective Actions (ODA),but by the court. However, the law on ODA has not been modified,the Penal Procedural Code contains no directions on the procedureof obtaining a warrant for wiretapping, so it seems that thisprocedure is not based on law, but is regulated by sum sublegal,perhaps secret orders in the special services that carry out ODA.
It should be also noted that the list of the ministries, agenciesand departments that carry out ODA has been substantiallyincreased. The tax inspection has obtained the right for ODA, andundoubtedly the National Bureau of investigations, which is beingcreated now, will obtain it too. It is also worth of noting thatthe new edition of the Ukrainian law on the tax inspection grantsit all the rights, which agencies of the Ministry of Interiorhave,m without stipulating, in fact, no responsibility forviolating law. The tax militia performs all the functions of thecriminal investigation and court: it investigates crimes connectedwith dodging tax, serves as a prosecutor at court, acts as anadvocate, takes a court decision and even mercy the accused bydeciding to keep a case from the court.
It is noteworthy that the Cabinet of Ministers of Ukraine has not worked out the ’Instruction on the State Expert in questions of secrets’, as it was prescribed by the resolution of the Supreme Rada of Ukraine ’On the order of introducing of introducing the law "On state secrets"’as long ago as in the beginning of 1994. And according to Article 8 of this law ’the State Expert in questions of secrets bears full responsibility for lawful and well-grounded decisions to relate some information to state secrets’ and that the above-indicated Instruction ’must be approved by the President of Ukraine’. Our requests directed to the State Committee for protection of state secrets and technical protection of information (Comsecret in Officialese) about who personally is the State Expert in each ministry and agency were left unanswered (as, by the way, all other requests directed to this committee). The situation with the publication of changes and additions into the List of Information being State Secrets (LISS) is scandalous. According to Article 10 of the law on state secrets and the ’Instruction on the procedure of forming and publishinf the LISS’, these changes and additions shall be published not later than three months since the day of the reception by Comsecret of the corresponding decision of the State Expert: records to the LISS must not contain state secrets. Nonetheless, almost all the changes introduced to the LISS after the first publication of the latter on 18 August 1995 have not been published. In the above-mentioned database ’Pravo’ they give numbers and dates of the orders in Comsecret on introducing changes to the LISS, but the very texts are omitted as being secret.
When the law on the Directorate of the state guard was considered the then Head of the USS General-Colonel Vladimir Radchenko said in his interview to the newspaper ’Kievskie Vedomosti: ’Nowadays everyone wants to use the TIP, and it is difficult to understand who eavesdrop on whom. Do we have a police state? In the USS this business is legally grounded. We have created a system of measures preventing any opportunity for the authorities to use investigation methods without sanctions. But I am not sure that such control is set in other services. Thousands of non-government security services have been created in the country, which work without control and without responsibility. Recently we have detained persons who had ID almost identical with those for USS men. Regretfully, even some of our generals signed these documents. We are directing the materials to the prosecutor’s office.’ (’Kievskie Vedomocti, 11 February 1998).
ACCESS TO INFORMATION AND STATE SECRETS
During 1997-1998 the access to decisions of the centraladministration became much easier due to the wide distribution ofthe database ’Pravo’ which is maintained by the informationdepartment of the Supreme Rada Secretariat. This database is sitedalso in InterNet (in the Ukrainian language). It contains the lawsand decisions of the Supreme Rada, orders and other documents ofthe Cabinet of Ministers and all state committees, presidentialedicts, resolutions of the Plenum of the Supreme andConstitutional courts. It should be noted that this base isavailable commercially, the first contribution equalling $ 300for one copy.
However, for man in the street the objective information onadministration activities became much less accessible, because,first, practically no independent mass media remained in thecountry, all of them, especially TV, are very rigidly controlled byvarious political forces, and, secondly, citizens are too poor tosubscribe to newspapers and magazines. Thus, many have returned tothe popular sources of information of the Soviet period, i.e. radiostations Liberty, BBS and the Voice of America.
Persecutions of and criminal attacks on journalists have becomemore frequent. Two newsmen were killed in the direct connectionwith their professional activities. This year during the firsteight months 39 crimes against journalists were committed, and only16 were disclosed. In September the law ’On the state support ofmass media and social protection of journalists’ was adopted. Firstof all the law puts the stress on the production of information inthe state Ukrainian language. Besides the law grants someguarantees for the protection of journalists from the stateinterference into their professional activities, as well as anumber of social privileges for them. Actually the law is notrealized, but if it did, it would hinder the freedom of expression.
The law ’On the procedure of making public the information onactivities of state power bodies and local administration inUkraine by mass media was adopted simultaneously with the law onthe state support of mass media. This act may be interpreted assigning a contract between administration bodies and editorialboards. In particular the law prohibits anyone, except officiallysworn translators, to translate official documents from Ukrainianto any other language. It is noteworthy that the alleged contractkeeps editors under pressure, and the prohibition to translatekills two birds with one stone: it supports the state language andhinders distribution of the official information.
The strong administrative pressure on the mass media oppositionalto the President and the government, mostly controlled by the party ’Gromada’, also restricts the access to information. One of the tools for this pressure became libel claims from government officials with unrealistically large fines. Regretfully, the courts usually satisfy the claims, thus making bankrupt both the newspaper and the newspaperman. Two of the newspapers controlled by the opposition were stopped at all : ’Pravda Ukrainy’ was banned by the administrative decision of the Ministry of Press and Information and ’Vseukrainskie Vedomosti’ due to financial difficulties after satisfying a nonsensical libel claim with a fantastical fine.
Generally speaking, restrictive tendencies are becoming strongerand stronger. The notorious ’first departments’ at research anddesign institutes have galvanized to the long-forgotten activity.The Cabinet of Ministers adopted the conception of technicalprotection of information. Two more documents have been adopted:’A frame directive on a secret archive department in stateagencies, enterprises, establishments and organizations’ and’Instruction on the selection and transfer of secret documents forarchive storage’. A number of similar documents have been prepared,in particular, amendments and additions to the law ’On statesecrets’ and ’Instruction mon introducing the regime of secrecy instate and local administration bodies, in enterprises,establishments and organizations in Ukraine’. This instruction hasbeen already classified since, according to its authors, ’thisinstruction completely uncovers methods and forms of protectingsecret information in our state’. This instruction closely followsthe corresponding instruction that regulated questions of secrecyin the former USSR, many positions are borrowed verbatim. Now thedraft is being approbated in ministries, agencies and organizationswhich deal in secrets. The draft has been already approved in thepart dealing with state secrets. Nothing is known about theadoption of this draft by the Supreme Rada of Ukraine. Thedraft of another draft law is prepared where the administrativeresponsibility is stipulated for violating the law on statesecrets. All this, as usual, is done without any publicdiscussion: the legislative activity in the country is closed fromoutsiders.
In 1997-1998 the law regulating the protection of confidentialinformation was somewhat modified. The Constitutional Court ofUkraine (CC) made more precise Article 23 of the law ’Oninformation’ concerning the protection of confidential data. Inthis article the information on a person is defined ’as the set ofdocumented or publicized data on the person’. The main personaldata are: nationality, education, family status, religion, health,as well as address, date and place of birth. The sources of thedocumented information on a person can be documents given to theperson and documents signed by this person, as well as the datacollected by state and local administration bodies gathered withintheir rights. Article 23 prohibits collecting information about aperson without the person’s consent, except in the cases stipulatedby law. Each person has the right to study the informationpertaining to him/herself. This information is protected by law.®
On the 6 of November 1997 the CC gave an interpretation of Article23, responding to the application of Konstantin Ustimenko, aninhabitant of Dnepropetrovsk (by the way, a reader of the weekly’Prava Ludyny’ - ’Human Rights’- published by the Kharkiv humanrights protection group).The claimant was put on the psychiatriccases list in 1988 - 1990, which fact restricted his rights inoccupying some jobs. Several times he addressed court andprosecutor’s office, but they refused him to get full informationon the reasons of putting him on the list and showing him hishospital card. According to the cited CC directive, ’not onlythe collection, but the storage, usage and distribution ofconfidential information without his/her consent is prohibited,except in the cases stipulated by law, and only in the interests ofthe national security, economic prosperity, human rights andfreedoms’, and ’each person has the right to know which data andwith what purpose are collected, how and with which purpose theyare going to be used, ... as well as the right to get acquaintedwith the information collected about him by state and localadministration, establishments and organizations, if these data donot make a state secret or another kind of secrets stipulated bylaw’ (’Pravo Ukrainy’, No.12, 1997, pp.111-112). Thus, the CCspread the prohibition of Article 23 to all main forms ofinformation processing.
This Directive of the CC was sharply criticized as aimed at therestriction of rights of journalists. The known analytical weekly’Zerkalo nedeli’ printed the following comment to the Directive:’Now the people in power got still another convenient opportunity tostep on the tail of newspeople... It is not impossible that thenext step of state officers will be encrypting of their names, soeveryone who will address to them by name will be handcuffed andbrought to the nearest precinct, for third-degreeing from them thesource of the secret information’. (Zerkalo Nedeli’, 21 November,1997). At the conference ;’Mass media and society: aspects ofinteraction’ a group of participants approved the appeal inwhich it was noted that the CC interpretation ;’not onlycompletely devoids journalists of the right to inform thepublic on the activity of any politician, but finally destroys thefreedom of speech in Ukraine’ (cited from ’Legal Bulletin for massmedia’, November-December, 1997, No.5, p.5). On 24 November at apress conference Ivan Timchenko, the Chairman of the CC declaredthat the interpretation of several articles of the law is not aimedat restricting of journalist’s rights; the purpose of theinterpretation was to concord the articles with the Constitution ofUkraine, which contains a wider treatment. Journalists have theright to check and verify information, for example, on candidatesto the Parliament, since, having made public the information aboutthemselves after entering the political struggle, a candidate’allegedly gives his consent for further disclosing thisinformation’. The CC head confessed that there is no hard anddistinctive lines between confidential information, which a privateperson would be unwilling to disclose, and the information knownpublicly’ (Ibidem, p.5).
The concept of the Technical Information Protection (TIP) deserves a special consideration. The TIP is defined in the concept as an activity aimed at the provision, by technical means, of the priority of access, of the integrity and accessibility (i.e. impossibility to block) of the information which contains state secrets and other secrets determined by law, as well as confidential information: besides, it must ensure the integrity and the accessibility of the open information, important for individuals, the society and the state. This definition makesprecise one of the principles of shaping and conducting the statepolicy in the TIP sphere: ’it is necessary to protect by technicalmeans the information which contains state secrets and othersecrets determined by law, as well as the confidential informationwhich is the property of the state, the open information which isimportant for the state, regardless of where this informationcirculates, and also the open information which is important forthe society and the state, if this information circulates in thechannels in the state power organs and the localself-administration, in the Academy of Sciences, in the armedforces or other paramilitary units, in the agencies of the Ministryof Interior, in state enterprises, in state establishments andorganizations’. The law unambiguously mentions only the notion of astate secret out of all above-mentioned entities. No ’other secretsdetermined by law’ are mentioned in any Ukrainian law. The conceptof ’the confidential information which is the property of thestate’is an obvious nonsense: after Article 30 of the law ’Oninformation’ confidential information can be property of naturaland juridical persons, but not of the state. The concept of ’theopen information which is important for the state, regardlessof where this information circulates’ is hopelessly fuzzy, the moreso that it is followed by a similar concept with a more preciselist of the subjects of the information exchange. All theseconcepts are so poorly defined, that the decision what informationshould be protected will be taken by state officials according totheir reasons, with no restriction on any arbitrary actions. Theconcept plans to install TIP units at any office where theinformation should be protected. We believe there are seriousgrounds to fear that the realization of this concept willsubstantially restrict access to official information.
It is worth to mention the campaign held during 1997-1998 onthe introduction of identifying numbers for all natural persons.residing in Ukraine. At first the numbers were introduced by theTax Inspection of Ukraine for making the list of tax payers ’withthe purpose of the convenient control over the timely and completepayments of taxes’. These numbers were entered by the TaxInspection as a personal code to all automated systems ofprocessing information (The Tax Inspection’s letter of 21 January1997, No.29-0105/10-459). Later these codes were introduced to allstandard blanks of the primary account (The letter of the StateCommittee of statistics of 24 December 1997, No.2-2-5/96). Duringthe first half of 1998 state bodies forced all people residing inthe country and needing to get money from any source to get theidentifying number. The procedure was a tormenting one, especiallyfor pensioners who had at least twice stand in the frostunbelievably lengthy queues for handing and getting back theaccount card and then receiving a certificate with the number. Inthe actual fact, this number is aimed for using as a singleuniversal code of a person in the creation® of the United AutomatedPassport System (UAPS), as it was stated by the ’Concept ofcreating the UAPS’, adopted by the Cabinet of Ministers of Ukrainein the beginning of 1997 (Directive No.40 of 20 January 1997). Inour opinion, the introduction of the unique state code will enablestate agencies to retrieve personal data on a person without thelatter’s consent, which abuses the constitutional right on privacyand contradict the discussed Directive of the CC.
The President’s administration did their best to prevent the appointment of Marchuk as the Chairman of the Committee of Defence and National Security, one of whose functions is the parliamentary control over security services. The Committee was headed by Grigoriy Kriuchkov, a member of the communist party of Ukraine, the former first secretary of a region committee and the former head of a department of the central committee of the communist party, a man without experience of work in special services. The Committee now abounds in representatives of left parties and members of Soviet special services.
The special services are used now for starting criminal cases against the firms and businessmen who support the opposition. So in the Crimea, the entire party was beheaded - the Party of the economical restoration of the Crimea, which is a collective member of the democratic party of Ukraine. The self-ruling bodies in Yalta and in Odessa was displaced, with applying cruel and illegal methods of investigation. General Prosecutor’s office was used for starting criminal cases against journalists of the opposition. The newspaper ’Politika’ made public Directive No.04/122-98 of 13 May 1998 classified ’secret’ and directed from the General Prosecutor’s office to prosecutors of some districts of Kiev with the suggestion to check materials passed from the President’s Administration and concerning the publication by the newspapers ’Pravda Ukrainy’, ’Vseukrainskie Vedomosti’, ’Politika’, ’Selskie Vesti’, ’Tovarishch’, and ’My’ of the information which discredits, compromizes and insults the President of Ukraine as a citizen and as the Head of the state. The letter contains the directions to start administrative or criminal cases according to the results of the checking.
Representatives of the opposition also assert that the special services are used for intimidation and even for extermination of inconvenient persons. So, in the end of July 1998 an attempt at the life of Sergey Odarich, the Chairman od the ’Ukrainskaya Perspektiva’ fund and the editor-in-chief of the newspaper ’My’, was committed. A stranger came up to him near his home and promised that Odarich will be killed if he does not stop his political activities. Odarich answered that they had nothing to speak about and went away. The stranger fired and hit Odarich on the hip. In Odarich’s opinion the idea was not to kill him, but just to intimidate. The only party interested in him, he added, is President Kuchma, since he and his newspaper have no other enemies (the newspaper ’Den’, No.143 of 30 July 1998).
Sergey Golovatyi, the former minister of justice, close to the political union ’My’, said in his interview on the radio Liberty that within the structure of special services there is a special unit whose duty is to exterminate those who are disliked by the top officials. As we have observed, there was no official reaction on this sensational disclosure. WIRETAPPING
Section 2 of the Directive of the Supreme Court of Ukraine, No.9 ofNovember 1, 1996, ’On referring to the Constitution inadministering justice’ contains the following statement: ’A warrantfor entering one’ home or some other estate, or for stopping one’correspondence, or for intercepting one’s correspondence in postalor telegraph offices, or for any other interception of informationfrom any communication channels is given by court only. On theresults of considering materials about giving a warrant, which isdone by the court, with keeping the investigation secret, aprocedural resolution is taken. On the basis of this directive, awarrant for wiretapping is now given not by a prosecutor, as it isstipulated in the law on Operative and Detective Actions (ODA),but by the court. However, the law on ODA has not been modified,the Penal Procedural Code contains no directions on the procedureof obtaining a warrant for wiretapping, so it seems that thisprocedure is not based on law, but is regulated by sum sublegal,perhaps secret orders in the special services that carry out ODA.
It should be also noted that the list of the ministries, agenciesand departments that carry out ODA has been substantiallyincreased. The tax inspection has obtained the right for ODA, andundoubtedly the National Bureau of investigations, which is beingcreated now, will obtain it too. It is also worth of noting thatthe new edition of the Ukrainian law on the tax inspection grantsit all the rights, which agencies of the Ministry of Interiorhave,m without stipulating, in fact, no responsibility forviolating law. The tax militia performs all the functions of thecriminal investigation and court: it investigates crimes connectedwith dodging tax, serves as a prosecutor at court, acts as anadvocate, takes a court decision and even mercy the accused bydeciding to keep a case from the court.
It is noteworthy that the Cabinet of Ministers of Ukraine has not worked out the ’Instruction on the State Expert in questions of secrets’, as it was prescribed by the resolution of the Supreme Rada of Ukraine ’On the order of introducing of introducing the law "On state secrets"’as long ago as in the beginning of 1994. And according to Article 8 of this law ’the State Expert in questions of secrets bears full responsibility for lawful and well-grounded decisions to relate some information to state secrets’ and that the above-indicated Instruction ’must be approved by the President of Ukraine’. Our requests directed to the State Committee for protection of state secrets and technical protection of information (Comsecret in Officialese) about who personally is the State Expert in each ministry and agency were left unanswered (as, by the way, all other requests directed to this committee). The situation with the publication of changes and additions into the List of Information being State Secrets (LISS) is scandalous. According to Article 10 of the law on state secrets and the ’Instruction on the procedure of forming and publishinf the LISS’, these changes and additions shall be published not later than three months since the day of the reception by Comsecret of the corresponding decision of the State Expert: records to the LISS must not contain state secrets. Nonetheless, almost all the changes introduced to the LISS after the first publication of the latter on 18 August 1995 have not been published. In the above-mentioned database ’Pravo’ they give numbers and dates of the orders in Comsecret on introducing changes to the LISS, but the very texts are omitted as being secret.
When the law on the Directorate of the state guard was considered the then Head of the USS General-Colonel Vladimir Radchenko said in his interview to the newspaper ’Kievskie Vedomosti: ’Nowadays everyone wants to use the TIP, and it is difficult to understand who eavesdrop on whom. Do we have a police state? In the USS this business is legally grounded. We have created a system of measures preventing any opportunity for the authorities to use investigation methods without sanctions. But I am not sure that such control is set in other services. Thousands of non-government security services have been created in the country, which work without control and without responsibility. Recently we have detained persons who had ID almost identical with those for USS men. Regretfully, even some of our generals signed these documents. We are directing the materials to the prosecutor’s office.’ (’Kievskie Vedomocti, 11 February 1998).
ACCESS TO INFORMATION AND STATE SECRETS
During 1997-1998 the access to decisions of the centraladministration became much easier due to the wide distribution ofthe database ’Pravo’ which is maintained by the informationdepartment of the Supreme Rada Secretariat. This database is sitedalso in InterNet (in the Ukrainian language). It contains the lawsand decisions of the Supreme Rada, orders and other documents ofthe Cabinet of Ministers and all state committees, presidentialedicts, resolutions of the Plenum of the Supreme andConstitutional courts. It should be noted that this base isavailable commercially, the first contribution equalling $ 300for one copy.
However, for man in the street the objective information onadministration activities became much less accessible, because,first, practically no independent mass media remained in thecountry, all of them, especially TV, are very rigidly controlled byvarious political forces, and, secondly, citizens are too poor tosubscribe to newspapers and magazines. Thus, many have returned tothe popular sources of information of the Soviet period, i.e. radiostations Liberty, BBS and the Voice of America.
Persecutions of and criminal attacks on journalists have becomemore frequent. Two newsmen were killed in the direct connectionwith their professional activities. This year during the firsteight months 39 crimes against journalists were committed, and only16 were disclosed. In September the law ’On the state support ofmass media and social protection of journalists’ was adopted. Firstof all the law puts the stress on the production of information inthe state Ukrainian language. Besides the law grants someguarantees for the protection of journalists from the stateinterference into their professional activities, as well as anumber of social privileges for them. Actually the law is notrealized, but if it did, it would hinder the freedom of expression.
The law ’On the procedure of making public the information onactivities of state power bodies and local administration inUkraine by mass media was adopted simultaneously with the law onthe state support of mass media. This act may be interpreted assigning a contract between administration bodies and editorialboards. In particular the law prohibits anyone, except officiallysworn translators, to translate official documents from Ukrainianto any other language. It is noteworthy that the alleged contractkeeps editors under pressure, and the prohibition to translatekills two birds with one stone: it supports the state language andhinders distribution of the official information.
The strong administrative pressure on the mass media oppositionalto the President and the government, mostly controlled by the party ’Gromada’, also restricts the access to information. One of the tools for this pressure became libel claims from government officials with unrealistically large fines. Regretfully, the courts usually satisfy the claims, thus making bankrupt both the newspaper and the newspaperman. Two of the newspapers controlled by the opposition were stopped at all : ’Pravda Ukrainy’ was banned by the administrative decision of the Ministry of Press and Information and ’Vseukrainskie Vedomosti’ due to financial difficulties after satisfying a nonsensical libel claim with a fantastical fine.
Generally speaking, restrictive tendencies are becoming strongerand stronger. The notorious ’first departments’ at research anddesign institutes have galvanized to the long-forgotten activity.The Cabinet of Ministers adopted the conception of technicalprotection of information. Two more documents have been adopted:’A frame directive on a secret archive department in stateagencies, enterprises, establishments and organizations’ and’Instruction on the selection and transfer of secret documents forarchive storage’. A number of similar documents have been prepared,in particular, amendments and additions to the law ’On statesecrets’ and ’Instruction mon introducing the regime of secrecy instate and local administration bodies, in enterprises,establishments and organizations in Ukraine’. This instruction hasbeen already classified since, according to its authors, ’thisinstruction completely uncovers methods and forms of protectingsecret information in our state’. This instruction closely followsthe corresponding instruction that regulated questions of secrecyin the former USSR, many positions are borrowed verbatim. Now thedraft is being approbated in ministries, agencies and organizationswhich deal in secrets. The draft has been already approved in thepart dealing with state secrets. Nothing is known about theadoption of this draft by the Supreme Rada of Ukraine. Thedraft of another draft law is prepared where the administrativeresponsibility is stipulated for violating the law on statesecrets. All this, as usual, is done without any publicdiscussion: the legislative activity in the country is closed fromoutsiders.
In 1997-1998 the law regulating the protection of confidentialinformation was somewhat modified. The Constitutional Court ofUkraine (CC) made more precise Article 23 of the law ’Oninformation’ concerning the protection of confidential data. Inthis article the information on a person is defined ’as the set ofdocumented or publicized data on the person’. The main personaldata are: nationality, education, family status, religion, health,as well as address, date and place of birth. The sources of thedocumented information on a person can be documents given to theperson and documents signed by this person, as well as the datacollected by state and local administration bodies gathered withintheir rights. Article 23 prohibits collecting information about aperson without the person’s consent, except in the cases stipulatedby law. Each person has the right to study the informationpertaining to him/herself. This information is protected by law.®
On the 6 of November 1997 the CC gave an interpretation of Article23, responding to the application of Konstantin Ustimenko, aninhabitant of Dnepropetrovsk (by the way, a reader of the weekly’Prava Ludyny’ - ’Human Rights’- published by the Kharkiv humanrights protection group).The claimant was put on the psychiatriccases list in 1988 - 1990, which fact restricted his rights inoccupying some jobs. Several times he addressed court andprosecutor’s office, but they refused him to get full informationon the reasons of putting him on the list and showing him hishospital card. According to the cited CC directive, ’not onlythe collection, but the storage, usage and distribution ofconfidential information without his/her consent is prohibited,except in the cases stipulated by law, and only in the interests ofthe national security, economic prosperity, human rights andfreedoms’, and ’each person has the right to know which data andwith what purpose are collected, how and with which purpose theyare going to be used, ... as well as the right to get acquaintedwith the information collected about him by state and localadministration, establishments and organizations, if these data donot make a state secret or another kind of secrets stipulated bylaw’ (’Pravo Ukrainy’, No.12, 1997, pp.111-112). Thus, the CCspread the prohibition of Article 23 to all main forms ofinformation processing.
This Directive of the CC was sharply criticized as aimed at therestriction of rights of journalists. The known analytical weekly’Zerkalo nedeli’ printed the following comment to the Directive:’Now the people in power got still another convenient opportunity tostep on the tail of newspeople... It is not impossible that thenext step of state officers will be encrypting of their names, soeveryone who will address to them by name will be handcuffed andbrought to the nearest precinct, for third-degreeing from them thesource of the secret information’. (Zerkalo Nedeli’, 21 November,1997). At the conference ;’Mass media and society: aspects ofinteraction’ a group of participants approved the appeal inwhich it was noted that the CC interpretation ;’not onlycompletely devoids journalists of the right to inform thepublic on the activity of any politician, but finally destroys thefreedom of speech in Ukraine’ (cited from ’Legal Bulletin for massmedia’, November-December, 1997, No.5, p.5). On 24 November at apress conference Ivan Timchenko, the Chairman of the CC declaredthat the interpretation of several articles of the law is not aimedat restricting of journalist’s rights; the purpose of theinterpretation was to concord the articles with the Constitution ofUkraine, which contains a wider treatment. Journalists have theright to check and verify information, for example, on candidatesto the Parliament, since, having made public the information aboutthemselves after entering the political struggle, a candidate’allegedly gives his consent for further disclosing thisinformation’. The CC head confessed that there is no hard anddistinctive lines between confidential information, which a privateperson would be unwilling to disclose, and the information knownpublicly’ (Ibidem, p.5).
The concept of the Technical Information Protection (TIP) deserves a special consideration. The TIP is defined in the concept as an activity aimed at the provision, by technical means, of the priority of access, of the integrity and accessibility (i.e. impossibility to block) of the information which contains state secrets and other secrets determined by law, as well as confidential information: besides, it must ensure the integrity and the accessibility of the open information, important for individuals, the society and the state. This definition makesprecise one of the principles of shaping and conducting the statepolicy in the TIP sphere: ’it is necessary to protect by technicalmeans the information which contains state secrets and othersecrets determined by law, as well as the confidential informationwhich is the property of the state, the open information which isimportant for the state, regardless of where this informationcirculates, and also the open information which is important forthe society and the state, if this information circulates in thechannels in the state power organs and the localself-administration, in the Academy of Sciences, in the armedforces or other paramilitary units, in the agencies of the Ministryof Interior, in state enterprises, in state establishments andorganizations’. The law unambiguously mentions only the notion of astate secret out of all above-mentioned entities. No ’other secretsdetermined by law’ are mentioned in any Ukrainian law. The conceptof ’the confidential information which is the property of thestate’is an obvious nonsense: after Article 30 of the law ’Oninformation’ confidential information can be property of naturaland juridical persons, but not of the state. The concept of ’theopen information which is important for the state, regardlessof where this information circulates’ is hopelessly fuzzy, the moreso that it is followed by a similar concept with a more preciselist of the subjects of the information exchange. All theseconcepts are so poorly defined, that the decision what informationshould be protected will be taken by state officials according totheir reasons, with no restriction on any arbitrary actions. Theconcept plans to install TIP units at any office where theinformation should be protected. We believe there are seriousgrounds to fear that the realization of this concept willsubstantially restrict access to official information.
It is worth to mention the campaign held during 1997-1998 onthe introduction of identifying numbers for all natural persons.residing in Ukraine. At first the numbers were introduced by theTax Inspection of Ukraine for making the list of tax payers ’withthe purpose of the convenient control over the timely and completepayments of taxes’. These numbers were entered by the TaxInspection as a personal code to all automated systems ofprocessing information (The Tax Inspection’s letter of 21 January1997, No.29-0105/10-459). Later these codes were introduced to allstandard blanks of the primary account (The letter of the StateCommittee of statistics of 24 December 1997, No.2-2-5/96). Duringthe first half of 1998 state bodies forced all people residing inthe country and needing to get money from any source to get theidentifying number. The procedure was a tormenting one, especiallyfor pensioners who had at least twice stand in the frostunbelievably lengthy queues for handing and getting back theaccount card and then receiving a certificate with the number. Inthe actual fact, this number is aimed for using as a singleuniversal code of a person in the creation® of the United AutomatedPassport System (UAPS), as it was stated by the ’Concept ofcreating the UAPS’, adopted by the Cabinet of Ministers of Ukrainein the beginning of 1997 (Directive No.40 of 20 January 1997). Inour opinion, the introduction of the unique state code will enablestate agencies to retrieve personal data on a person without thelatter’s consent, which abuses the constitutional right on privacyand contradict the discussed Directive of the CC.