Appeal of the Kharkov group for human rights protection
To President of Ukraine Leonid Kuchma
We are turning to you in the connection with the fact that on 11 May the Supreme Rada of Ukraine adopted the Law of Ukraine «On introduction of changes into some legislative acts of Ukraine» (registration No. 2663) taking into account your propositions. Before that this Law had been adopted on 9 July 2003. We believe that this law endangers the right for information, groundlessly restricts the freedom of expression and contradicts the interests of the society and the Ukrainian state as a whole.
The changes introduced into the Law on the press essentially narrows the constitutional right for information (and this fact violates Article 64 of the Constitution, which prohibits any restrictions of constitutional rights and freedoms, except the cases envisaged by the Constitution). In particular, part 1 of Article 2 «Freedom of activities of printed mass media» reads now: «the right of every citizen for free and independent search, obtaining, fixing, storage, use and distribution (publication) of any information with free access» (item 1 of part 2 of Article 26).
So, now it is not permitted to obtain, use, distribute and store the information with the restricted access, that is, according to Article 30 of the Law «On information», confidential or secret information. According to the above-mentioned article, secret information is the information, which represents «state secrets or other secret information envisaged by laws, the divulgence of which would inflict damage to an individual, society and state». The definition of state secrets and the regime of the access to information representing state secrets are established by the Law of Ukraine «On state secrets». As to «other secret information envisaged by laws», there the situation seems to be more obscure. In accordance with Article 30 of the Law «On information», the procedure of relation of information to the category of secrets is stipulated by the corresponding organs with the observance of the demands of the Law «On information». Since Article 21 of this Law reads that sources and order of obtaining, use, storage and distribution of the official information of the state organs of all levels is regulated by the legislative acts on these organs, then it would be quite natural to think that this must be reflected in the corresponding laws. Yet, not a single law contains the definition of other types of secret information owned by state organs.
In our opinion, item 6 of your propositions to this Law in the version that had been adopted on 9 July 2003: «To give the definition of confidential information owned by the state», was not taken into account by the Supreme Rada of Ukraine.
Really, the second part of Article 30 contains the definition of confidential information: this is «the data, which are owned, used or disposed by physical or juridical persons and are distributed by their wish according to the conditions established by them». We want to point out that, although it is not said directly, the confidential information may be owned not only by physical or non-governmental juridical persons, since, according to Article 19 of the Constitution, «organs of state power and local self-government, their officers must act only on the basis and within the limits of their authorities, using the methods stipulated by the Constitution and laws of Ukraine», that is they may not distribute the information «by their wish according to the conditions established by them». So, one should not reckon that the second part of Article 30 gives the definition of «confidential information owned by the state». The mentioned collision is not solved by parts 3 and 4 of Article 30, which were introduced into Law No. 2663.
Part 3 reads: «the information, which is owned by the state and is used by the organs of state power and local self-government, enterprises and organizations of all forms of property, may be, in accordance to the law, classified as confidential information with the restricted access with the purpose of its preservation». The restriction of the access to information «with the purpose of its preservation» looks illogical and strange. It is incomprehensible, according to which law this status is given. As to part 4, where the informational items are listed, which cannot be classified in this manner (this list almost verbatim copies the list of the informational items, which cannot be regarded as state secrets), one may predict easily that in this case these restrictions will not work: state officials, but not laws, will decide whether to restrict the access to information or not. The «negative» definition of confidential information owned by the state, given in the Law, could work, if the legislators stipulated the creation of «The list of informational items, which present confidential information owned by the state», as it was done with the informational items, which represented state secrets. In that case the contradiction would be liquidated, when the same data are freely distributed «by the wish» of one agency and are classified as secret «by the wish» of another one.
However, the adopted Law does not envisage such «List». And, according to item 2 of operating Decree No. 1813 of 27 November 1998 «On the approval of Instruction on the procedure of registration, storage and use of documents, files, editions and other material carriers of information, which contain confidential information owned by the state», central and local organs of executive power and organs of local self-government must, within six months, develop and introduce into practice the lists of confidential information owned by the state. This information is classified «for service use only». Yet, not every agency may have such list. The instruction does not specify, who and on the basis of which criteria decides which information is confidential. It is also unknown, whether such lists were created and whether they will be accessible to the public. And the practice of handing the informational requests shows that the refusals to render the information with references to the classification «for service use only» are very frequent.
Only one conclusion can be made on the basis of all above-said: the state officials want to take the decision what information should be protected by their own wish, and Law No. 2663 was created with the aim to endorse and protect this wish. Now a journalist, who obtains some information, cannot be sure that it is open and must, strictly speaking, get the permission for its publication from the corresponding organ of state power, which owns, uses or disposes this information. And that implies the introduction of censorship, which is prohibited by Article 15 of the Constitution of Ukraine. Such situation is inadmissible.
So, we are sure that the adopted Law will again, like in July 2003, become the object of destructive criticism of the Ukrainian and international community. We are asking you to use your constitutional authorities and to return Law No. 2663 to the Supreme Rada with the proposition to introduce the necessary changes.
The Kharkov group for human rights protection