Latest attack on freedom of expression
On 11 May 2004, the Verkhovna Rada of Ukraine passed the Law “On amendments to certain legislative acts of Ukraine” taking into regard the Presidents comments” (No. 2663). This law had previously been passed on 9 July 2003 however the President had used his power of veto. In fact, the State Deputies passed virtually the same law, the amendments concerning only the definition of confidential information which is the property of the State.
The amendments introduced to the Law on the Press significantly narrow the boundaries of the constitutional right to information (this in itself being a violation of Article 64 of the Constitution which prohibits any limitation on constitutional rights and liberties, aside from cases specifically allowed for by the Constitution). In particular: Part 1 of Article 2 «Freedom of the activity of the printed mass media», now declares “the right of every citizen to freely and independently look for, receive, locate, retain, use and disseminate any information which is open under the rules of access with the help of printed means of mass media». The main right of journalists to information is similarly narrowed: a journalist now has “the right to freely receive, use, circulate (publish) and retain that information which is open under the rules of access” (p.1 of Part 2 Article 26.
Thus, one may no longer receive, use, circulate or retain information which is on limited access, that is, according to Article 30 of the Law “On information”, confidential or secret information. In accordance with Article 30 of the Law “On Information”, secret information is that which presents ” a State secret or other secrets allowed for by legislation, the disclosure of which could be harmful to an individual, society or the State”. The definition of State secrets and the rules for access to information which is deemed a State secret are set out in the Law of Ukraine “On State secrets”. As for “the other secret information allowed for by legislation”, the situation is much less clear. The procedure for classifying information as secret in accordance with Article 30 of the Law “On information”, is determined by the appropriate bodies in compliance with the demands of the Law “On information”. Since Article 21 of this Law stipulates that the sources and procedure for receiving, using, circulating and retaining official information from State bodies at all levels shall be defined by the laws relating to these bodies, it would be entirely reasonable to except this to be reflected in the relevant laws. However, there is not one definition of other types of secret information held by State bodies in any of them.
In the second part of Article 30 a definition of confidential information is given. This is “information which is held, used or circulated by individuals or legal entities and is distributed in accordance with their wishes only to specified individuals.” Note that, although not directly stated, those in possession of confidential information can only be individuals or non-governmental legal entities, since, in accordance with Article 19 of the Constitution, “Bodies of state power and bodies of local self-government and their officials are obliged to act only on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and the laws of Ukraine”. Thus they cannot distribute information “in accordance with their wishes only to specified individuals.” It is impossible, therefore, to consider that part 2 of Article 30 provides a definition of “confidential information which is the property of the State”. This is surely what the President had in mind in his comment (p. 6): “Provide a definition of confidential information which is the property of the State”. In our opinion, the amended version of the Law has effectively disregarded this comment, and if the President is consistent, he will use his power of veto over this Law once again.
Indeed, this discrepancy is not resolved by the introduction into Law No. 2663 of parts 3 and 4 of Article 30. Part 3 states that with regard to information which is “the property of the State and is in use by State executive bodies and bodies of local self-government, businesses or organisations of any form of property, limited access in accordance with the law and confidential status may be assigned in order to preserve the information. It is devoid of all logic and absolutely baffling to offer limited access to information “in order to preserve the information”. It remains unclear which law this Article is in accordance with. As regards part 4, where the information which cannot be assigned such status is listed (this almost word for word repeating the list of information which cannot be considered a state secret), one can confidently predict that in a given case, these restrictions will not work. Instead state officials, and not the law, will decide whether to limit access to information for those reasons, or not. The ‘negative definition of confidential information which is the property of the State given in the Law could work if the creation of a “list of types of information which are confidential information which is the property of the State” had been allowed for as was the case with forms of information which are a state secret. It would then have been possible to avoid the said discrepancy where one and the same information is, according to the wishes of one department freely circulated, while another decides that it should be classified as secret.
However the law passed does not allow for any such list to be created. In accordance with part 2 of the still current Resolution No. 1813 of 27 November 1998 “On the Confirmation of Instructions regarding the appearance, storage and use of documents, files, publications and other physical sources of information, which contain confidential information which is the property of the State”, central and local executive bodies and bodies of local self-government were obliged to design and put into effect a list of types of confidential information which are the property of the State. This information is classified using the stamp OU (“For official use only”). Yet virtually every department can have its own such list. Who decides, and on the basis of which criteria, what information should be confidential is not defined in the Instructions. It is thus not known whether such lists have been created and unclear whether they will be made available to the public. In practice, requests for information have frequently been turned down on the grounds that the given information is classified as OU.
In the final analysis, only one conclusion can be drawn from such formulations, and that is that decisions as to which information should be protected are taken by state officials at their own discretion. Law No. 2663 is designed to strengthen and defend their discretionary powers. Now a journalist receiving any form of information can no longer be certain that the information is openly available, and should, strictly speaking, obtain permission to publish it from the appropriate state body, which holds the right of possession, use and disposal of the said information. This means the introduction of censorship, prohibited by Article 15 of the Ukrainian Constitution. The situation which has arisen is unacceptable.
The second package of amendments to legislation answers the old question with its own history: who has the right to organise wire tapping (by wire tapping is understood not only phone-tapping, but any forms of monitoring of communication). Amendments to laws, set out in Law No. 2663, strengthen the monopoly of the Secret Service (SSU) on secret wire tapping. Administrative liability is established, not only for violations of legislation regulating the design, development and sale of special technical devices for intercepting information from channels of communication, or other means of illicitly gaining information, but also for the unauthorised purchase or keeping of such special technical devices (Articles 195-5 of the Administrative Offences Code (OAC). The fine, moreover, is large: if anyone dares design, develop, sell, obtain or keep such devices, he or she risks a fine of between 50 and 100 minimum wages before tax. If an official dishonestly decides to illegally obtain or keep such devices, he or she could face a fine of between 200 and 500 minimum wages before tax. Administrative liability is also established for allowing illegal access to information from automated systems (Articles 212-4 of the AOC).
Law No. 2663 contains one other extremely important amendment to Article 11 of the Law “On the protection of information in automated systems”. The old wording was: “The requirements and regulations with regard to the protection of information, which is the property of the State, or information, the protection of which is guaranteed by the State, are established by a state body, authorised by the Cabinet of Ministers of Ukraine. These requirements and regulations are compulsory for owners of automated systems, where such information is processed, and are recommended for other owners of information”. The words “are recommended” have now been excluded. Does this therefore mean that non-governmental owners of automated systems (AS) are obliged to protect information in their AS according solely to principles and regulations established by the same SSU? In this way, SSU wants to control not only all operations in the State and private sectors, connected with intercepting information from channels of communication, but also the protection of information in all automated systems, State or private. This violates part three of Article 30 of the current Law “On information”, in accordance with which individuals, holding information obtained at their own expense, can independently determine the procedure and rules for access to it, including whether or not it be classified as confidential, and establish their own system (means) of protection! Moreover, such radical State monopolisation of protection of information in automated systems creates huge scope for abuse.
Law No. 2663 significantly broadens the powers of SSU. Jurisdiction for crimes foreseen by Article 359 of the Criminal Code of Ukraine has been changed (unlawful use of technical means of obtaining information): pre-trial investigations are transferred from the jurisdiction of the prosecutors office to that of SSU. Cases involving administrative infringements of legislation regarding State secrets or the provision of unlawful access to information in automated systems, the purchase or keeping of special technical devices for obtaining information from channels of communication, and other means for illicitly obtaining information are placed under the competence of SSU. Thus, SSU has obtained the right of administrative detention of individuals who have committed these administrative offences, the right to search people or things, to seize documents or things, which are a tool or direct object of these offences or other actions for administrative procedure foreseen by the law. Who then can become an offender? In the first instance, journalists whose professional duty it is to inform society.
The Law passed is therefore, in our view, unacceptable for a country which declares its commitment to democracy and protection of human rights.