CAMPAIGN AGAINST ILLEGALLY CLASSIFIED INFORMATION
For nearly ten years the Kharkiv Human Rights Protection Group (KHPG) has been trying to draw attention to the practice of limiting access to normative legal acts by illegally classifying them with the stamps “for official use only”, “Not to be published” and “Not to be printed”. We have recorded the appearance of acts with these stamps, carried out an analysis of legislation and have shown that this practice is illegal. We have presented information about the practice in numerous publications, and have, in particular, provided details about documents bearing such stamps when more information about their content emerged. In June 2002 we held public hearings on the theme of illegal classification of information, in cooperation with the Parliamentary Committee on Issues relating to freedom of speech and freedom of information. We drew up a draft Law on amendments and supplements to the Law of Ukraine “On information”, which particularly addressed this issue. However this practice has proved to be firmly entrenched and our activities have not had the desired result: the State apparatus has shown no desire to rid themselves of such stamps.
We hoped that after the Orange Revolution we would be able to achieve progress in this area. In the first days of 2005, I wrote an article “Plus the “dekuchmization” of the whole country” in which I put forward a program of actions for society and the State. Considering that the opening of access to documents with these illegal stamps would provide a significant impulse to change, I proposed that this “outing of information” become one of the first steps:
So what should «dekuchmization» entail?
Firstly, society must be given the opportunity to find out the truth about the crimes, the pillaging and the self-aggrandizement of the regime which is ending.
We must declassify and make public the countless decrees of the President, the Resolutions of the Government and other normative acts which, under the illegal stamp «For official use only» (OU), «Not to be printed», «Not to be published» conceal information about the corruption of high-ranking officials and those executive bodies which serve them, these being the State Administration of Affairs, the Constitutional Court, the High Council of Justice etc. The Kharkiv Human Rights Protection Group (hereafter KHRG) has been monitoring such acts through the computerized system «League:Law» and can confirm that sometimes in the space of a month as many as 10% of Presidential decrees have been classified as secret.
Review is urgently needed of the «List of items of information that constitute State secrets», which is unjustifiably broad, sometimes to the point of absurdity (with the number of employees of the Customs Service and the results of prosecutors office checks into complaints of human rights violations being classified State secrets), as well as of the actual procedure for making classifying information.
Yet within several days of Viktor Yushchenkos Inauguration Speech, two Presidential Decrees had been issued with the stamp “Not to be published”. It was at that point that KHPG decided to run a widespread public campaign against the illegal classification of information. We launched this campaign with an open letter to the President and invited people to add their signatures to it. The letter was sent on 31 January 2005. It read:
To the President of Ukraine
Your Honour, Viktor Andriyovych,
It has come to our attention that on 28 January, you signed two decrees No.116/2005 and No. 117/2005 with the stamp “Not to be published”. The use of this stamp is an infringement of Article 34 of the Constitution of Ukraine. I hope that such a regrettable misunderstanding arose as a result of the inertia of the old apparatus of the Presidential Administration. In our opinion, such decrees must either be on open access or must be revoked.
Restrictions to access to information must constitute an exception, not the rule. This is all the more so when dealing with normative legal acts. There must be sufficient grounds for any occasion on which State bodies limit access to information which they are in possession of: the publication of the information must be prejudicial to interests which require protection.
Article 34 of the Constitution of Ukraine states that “everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs. Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice. The Constitution provides an exhaustive list of grounds on which an individuals right to freely collect, store, use and disseminate information can be restricted “The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or supporting the authority and impartiality of justice”.
Thus, every specific case of refusal to provide information must comply with one of the above-listed public interests. State bodies do not have the right to impose any restrictions on the provision of information if such information cannot cause any harm to the interests foreseen by the Constitution of Ukraine.
In accordance with Article 34 these restrictions should be established by law. Yet the information which is protected by the State is not defined by Law, with the exception of information which constitutes a State secret. Therefore the classified stamps which State bodies generously distribute over various normative acts (Decrees and directives of the President, resolutions, instructions, orders of State executive bodies, etc) – «Not to be published», «For official use only», «Not to be printed» – are arbitrary and illegal. Only classifications of secrecy, that is «of particular importance», «top secret» and «secret», which represent established levels of secrecy in accordance with the Law «On State secrets», can be considered legal.
Moreover, even if documents are issued with the stamps: «Not to be published», «Not to be printed», «For official use only», etc, there must be appropriate procedure for designating and for removing (revoking) these stamps, and clearly defined grounds for such actions. Clearly, we also need regulations for organizing access to such documents. However, our search for such normative acts was to prove unsuccessful. It transpired that normative acts on the work with documents classified as «Not to be published» and «Not to be printed», officially registered by the Ministry of Justice, do not exist at all.
As regards procedure for working with documents stamped «For official use only» (OU), this was approved by the Cabinet of Ministers of Ukraine in Resolution № 1893 of 27 November 1998 «On the approval of Instructions for the procedure of accounting, storage and use of documents, cases, publications and other physical forms of information, containing confidential information which is the property of the State». According to Part 2 of Article 30, confidential information is «information which is owned by, used by or at the disposal of specific individuals or legal entities and is circulated at their wish on the conditions they stipulate». We would note that, although not stated directly, owners of confidential information may be only individuals or non-governmental legal entities, since, in accordance with Article 19 of the Constitution, «State executive bodies 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», that is, they cannot circulate information at their wish on the conditions they stipulate». Thus, one cannot consider that Part 2 of Article 30 gives a definition of «confidential information which is the property of the State».
Yet this very information is also designated the classified stamp OU, and one can be held criminally liable for publishing the information (Art 330 of the Criminal Code of Ukraine). So what is this information which is the property of the State and is designated as confidential? Here too this is not known since any lists of items of information where the stamp OU is applicable, which State executive bodies were supposed to compile in compliance with the above-mentioned Resolution № 1893 of 27 November 1998, if they ever were actually compiled, have not been made public. Thus, State executive bodies may not restrict access of individuals to information purely on the basis of the rights of the owner of information and distribute it at their own discretion, as is envisaged in Article 30 of the Law of Ukraine “On information”.
In our opinion, your predecessors used these illegal stamps restricting access to hide their corrupt actions, behind-the-scenes dealings and the unprecedented social perks kept for the higher echelons of the elite. Evidence of this can be seen, for example, in the Presidential Decrees exposed by Yulya Timoshenko at the end of 2002. These Decrees, No. 1180/2002 from 17 December 2002. “Provisions regarding the State Administration of Affairs” and №1213 from 24 December 2002. “On additional measures with regard to material provisions for employees of the High Council of Justice” were classified with the stamp “Not to be published”. The «National program for the development of energy policy up to 2010», adopted back in 1996 with no public discussion whatsoever, remains hidden under the stamp “OU” to this day. This is closed even to members of the council overseeing the affairs of the “Naftohaz Ukrainy” [The Oil and Gas Company of Ukraine]. The list of examples could go on and on.
Thus, this illegal practice of classifying documents with restrictive stamps must be stopped, and the numerous illegally classified normative legal acts disclosed and made public. We turn to you with the demand of citizens to put an end to the practice by the President, the Cabinet of Ministers of Ukraine, individual ministries and State committees, as well as other State executive bodies and bodies of local self-government of limiting access to information by using the stamps “Not to be published”, “Not to be printed” and “For official use only” (OU). We call on you to ensure that those normative legal acts (resolutions, directives, etc) which were previously classified in this way are made open and public. We are enclosing with this letter a list of such acts for the period 2000- 2004 which we were able to find using the computerized legal system “League:Law”. We would note that these may only be the tip of the iceberg since there are very probably normative legal acts with illegal stamps restricting access which were not presented for registration to the Ministry of Justice of Ukraine.
Bearing in mind the enormous social importance of this issue, we are sending this appeal in the form of an open letter (which is established practice as a form of interaction between human rights organization and State bodies). We call on all those organizations and individuals who share our concern to join us in this appeal.
Co-Chairperson of the Kharkiv Human Rights Protection Group, Chairperson of the Board of the Ukrainian Helsinki Human Rights Union, Member of the board of the Society “Memorial”.
An identical text was sent at the same time to the then acting Prime Minister, Yulya Timoshenko. Signatures for the letter to the President were collected through the website “Maidan”” (www.maidanua.org). In parallel, KHPG carried out a wide program of awareness raising activity with regard to freedom of information and restrictions on access to classified information. The campaign against illegal classification was one of the first projects of the “Maidan” Alliance, an association of civic activists and non-governmental human rights organizations, whose objective is to coordinate efforts directed at strengthening civic society in Ukraine and its influence on the development of the country. The campaign was joined by the All-Ukrainian civic organization “PORA” [“Its time”], the Ukrainian Helsinki Human Rights Union, as well as other human rights organizations. It was run under the banner “To be printed!”. On 15 February, the Secretary of State, Oleksandr Zinchenko, stated at a press-conference in answer to a journalists question that such practice of classification is necessary to protect State secrets, thus demonstrating a total lack of understanding of the issue. On 20 February, 11 Decrees from President Viktor Yushchenko were issued with the stamp “Not to be published”. We received no response from the Secretariat of the President. Instead of a written response from the Cabinet of Ministers, we received a call from there at the beginning of March which informed us that the question we had put in our appeal was extremely complex, and we were therefore advised to seek an answer to it from the Ministry of Justice of Ukraine. On 26 February we held a press conference in Kyiv in order to draw attention to this issue. An answer was, nonetheless, still not forthcoming. In this situation, our range of possible moves was not especially wide. We could either defend our right and the law itself through the courts, or give in and accept such violations of the law and disregard for civic rights. The first option was for us an extremely hard and sad option, given the possible respondent however the second was on principle fundamentally unacceptable. On 16 March we made yet another attempt to approach the President: a second letter with the relevant demands was sent, with the enclosed signatures of 580 individuals and 32 civic organizations collected during the period following the first letter.
The second letter is given below.
To the President of Ukraine
Your Honour, Viktor Andriyovych,
On 31 January I sent a letter appeal addressed to you calling for an end to be put to the practice of classifying normative legal acts. It was received in the Secretariat of the President on 3 February. From that time up to 16 March, 33 of your Decrees have been given the illegal stamp “Not to be published”, and have been in this fashion kept secret from the public. There was no answer to my letter which is a flagrant infringement of the Law of Ukraine “On Appeals” which establishes a time limit of one month for a response. During this period signatures were collected to this letter appeal through the website www.maidan.org.ua. The letter was signed by 28 civic associations, as well as 580 individuals concerned about the issue of openness of the regime – among them lawyers, journalists, scientists, businesspeople, students and others. The comments added by some of those who signed demonstrate that almost all of them were active participants in the election campaign during the Orange Revolution, and all of them voted for you, Viktor Andriyovych, - for our President. We consider that you have nothing to hide from us in your Decrees with the stamps “Not to be published”, which are being arbitrarily and illegally classified by some functionary in the Secretariat. I am therefore sending you this, by now, collective appeal again here.
We hope that your words regarding openness and transparency of power, which are being so shamelessly discredited by unprincipled functionaries, will demonstrate their worth: that the illegal practice of classification will be stopped and all normative legal acts with illegal stamps will be disclosed and made public. It is particularly important to make public such acts of the previous regime since, in our opinion, these acts were used to hide either perks, privileges and corrupt deals, or behind-the-scenes political bargaining.
Yours most sincerely,
Co-Chairperson of the Kharkiv Human Rights Protection Group, Chairperson of the Board of the Ukrainian Helsinki Human Rights Union, Member of the board of the Society “Memorial”.
On 26 March we held a second press conference in Kyiv. There had still been no response from the Secretariat of the President. By that time 36 Presidential Decrees had been issued with the stamp “Not to be published”, while the government had not used illegal stamps restricting access, which we stated at the press conference. In our press release we wrote: “We would stress that we have thus far been given no grounds for suspecting Viktor Yushchenko himself in being inclined to neglect the laws and we view a possible law suit in no way as an attack on the position of the President, whom we supported on Maidan and whom we are not rejecting now, but as a means of helping him to break through an entrenched practice which is against the Constitution and the rule of law, and which was bred by the Soviet system and Kuchmism, if the President for whatever reasons is not able to achieve this by himself. In the event that this second letter appeal does not receive the necessary reaction and the issue is not resolved, we will be left with no choice. We view a possible appeal to the court as a regrettable move forced upon us, yet necessary in order to defend the Law and the spirit of the Orange Revolution – if it prove to be only through this course of action that we can ensure the observance of the law by functionaries who, consciously or unknowingly discredit the new regime.”
In order to broaden as much as possible public awareness of the issue, we suggested that the chief editor of the program “Podviyny dokaz” [“Double proof”] of the television studio „1+1”, Vakhtang Kipiani, devote one of his programs to this issue. In my opinion, the team of “Podviyny dokaz” coped admirably with this task. The program was broadcast on 5 April and received quite a high rating. The guests in the studio were Mykola Poludyonny who only a week before the filming had begun working as adviser to the President on legal issues, and I. Having watched the program, I immediately wrote and made public the following commentary to it.
Following on ..
(commentary to the television program “Podviyny dokaz” shown on 5 April on 1+1)
Having watched the program yesterday focusing on the illegal practice of classifying Presidential Decrees, I feel it necessary to make some comments on it in the context of the context of the continuation of the campaign “To be printed!” run by the Alliance “Maidan”.
In the first instance I would like to sincerely thank all those who signed our letter to the President on the website of “Maidan”, and of course the presenters of the program, Vakhtang Kipiani and Anatoly Borcyuk, as well as Mykola Poludyonny. As far as I was concerned, the program made the issue very clear. Facts emerged that could only have been predicted – that these stamps are applied in accordance with internal instructions of the Administration of the President, introduced by a Decree signed by Kuchma which boasts the same stamp. This is an exact replica of the situation in the USSR when Instruction №0125, which defined which information was secret, was itself secret.
For those who are not aware of this: Mykola Mykolayovych Poludyonny is one of the best court lawyers in Ukraine, and has won many prominent cases. One can only respect his decision to change his free lawyers life for the job of adviser to the President on legal issues. This inspires hope that respect for human rights and the Rule of Law will begin, at long last, to at least some extent be implemented in State policy.
As for the crux of the matter, the plans for resolving it expressed by the regime can be outlined as followed. State Executive bodies are to refrain from using the illegal stamps restricting access “Not to be published” and “Not to be printed”, and will apply only the stamp “For official use only” (OU). Moreover a promise has effectively been given that all normative acts which presently hold illegal stamps restricting access will be reviewed, and either disclosed, or transferred to the category of confidential information which is in the possession of the State and given the stamp “OU”. In order to achieve this, Mykola Poludyonny informed us, lists of such confidential information will be drawn up. In principle, it would be difficult to object to the use of the categorization of confidential information which the State is entitled to limit access to. The stamp “Confidential” exists in many countries, and is used by the Council of Europe and the European Union. For example, the Reports of the European Committee
for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) following their periodic visits to Ukraine in 1998, 1999 and 2000 were classified as confidential and not made public until our government gave its consent for their publication which was only on 10 October 2002.
However, the problem is that the definition of confidential information which is provided in Article 30 of the Law “On information” excludes on principle the use of the term in this way: the State may not have such information in its possession…
Thus, in order to implement the idea expressed by Mykola Poludyonny, it would be necessary to change the Law “On information”, and provide a definition of “confidential information which is the property of the State” and which the State has the right to classify in this way; to totally revise instructions about regulations for work with documents which contain confidential information, to make a list of items of information or materials that can be classified in such a way. In fact it would be better to use another name for such information, for example, to mention such a concept as “official secret”.
One can expect that in connection with this plan, the disclosure and publication of normative legal acts with illegal stamps will be drawn out and all will take place much as Borsyuk predicts: over a “reasonable” period we will simply not see what exactly is hiding behind the stamps.
In connection with this it is worth mentioning one international standard of freedom of information: if part of a document contains openly available information, and a part is secret, then the open part of the document should be given to anybody who asks for it. Therefore, in my opinion, we must demand that illegally classified normative legal acts with the stamps “Not to be printed” and “Not to be published” are disclosed and made public.
There are also other directions of the campaign which need to be developed. I partially touched on these during the program, however not all these areas concerned the main theme and were therefore “erased”. I am thinking here of the particular role of normative legal acts of the Prosecutor General which are not registered in the Ministry of Justice, meaning that the public is entirely unaware of their existence. Meanwhile, some of these acts are absolutely appalling. Another theme concerns State secrets: the realm of information which has ended up as classified is, in my opinion, unjustifiably broad and the stamp “secret” is used in totally farcical cases. One could site the example of the secret classification of topographical maps and plans on a scale of 1:50000 or other large scales. And there are very many such Soviet relics in the “List of items of information which constitute a State secret”
It is therefore necessary to think about how the campaign “To be printed!” should be developed further. It is quite clear that the end to it is still a long way off.
A day later a response finally arrived from the Secretariat of the President to the first letter appeal, then on 15 April a letter from the Ministry of Justice. The letters are, in my view, interesting, and are therefore cited in full.
The Secretary of State of Ukraine
“04” 04 2005 р. №02-02/576
To the Co-Chairperson of the Kharkiv Human Rights Protection Group
Dear Yevhen Yukhimovych,
At the request of the President of Ukraine, we would inform you that your letter regarding the implementation of the right of citizens to information has been considered.
As is well-known, the President of Ukraine, Viktor Yushchenko has on many occasions placed emphasis on the need to affirm the principles of openness, glasnost and transparency in the activity of the President of Ukraine and of State executive bodies. It is precisely on such principles, in the opinion of the Head of State, that relations between those in power and citizens must be based.
The inculcation of such an approach into the activity of the Head of State and of State executive bodies is one of the guarantees safeguarding the enjoyment by citizens of their constitutional rights to take part in the running of State affairs, and also to freely collect, keep use, and disseminate information verbally, in writing or in any other way of his or her own choice. At the same time one should keep in mind that, in accordance with Article 34 of the Constitution of Ukraine 34 the exercise by citizens of the right to information may be restricted by law in the interests of national security, territorial indivisibility or public order..
Taking into consideration the above-mentioned constitutional norm, as well as Article 57 of the Main Law, according to which it is obligatory to bring laws and other normative legal acts that determine the rights and duties of citizens to the notice of the population, a Presidential Decree from 10 June 1997 №503 stipulated the procedure for official publication of normative legal acts and their gaining legal force. It was at the same time envisaged that acts of the Verkovna Rada of Ukraine and of the Cabinet of Ministers of Ukraine which did not have general significance or normative nature, might not be published at the decision of the particular body. These acts and acts with stamps limiting access are officially made public by sending them to the relevant State bodies or by the bodies of local self-government and their notification of businesses, institutions, organizations and individuals on whom the act has legal force (Article 7).
The Presidential Decrees from 28 January 2005 № 116 and №117, which you talk about in your letter, do not in any way determine the rights and duties of citizens and are not normative legal acts, that is, they do not have the features which, in accordance with the Constitution of the Ukraine, would mean that they must be brought to the notice of the population. These Decrees also lack general significance, and are acts of an individual nature, relating to the appointments or dismissals from their posts of heads of regional bodies of the Security Service of Ukraine. Under these conditions, the process of making the above-mentioned Decrees public was through bringing them to the notice of the relevant institutions, organizations and individuals on whom the act has legal force.
We would at the same time inform you that the President of Ukraine, in order to perfect normative legal safeguards of transparency and openness as regards the activities of the Head of State, State executive bodies and bodies of local self-administration, and to prevent the unjustified restriction of the exercise of the right of citizens to access to information, has instructed the Cabinet of Ministers of Ukraine to prepare, taking into consideration the provisions of international legal acts and world experience, proposals as to how to improve legislation regulating relations in the area of information.
Furthermore, at the instructions of the Head of State, Instructions in the Secretariat of the President of Ukraine have been changed which artificially and unjustifiably restricted citizens access to information.
The Ministry of Justice of Ukraine
Ukraine, 01001, Kyiv,
Horodetsky Street,, 13 Kharkiv Human Rights Protection Group
Tel.: (38 044) 299 66 64 61002, Kharkiv, Ivanova Street, 27, flat 4
Fax: (38 044) 229 56 31
08.04.2005/ № 22-9-2127
Re: №4732/1/1-05 from 11.03.2005.
The Ministry of Justice of Ukraine, following instructions from the Cabinet of Ministers of Ukraine from 11 March 2005 № 4732/1/1-05, has considered the letter from the Kharkiv Human Rights Protection Group from 31 January №06/05 regarding the use of stamps restricting access and informs of the following.
In accordance with Part 3 of Article 30 of the Law of Ukraine “On information” 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 with any form of property, limited access in accordance with the law and confidential status may be assigned in order to preserve the information.
The procedure for registering, retaining and using documents and other sources of information which contain the above-mentioned information, is defined by the Cabinet of Ministers of Ukraine.
In accordance with Point 5 of the Instructions on the procedure for registering, retaining and using documents, cases, editions and other material sources of information which contain confidential information which is the property of the State, passed by the Resolution of the Cabinet of Ministers of Ukraine from 27 November 1998 №1893, replicated documents issued with the stamp “For official use only” before 1991, and also replicated documents issued at various times with other stamps restricting access, with the exception of the stamps “official secret”, “secret” “top secret” and “of particular importance”, may be considered as documents of open access, provided there is written agreement from the organization which organized them or the legal representatives of these organizations.
With regard to the impossibility of restrictions by State executive bodies of access of individuals to information purely on the basis of the rights of the owner of the information, we would inform that, in accordance with Part Seven of Article 38 of the Law of Ukraine “On information”, information created using State revenue is State property. According to Parts Two and Three of the same Article, information may be the property of citizens, organizations (legal entities) and of the State. Information may be property in full degree, or only with entitlement to holding, using and disposal of it. The owner of the information has the right to carry out any legal actions with regard to his or her property.
We would also inform that Part Eleven of Article 30 of the same Law establishes that information with restricted access may be made more available without the consent of the owner if this information is of social significance, that is, if it is a subject of public interest and if the right of the public to know this information prevails over the rights of the owner to protect the said information.
In accordance with Part Three of Article 471 of this Law the court should determine which information is socially significant.
Furthermore, we would note that, in compliance with the Presidential Decree “On a Single State Register of Normative Acts” from 27 June 1996 №468, the Ministry of Justice of Ukraine maintains a Single State Register of normative legal acts. The State Register records current, published or unpublished normative legal acts, including those with stamps restricting access. Normative legal acts of Ukraine which contain information constituting a State secret are recorded in a separate section of the State Register with the relevant stamp of secrecy.
The official publication of normative legal acts is undertaken by the Ministry of Justice of Ukraine in its official printed publication “Ofitsiyny visnyk Ukrainy” [“Official Ukrainian Herald”] after being recorded in the Single State Register of normative legal acts and after their gaining legal force. Normative legal acts which have a stamp limiting access and which are recorded in a separate section of the State Register of normative legal acts are not published in “Ofitsiyny visnyk Ukrainy”. Acts with stamps limiting access are officially made public through their being sent to the relevant State bodies and bodies of local self-administration and through their being brought to the notice of the businesses, institutions, organizations and individuals on whom the acts have legal force.
We would at the same time notify that the Ministry of Justice of Ukraine has no information concerning the removal of stamps limiting access from the Decrees of the President of Ukraine from 17 December 2002 №1180 and from 24 December 2002 №1213.
Deputy Minister [signature] I. I. Yemelyanova
So, our campaign can boast its first positive results. The Secretariat has stopped using the stamp “Not to be published, and the President has instructed the Ministry of Justice to prepare two draft laws: on access to information and on openness as regards information of the regime. At the same time one could note that we received an almost identical response to our letters several years ago from the Presidential Administration, except perhaps that those didnt have the last paragraph cited above and did not disclose the content of the documents with restricted access. We would note firstly that the classification restricting information about staff appointments to the positions of regional heads of the Security Service of Ukraine (SSU) demonstrates a total lack of understanding as to which information may and may not be made secret. Secondly, there is no mention of any removal of illegal stamps from normative legal acts adopted under Kuchma. In the letter from the Ministry of Justice one notes the justification given for restricting access to normative legal acts being that they are the property of the State. “The owner of the information has the right to carry out any legal actions with regard to his or her property”. With regard to this, one of my colleagues dryly suggested: “In that case why not organize an auction, I wouldnt mind picking myself up a couple of Kuchmas Decrees with the stamp “Not to be published”. Nothing is said in this letter about the lack of any definition of these stamps in law however there is the amusing mention of the fact that the stamps have not yet been removed from the decrees of 17 and 24 December 2002. We have already printed them on many occasions.
In April it became clear that we had hit the mark when we suggested that these illegal stamps were instruments for corruption. The Head of the State Property Fund, Valentin Semenyuk, stated at a press-conference (and this was broadcast on television), that Ihor Bakai had, via the State Department of Affairs, sold into private property land and buildings not allowed to be privatised, in particular, the Kyiv hotel “Dnipro”, ten sanatoriums with valuable mineral springs, with all the necessary rulings being made under precisely such illegal stamps restricting access. As “Ukraina moloda” [“Young Ukraine”] informed on 16 April, a Decree of President Kuchma from 3 February 2004 (and this decree bears the stamp “Not to be published”) gave the State Department of Affairs the right to expropriate property passed to them, as well as several other economic powers, which in fact belong to the competence of the Cabinet of Ministers or the State Property Fund. In this respect, there have even been rumours that VAT may have been refunded to fictitious firms via acts with such stamps, however no real evidence confirming these rumours has yet been provided . Thus the need to disclose the content of normative legal acts with legal stamps restricting access has become even more obvious.
The participants in the campaign discussed ways in which it should move futher and decided to move to a second stage: sending formal requests for information to the President demanding to be provided with the names, numbers and dates of decrees signed by him which bear the stamps “For official use only” or “Not to be published”, as well as the same information and the names of decrees issued by President Leonid Kuchma in order to decide whether to make a formal request for access to specific decrees from this list. We hoped to receive a positive response, and if such was not forthcoming, to file a suit in court on the basis of Chapter 31A of the Civil Procedure Code complaining about the illegal actions in the event that a refusal to provide the information was received (or about omissions in the event that no response was received within the legally stipulated monthly period). Such formal appeals for information were sent by several participants in the campaign.
On 26 April the participants of the Alliance of Civic Activists “Maidan”, as well as the All-Ukrainian Civic Organization “PORA”, organized a public action on Bankova Street near the Secretariat of the President. A banner was stretched across the street with the sign “The First step to Kuchmism – classifying Presidential Decrees”. In front a huge dummy Decree “Not to be printed” was erected, and also signs “Food not to be eaten”, “Newspapers not to be read and “Condoms not to be used”. After this the activists proceeded to use the items in ways not intended by analogy with “decrees not to be printed”. They used the newspapers to make balls which they then began to play volleyball with; the condoms were pierced and then handed out, with leaflets, to civil servants walking along Bankova Street. While the ketchup, mayonnaise and mustard were used to paint the two-metre high fence which the new regime had erected to at any cost cordon off the pathway to the residence of the President.
More details about this action can be found at http://maidan.org.ua/static/news/1114605012.html.
On 28-29 April a big conference on legal reform, organized by the Parliamentary Committee of issues of legal policy, was held. Participants in the campaign “To be printed!” took part in the section on “Access to information” and prepared recommendations to State executive bodies in which they included all the demands of the campaing (the text with the recommendations is given below)
Unfortunately at the end of the month the participants in the campaign had still received no reply to their letters to the President requesting information from the Secretariat of the President. We were therefore forced to begin the third stage of the campaign – complaints to the court about the inaction of the President. We will keep readers of ‘Freedom of Expression and Privacy informed of the subsequent events of the campaign “To be printed!” as they unfold.
Recommendations of the working group on issues related to access to information of the parliamentary hearings organized by the Committee on issues of legal policy.
To the Verkhovna Rada of Ukraine
The possibility should be considered of introducing amendments to the Civil Procedure Code, the Criminal Procedure Code and the Economic Procedure Code, foreseeing the possibility of allowing access to court decisions not only of the parties in a case, but of any interested individual;
Protection of commercial secrets in economic or civil proceedings needs to be ensured by means of making the appropriate appeal during the review of the case;
Procedure should be regulated in the law for providing a defence lawyer with access to State secrets in a case where the person defended is facing a criminal charge;
The norms of Article 15 of the Law of Ukraine “On State secrets” should be revised in order to allow for the classifying as secret only texts which contain State secrets, and not the documents in full;
The Human Rights Ombudsperson should have supervisory functions over the observance of the rights of the individual to access to information in order to prevent illegal concealment of information;
Compliance with the decisions of the Human Rights Ombudsperson with regard to the declassification of information should be mandatory;
The conclusions of committees of the Verkhovna Rada of Ukraine on draft laws should be published on the website of the Verkhovna Rada;
Information about the activity of all committees of the Verkhovna Rada of Ukraine should be available on the website of the Verkhovna Rada;
Conclusions about draft laws which were officially sent for international expert analysis should be made public;
The possibility should be considered of introducing amendments to the Law of Ukraine “ON the Human Rights Ombudsperson”.
To the Chamber of Accounting of Ukraine:
Information about the findings of checks which it has carried out should be placed on its website promptly. Information should be available about the reaction of the State executive bodies to the published reports.
To the Human Rights Ombudsperson:
An electronic form should be placed on the website for citizens to make appeals; information should be constantly placed on the site about the reaction of the Human Rights Ombudsperson to appeals;
To the Cabinet of Ministers of Ukraine:
A new draft version of the Law of Ukraine “On information” should be drawn up and introduced to the Verkhovna Rada for consideration. It should in particular:
Foresee the publication of all court rulings in Ukraine through the creation of a single State data base with open access through the Internet using a search system;
Restrict the making public of only the specific part of a ruling which contains information that, on grounds stipulated by law, is considered at a closed court hearing;
Foresee possible restrictions in the interests of protecting the privacy of parties to court proceedings;
Set out a separate type of information with restricted access – an “official secret” (instead of “confidential information which is the property of the State”), which can cover the stamp “OU”, and create a register on open access of all such documents.;
Impose a direct prohibition on using stamps restricting access not foreseen by the law;
To regulate all issues connected with the use of the given stamp restricting access in a draft Law “On official secrets”;
Set a deadline for reviewing all information material which contains an official secret;
Draw up a full list of such items of information (besides drafts of decisions) which should be openly available to the public. At the end of this deadline to consider all information which has not been included in the list of items of information which contain an official secret to be openly available;
Envisage the creation of State registers of all documents on open access which are held by State executive bodies and bodies of local self-administration;
Define the range of information which is provided by State executive bodies free of charge and that for which payment may be stipulated from the person making the request for information or a refund of costs for the copying of material;
The State Tax Administration should ensure that all official explanations are made public;
International experience should be analysed, in particular, that of member States of the EU and Council of Europe as to the safeguarding of the publics right to information;
Carry out educational programs for State civil servants on the Provisions of the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters;
Carry out educational measures for employees of press offices and public relations departments concerning the proper implementation of the rights of citizens to access to information and prompt provision of high-quality information services.
To the State Court Administration:
A Single State data base of court rulings on open access via the Internet should be created.;
Letters with explanations of the Supreme Court of Ukraine and the High Commercial Court of Ukraine, legal positions of the Supreme Court of Ukraine should be published including through placing them on the Internet website;
Within the State program for computerizing the courts, ways need to be established of improving court management with automated assignment of cases for consideration, the creation of websites of Ukrainian courts with information about cases assigned for court review..
To the Constitutional Court of Ukraine:
Not only rulings, but also decisions on procedure and on not allowing appeals must be placed on the website promptly.
To the President of Ukraine
Stamps restricting access, “Not to be printed”, “Not to be published” and others, not allowed for by law, should be removed from all normative acts and decisions.;
The Decree of the President of Ukraine №493 from 21.05.1998 “On introducing amendments to some decrees of the President of Ukraine on issues relating to the State registration of normative legal acts” should be revoked.
To the Prosecutor General of Ukraine:
All normative legal acts of the Prosecutors office should be registered in the Ministry of Justice of Ukraine;
An open register of all normative acts of the Prosecutors office, as well as an open database of normative acts relating to civil rights and duties should be created.
Local Authorities and bodies of self-government
Conditions should be created for bringing to the notice of members of the community of the particular area all rulings of bodies of local self-government (depending on conditions in the most effective way);
Where this is feasible, websites of bodies of local self-government should be created and it to be compulsory to place a full register and the texts of all rulings passed;
Publication and access on an open basis should be ensured to all decisions of local administrations (at the level of regions and the cities of Kyiv and Sevastopol.