What kind of information is deemed a state secret in Ukraine?

In order to defend its national security and various other state interests, every country classifies certain information as state secret.

In Ukraine social relations connected with the definition of information as state secret, the processes of classification and declassification are regulated by the Law of Ukraine “On State secrets”, adopted in January 1994. This law was a significant move away from total secrecy as regards information under the USSR towards regulation of the issue of secrecy in a manner appropriate for a democratic country.

Article 1 of the Law “On State secrets” provides a definition of a state secret as a form of secret information in the area of defence, the economy, science and technology, foreign relations, state security and protection of law and order, the divulgence of which could jeopardize Ukraine’s national security, and which for that reason are subject to state protection. The degree of secrecy of the information is determined by the potential damage caused by its disclosure, and introduces different restrictions in relation to the degree of secrecy.

The criteria for determining the degree of secrecy was initially placed under the responsibility of the State Committee of Ukraine on State Secrets and the Technological Protection of Information. This Committee was vested with special powers as the central executive body engaged in ensuring the protection of state secrets. However at the beginning of 1999 the Committee was dissolved and its powers were transferred to the Security Service of Ukraine (SSU).

Article 8 of the above-mentioned Law lists information in various areas of state activity which can be classified as state secrets. The presence of such an article is undoubtedly a significant positive aspect of the Law. However such details in the area of defence as the number of soldiers in the Ukrainian Armed Forces, the State Border Guard Service of Ukraine, the National Guard of Ukraine arouse serious doubts (one would note that according to Point 22 of Article 85 of the Constitution confirming the numerical strength of all military formations falls within the competence of the Verkhovna Rada of Ukraine, that is, it should be determined by laws – open and public normative legal acts, and may not therefore be secret information).  Similar reservations are elicited by details as regards the economy of the financing of defence orders, in the field of state security and maintenance of law and order – the financing of intelligence, counter-intelligence and investigative operations.

It should also be noted that Article 8 of the Law prohibits the classification as secret of any information if by this the content and range of constitutional human rights and civil liberties will be limited, or the health or safety of the population will be harmed. Information may not be classified about the state of the environment; about the quality of food products and everyday goods; about accidents, catastrophes, dangerous natural phenomena and other extraordinary events which have occurred or may occur and which threaten people’s safety; about the state of health of the population, their standard of living, including nourishment, clothes, housing, medical service and social security, and also socio-demographic indicators, the situation as regards law and order, education and culture of the population, about cases where human and civil rights and liberties have been violated; about illegal actions carried out by state executive bodies and bodies of local self-government, and their officials, nor any other information which in accordance with laws and international agreements to which Ukraine is a signatory may not be made secret.  However this does not mean that the information in these cases is unconditionally on open access, since the force of this Law extends only to state secrets, and does not cover other types of restrictions in the area of information.

Article 9 of the Law stipulates that classifying information as a state secret is carried out on the basis of a motivated decision from one of the state experts on classified information.  The state expert in the Verkhovna Rada is the Speaker of the Verkhovna Rada, while in other state executive bodies they are other State officials who have been vested with these functions in the relevant areas of State activity by the President of Ukraine on the petition of the head of the appropriate body. Article 9 contains a wide range of powers, rights and duties of State experts. In particular, a State expert defines the grounds on which information is to be classified as a State secret; provides an opinion with regard to the potential harm caused to Ukraine’s national security in the case of the disclosure of specific secret information; determines the degree of secrecy of the information (“of particular importance”, “top secret” and “secret”), the period of secrecy (30, 10 and 5 years, respectively, as stipulated in Article 13); passes his or her conclusions to the Security Service of Ukraine in order to have the information which has been classified as secret added to the List of items of information which constitute a State secret (hereafter the LIISS), which constitutes an “act which provides a list of items of information which constitute a State secret”. This act is formed, approved and published by the Security Service of Ukraine. After the publication of LIISS adherence to the requirement to protect the State secret in accordance with this list becomes mandatory.

Amendments to the Law “On State secrets” which were adopted by the Verkhovna Rada of Ukraine in September 1999 significantly extended the range of information which could be made secret. In addition to information in the areas of defence, the economy, foreign relations, State security and maintenance of law and order which could be classified as a State secret, information was also added in the field of science and technology, specifically information “about scientific, scientific research, research-construction and planning works on the basis of which it would be possible to develop advanced technologies, new forms of production, output and technological processes which have important defence or economic significance, or which have substantial impact on the foreign economic activity or national security of Ukraine (Article 8).  In our opinion, this is a fundamental error of the authors of the new version of the Law since secrecy in the field of science and new technologies serves only to guarantee backwardness in the future and leads to specialists emigrating. In the realm of State security and law and order, new items have appeared which may be classed as state secrets, these including information “about the personnel of State bodies carrying out investigative operations”; «about the implementation of rules of secrecy in state executive bodies and bodies of local self-government, in enterprises, institutions and organizations, state programs, plans and other measures in the area of protecting state secrets»; «about the organization, content, state and plans for development of the technical protection of secret information», and «about the results of inspections carried out in accordance with the law by the Prosecutor within the framework of appropriate surveillance over adherence to the law, and about the content of documents of detective inquiry units, criminal investigation and court procedures concerning the spheres mentioned in this article».

The latter is entirely incomprehensible. Classifying as secret the Prosecutor’s surveillance over compliance with the law is, in our view, inadmissible, especially given that the range of information which can be classified as a State secret in the above-mentioned fields of activity is extremely wide. On the whole one is forced to acknowledge that these amendments have merely consolidated the trend which began back in the mid 1990s towards even greater secrecy.

The amendments in 1999 to the Law “On State secrets” did not touch on the procedure for formulating and making public the “List of items of information which constitute a State secret”.  According to Article 12 of the Law (Article 10 in the new version) amendments and additions to LIISS must be published in official publications not later than three months from the day when the appropriate decision is taken by the State Expert on classified information.  LIISS was first printed only a year and a half after the adoption of the Law, on 18 August 1995 in “Uryadovy kuryer”  [“Government Messenger”], and reprinted several times in various publications. However even the first amendments to LIISS, introduced by Orders of the State Committee on State Secrets  № 2 from 29.9.95, № 3 from 12.12.95, № 1 from 16.01.96 and № 2 from 6.02.96 were not published: the first two carry the stamp “secret”, while the latter two are classified “for official use only”, this being a direct violation of the Law. Then later the LIISS itself was assigned the stamp “secret” and was removed from all computer legal systems. In the system of the information and analysis centre “Liga-Zakon” [“League-Law”] it was removed even from the relevant issue of  “Uryadovy kuryer”.  Such classification as secret was a flagrant violation of Ukrainian legislation and the norms of the law. Yet it was only after the persistent demands of the Kharkiv Human Rights Protection Group that the LIISS was declassified by Order of the Head of the SSU from 1 September 2001 and a new LIISS approved, in each Article of which, in addition to a list of the items of information which are considered to be State secrets, there is also information regarding the degree of secrecy, the period during which the information shall be classified, and the registration number and date of the decision made by a state expert on classified information.

The latest and current List of Items of Information which constitute a State Secret was approved by SSU Order № 440 on 12.08.2005 and registered by the Ministry of Justice of Ukraine as № 902/11182 from 17.08.2005.

This document differs from its predecessor in that it includes definitions of auxiliary words and terms, and in each Article the institution is also named whose state experts have designated any given item of information as a state secret. This is undoubtedly a positive feature of the new version of the LIISS.

It should be mentioned that the new LIISS contains almost 50 more articles however there is not so very much new information which is now classified as state secrets. Some of the articles have been given in more detail and reformulated, thus increasing the number of articles. Among entirely new items added to the LIISS, it is worth noting information about specific indicators of the influence of meteorological conditions on the activities of the Armed Forces, their tactics  (Article. 1.2.5), the organization of covert management of armed forces (Article 1.5.5),  plans for field hunter contact (ст. 1.7.3), about the long-term prognoses and assessments of central executive bodies concerning the prospects for the strategic development of two-sided (many-sided) cooperation on issues of Ukraine’s foreign political activities (ст. 3.1.5), about statistical indicators on investigative operations and counter-intelligence activity which make it possible to make an estimate on the numbers of operational forces and means which are used for carrying out this activity (Article  4.4.8), about the moral and psychological state within the armed forces (1.2.1, 1.2.2, 4.6.4) and the psychogenic losses (1.2.3), about the guarding and defence of Ukraine’s diplomatic representations abroad (4.7.4, 4.7.5).

A more detailed analysis of the LIISS raises questions as to the expediency of certain formulations, as well as the legitimacy of classifying certain information as secret.

The first question relates to the definition “component indicators” (Point 6, the general provisions) – “for the perception of a single instance of the term used in the texts of articles of the LIISS in a wider sense than is outlined in the article”.  That is, reserving the right to expand the boundaries of the restricted information at their own discretion. One could, for example, in this fashion according to Article  1.1.9 effectively classify any activity of the authorities or of the armed forces aimed at the “carrying out of tasks in peacetime”., including, say, using the armed forces for other than intended purposes.

It is not clear what constitutes the component indicators in Articles 1.1.1, 1.1.2, 1.1.7, and still less what is involved in the indicators which are inseparable component features. In this case, therefore, the possibilities for secrecy are simply being extended.

In accordance with Point 22 of Article 85 of the Constitution of Ukraine the definition of the structure, functions, and numerical strength as a whole of the Security Service of Ukraine, the Armed Forces of Ukraine and other military formations, as well as those of the Ministry of Internal Affairs, is approved by the Verkhovna Rada and may not therefore be classified as secret.

For this reason the information in Article 1.1.6 of the LIISS needs to be removed from the list of state secrets. The same applies to Article  4.1.11 which classifies as secret the staff numbers, including those in total for the SSU and the Department of the National Guard[1].  Yet why should these facts be secret?  Perhaps in order to keep the cost of maintaining these services and the scope of their activities secret?

How can the cost of providing weapons (Article 1.4.7) for the Armed forces, the State Tax Service and the Ministry of Internal Affairs constitute a state secret?  After all Article 4, Part 5 of the Law of Ukraine “On democratic civilian control over military organization and state law enforcement bodies”  allow for civilian monitoring to be carried out on the basis of “transparency of expenditure on national security and defence”.

It is thoroughly inexplicable why and in what way the LIISS deems the supplies of materials and medical items as a whole to the Armed Forces (Article 1.4.8), when the numerical strength of the forces as a whole are not a secret.

Articles 1.11.5, 1.11.7 і 1.11.8 which relate to topographical information would seem somewhat out of date given the fact that satellites from space give any hypothetical opponent the opportunity to create extremely accurate and high-quality maps.

It is unclear why it is necessary to classify “information about medical (transport, telecommunications, communal and everyday, repair) service” under Article  2.1.12, even if the scope of these services is open. It is similarly impossible to understand by information about stocks of donor blood in local administrations and the Autonomous Republic of the Crimea (Article  2.1.19)  are deemed state secrets, although this information about Ukraine as a whole is not classified.

One is also in the dark as to how to get around widely-known telecommunications structures, such as television towers which probably constitute mobilization capacity, the location of which is considered to constitute a state secret (Article  2.2.5), regardless of the fact that they are known to all.

Article 3.1.5 prohibits in essence any analytical prognoses and assessments of the activity of Ukraine in the international arena since this could in one way or another have an influence on potential cooperation. If the Article is applied in its present form, then Ukraine will again become a closed state with unclear aims for its foreign contacts and cooperation.

It remains baffling as to how the extent of revenue from the export of weapons could present a danger to Ukraine’s national interests and security (Articles  3.2.4, 3.2.5). It should be noted that these issues are very vigorously discussed in the mass media, including on television, with the participation of the manufacturers of the weapons, scientists and representatives of the authorities.

Article 4.2.7, on the application of all departments – intelligence, the Security Service of Ukraine, the National Guard, the border guard service, the tax service, designates as state secret “the number of premises which, on a confidential basis, are used, prepared for use or were previously used” to undertake tasks of operative activity. One wonders how this statistical figure could have a negative impact on the results of investigative operations however its classification as secret gives wide scope for machinations and corruption in the property sphere in each of the above-mentioned services.

In the same way the classification of statistical information about investigative and intelligence operations in particular directions (Article  4.4.8) allows extremely broad scope for violations of human rights without any responsibility for their actions. The article, it is true, does relate to the kind of information which makes it possible to estimate the numbers of operational forces and means which were used to carry out the particular activity.  However this cannot stop the classification of such data as, for example, the number of warrants issued for interception of information from channels of communication (telephones, mobile telephones, electronic mail, the Internet, etc), the duration of these investigative operations and their results (how many of the activities led to a court consideration of the case for the investigation of which such tapping was used.  It is on the other hand possible to use the tapping for any purpose at the discretion of the secret services, as has been noted more than once by high-ranking state officials, politicians, journalists, etc.

Article 4.4.12 classifies the technical description of specific means or channels of communication used by intelligence bodies. However if this concerns usual channels or means of communication, and not special communication systems, then it is possible to not know that a specific channel or means is being used by intelligence (there are in fact no lists) while their description is deemed a state secret.

The classification under Articles 4.5.1, 4.5.2 of information about the financing of supplies of special and military technology to enforcement bodies is also incomprehensible. This simply makes it possible to conceal expenditure and use it for other than intended purposes. 

It is unclear what kind of information is referred to in Articles 4.11.16 and 4.12.1, which can cause the classification by state experts of material from court cases and detective inquiry work.  If the disclosure of this information “can harm national interests and security”, then this information should be made a state secret and its classification in this case is discussed in Articles 4.12.2 and 4.12.3.  If not, however, then the material should be openly available. One has the impression that all enforcement bodies have introduced Articles 4.11.16 and  4.12.1 into the LIISS so as to enable them at their own discretions and in their own interests to make secret effectively any material from the detective inquiry stage or court cases.

Almost all of the flaws listed here were also inherent in the previous LIISS. 

One should, to be fair, mention that some articles of the previous LIISS which had aroused criticism have  been removed (for example, about the prospects for cooperation between the SSU and security services of other countries, about the description of routes leading to large railway junctions, stations, etc), while some, for example, that regarding the death penalty have been formulated more correctly.

However the unrestrained will to classify as much information as they can, especially about the activities of enforcement bodies, has led to information being classified as state secret which according to the laws of Ukraine are not secret or even which are not allowed to be classified as secret.  For example, in three articles (4.9.11, 4.9.13, 4.9.14), relating to government or special contacts, there is “confidential information which is the property of the state” and which is assigned the stamp “secret”.  This, however, is a violation of Part 4 of Article 15 of the Law of Ukraine “On state secrets” which prohibits the allocation of the secret information stamps envisaged by the law to carriers of confidential information, while according to Article 30 of the Law of Ukraine “On information”,  the procedure for their registration, storage and use is determined by the Resolution of the Cabinet of Ministers of Ukraine №1893 from 27.11.98, with additions from 2001, 2002 and 2004.  These provisions should therefore be removed from the LIISS as unlawful.

Other articles which should be taken out include those referring to the “moral and psychological state of personnel”. In our opinion, making this information secret is the height of unscrupulousness and folly. A definition for the very term “moral and psychological state” or information about it are not provided by the LIISS – in Articles 1.2.1 and 4.6.4 there is simply reference to the classification as secret of information about the moral and psychological state among the military (the Armed Forced and the State Tax Service) which make it possible to establish the combat readiness of military troops. Simply from general considerations it is clear that moral and psychological state is determined not only by combat readiness (which the experts have concerned themselves with separately), but first and foremost by the relations between officers or ensigns and the soldiers, between the soldiers themselves, that is, the so-called regulated (or not regulated) relations, the everyday conditions and medical service, the possibilities for social contact and visits to the unit by relatives or friends of the soldiers, representatives of civic organizations, etc. In this way, information about “didivshchyna” [bullying or worse of conscripts by officers and other senior staff], the quality of food, the use of soldiers for other than intended purposes and other negative features of military conscription can be considered a state secret (Article  1.2.3). As for information about the effectiveness of the provision of moral and psychological preparation and use of the military which make it possible to determine their level of combat readiness (Articles 1.2.1, 4.6.4), here it is entirely baffling as to what is meant – perhaps they have in mind the effectiveness of the influence of those indicators which were listed above, or else maybe they are referring to such kind of secret psychological or psychogenic programs which could influence fighting readiness. All of this can lead to major violations of human rights, whereas Article 8 of the law of Ukraine “On state secrets”  prohibits the classification as secret of any information about cases of violations of human and civil rights and liberties.

Incidentally, given that Articles 1.2.1 and 4.6.4 talk about the moral and psychological state in general, without any specific identifying features, then even if in the military everything was fine and the moral and psychological state was alright or high, this would still constitute a state secret.

As for Article 1.2.2,  which classifies “information about the moral and psychological situation in regions where the military (forces) are being used, which makes it possible to establish their level of combat readiness”, this is a vivid illustration of how General Military Headquarters, whose experts have included in the LIISS all of the above-mentioned Articles (1.2.1, 1.2.2, 1.2.3) wish to shut away, and separate the army from the society which the army is supposed to defend.  What exactly did the experts have in mind in determining what needed to be classified as secret – panic among the population, the attitude of the population to the use of the military, acts of the military in relation to the population, and so forth?  And how can that be made secret, unless one maybe surrounds the entire region where the troops are mobilized?  Here too it will become clear enough that the situation is not good.  Furthermore, the same Article 8 of the law of Ukraine “On state secrets” prohibits the classification of any information about extraordinary phenomena, the situation with law and order, cases of violations of human and civil rights and liberties.

These are extremely cynical and terrible articles, this being confirmed as well by Article 1.2.3 about the psychogenic losses of personnel which first of all depend on the moral and psychological condition in the military and in regions where the military are mobilized.  In fact, however, psychogenic losses can arise as a result of the unscrupulous and sometimes unprofessional work of medical commissions which allow clearly unwell young men to be called up, this seriously undermining not only the authority, but also the fighting capacity of the army.

It is in general very strange that in our times the General Military Headquarters of the Armed Forces of Ukraine should consider that the more shut off from society the army is, the higher the fighting capacity of its personnel will be. And this regardless of the fact that in the last few years there have been any number of discussions, meetings and agreements between the military and representatives of the public about making the army as open as possible, about its contact and dialogue with the public, civic organizations, primarily in order to raise specifically the moral and psychological state within the military, and the level of trust of the population in their defenders.

So then, have all positive achievements in these directions now been nullified?  In general, we have all grounds for suspecting that, for example, the army could be used against its own people and not one media outlet would be able to provide information about it since the latter constitutes a state secret.

We would remind the reader once again that since there is no definition of the term “moral and psychological state”, even if the mobilization and actions of the military in a particular region are entirely supported by the local population, it will still not be possible to give out any information which remains a state secret.

The Kharkiv Regional Union of Soldiers’ Mothers requested an explanation for the appearance in the LIISS of Articles 1.2.1, 1.2.2, 1.2.3, and received the following reply signed by the Head of the Central Department for the Protection of Information and Cryptology of the General Military Headquarters of the Armed Forces of Ukraine, A. I. Demyanenko:

On the instructions of the Deputy Head of the General Military Headquarters of the Armed Forces of Ukraine careful attention has been given to your letter concerning the need for a review of articles of the “List of items of information which constitute a state secret” (hereafter LIISS), approved by Order of the Security Service of Ukraine on 12.08.05 № 440, with regard to the moral and psychological state of the members of military formations and to the effectiveness of the provision of moral and psychological preparation and use of the military.  

The Armed Forces of Ukraine constantly demonstrate their openness and transparency on issues concerning the state of military discipline, law and order, and their moral and psychological state. The information referred to in Articles 1.2.1, 1.2.2, 1.2.3 of the LIISS are concerned exclusively with a state of military rule the introduction of which is envisaged in the Law of Ukraine “On the legal regime of a state of military rule” from 06.04.04 № 1647-Sh. It would be specifically in such a period that the moral and psychological state of the troops should not become known to the enemy since they make up the fighting potential of the Armed Forces of Ukraine.

This also applies to the concept of the effectiveness of the provision of moral and psychological preparation and use of the Armed Forces of Ukraine. This type of provision, in the period outlined, would be a component part of the comprehensive provision of the military (forces), which include fighting (operational), technical, rear guard, medical and moral and psychological provisions.

Taking into consideration the above, the information outlined in Articles 1.2.1, 1.2.2, 1.2.3 of the LIISS relate to the sphere of defence and are subject to classification as secret. The disclosure of the above-mentioned information would lead to divulgence of information about the level of fighting capacity of the Armed Forces of Ukraine, and the conditions of their use. Furthermore, the articles of the LIISS mentioned refer to generalized data about military formations, and not about individual servicemen.

The information referred to in Article 4.6.4  of the LIISS relates to the competence of the state expert on classified information of the State Border Guard Service of Ukraine.

This letter, despite the florid rhetoric about the constant demonstration of the openness of the army, is stunningly open in being both untruthful and illogical.  Not one of the Articles mentioned about the moral and psychological state or the psychogenic losses of personnel is there any suggestion that these articles “are concerned exclusively with a state of military rule”.  Lieutenant Demyanenko provided no explanations as to what specifically is meant by “the moral and psychological state”, or what is denoted by the “concept of the effectiveness of the provision of moral and psychological preparation and use of the Armed Forces of Ukraine”, but simply stated that this is a component part of the comprehensive provision of the military. However, the Head of the Department states that generalized data regarding military formations are classified, and not information about individual military servicemen. This means that data about “didovshchyna” in a military formation, for example, a military unit or training institute – are state secrets, and if one gives the name of the victims or perpetrators, this is already not a state secret.  It is thus not possible to draw conclusions. In which case who are we hiding information about the real situation with the rights of soldiers in the army?

All of this shows a virtually unconcealed desire of the military, regardless of all their utterances about the openness of the army, to hide the truth about the real state of affairs in the army. These articles should therefore without fail be excluded from the LIISS.

On the basis of the above, and bearing in mind that relations in the field of protection of state secrets are regulated among others by the Laws of Ukraine “On information” and “On state secrets”, the term “confidential information which is the property of the state” should be removed from Articles 4.9.11, 4.9.13, 4.9.14, while Articles 1.2.1, 1.2.2, 1.2.3 and 4.6.4 must be entirely removed from LIISS without delay.

Extracts from LIISS (the Articles discussed in this publication)  A list of abbreviations used is provided below the table.

S  “Secret”  TS  “Top secret”  PI  “Of particular importance”

SSU  The Security Service of Ukraine

SBGS  The State Border Guard Service

ME  The Ministry of the Economy

STSU  The State Tax Service of Ukraine

DNG  The Department of the National Guard

GMH  General Military Headquarters

CID  The Central Intelligence Department

FIS  Foreign Intelligence Service

SDPE  The State Department on Penal Issues

[1]  This, according to the newspaper “Ukrainska Pravda” (11.08.2005) is the most firmly closed state body in Ukraine.  It has more or less the same status as a ministry, and would seem to be responsible for guarding high-ranking figures, etc (translator’s note).