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04.06.2006 | Marianna Bondarenko

On the secretiveness of state bodies yet again…

   

Everybody knows about the secretiveness of state bodies. Try to write a request to a state body and in most cases you will receive a quite civil response that such information cannot be provided for this or that reason. At best the officials will answer your request, but so that you can’t understand a thing. However, there is another possibility: despite the rules of the Law of Ukraine “On information” on having to respond within a fixed period, you will not get an answer at all.

The following concerns a case when the Secretariat of the Human Rights Ombudsperson (hereafter the Ombudsperson) refused to grant access to the Provision on the Secretariat and on Representatives of the Ombudsperson, describing the given document as an internal departmental document, and therefore not available.

The High Administrative Court of Ukraine (HACU) considered the cassation appeal of Ms. K against the Ruling of the Appeal Court in Kyiv from 23 June 2003 on the administrative case based on a suit filed by Ms K. against the Secretariat of the Ombudsperson calling for their actions to be declared unlawful and seeking moral damages.

The HACU established that in February 2003 Ms K. filed the suit claiming that despite the requirements of the Laws of Ukraine “On information”, “On the Human Rights Ombudsperson”, the respondent had not since January 2002 provided her with the possibility to see the Provision on the Secretariat and on Representatives of the Ombudsperson  In demanding that her right to information be restored, the claimant demanded 925 UH in moral damages.

On 17 April 2003 the Pechersky District Court in Kyiv partially satisfied the claim. The actions were declared unlawful and the Secretariat of the Ombudsperson ordered to allow the claimant access to the requested information. The other demands were rejected.  On 23 June 2003, the Appeal Court in Kyiv reversed the Ruling of the court of first instance and the case was submitted for new consideration

In her cassation appeal, Ms K. referred to infringements by the Appeal Court of both material and procedural law, and called for its decision to be reversed and the original ruling of the court of first instance to be upheld. A representative of the Ombudsperson’s Secretariat rejected the grounds presented.

The cassation appeal needs to be allowed on the following grounds. According to Article 202 of the Civil Procedure Code of the UkrSSR of 1963, in force when the court ruling was passed, such rulings must be legal and well-founded. In compliance with Points 2, 3 of Article 202 and Points 6, 7 of Article 203 of the given Civil Procedure Code, a court must establish and point in its ruling to the facts and corresponding legal relationships, to any violation of the claimant’s rights and to choose how to protect these rights in the case of their violation.

According to the rules in Article 305 § 2 of the CPC of the UkrSSR, in appeal proceedings the court has the right to overturn the ruling of the court of first instance and to direct the case for new consideration, if a violation of procedural law is established which hinders the appeal court from investigating new evidence or circumstances not considered by the court of first instance.

The court of first instance established, and the appeal court agreed with this, that in January 2002 Ms K. had sent the ombudsperson a request to see official document of the latter, including the Provision on the Secretariat and on Representatives of the Ombudsperson. The claimant received a letter dated 29 January 2002 and signed by the head of the department in charge of requests from the public of the Secretariat refusing to provide the information. The grounds given were that the requested documents were internal and connected with developing the directions of the agency’s activities, and could therefore not be made public on the basis of the demands of Article 37 of the Law of Ukraine “On information”.

The court of first instance had concluded that the claimant’s right to the information had been violated through this refusal, whereas the sense of the appeal court’s decision suggests that such a conclusion was made on the basis of insufficiently clarified circumstances and was premature.

The HACU ruled that the conclusions of the court of first instance had been legitimate and well-founded, while those of the appeal court were not in compliance with current material and procedural law.

The constitutional right of everybody to freely collect, store, use and disseminate information set down in Article 34 § 2 and 3 of the Constitution of Ukraine 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.

The basic law regulating the legal grounds for activities involving information is the Law of Ukraine “On information”, according to Article 9 § 1 of which all citizens of Ukraine, legal entities and state bodies have the right to information. This right implies the opportunity to freely collect, store, use and disseminate information needed to exercise their rights, freedoms and legal interests and carry out  tasks and functions. Article 10 of the Law reads that the right to information is provided, in particular, by the obligation of state bodies to inform about their activities and decisions.

According to Article 21 § 1 of the Law, official information created in the process of current activities of legislative, executive and judicial power, bodies of local and regional self-government constitutes information of state bodies and bodies of local and regional self-government, and the refusal to provide such information in response to request for information made in keeping with the rules of Article 32 of the Law, is possible only in cases established by Article 37 of this Law, in particular, if these documents represent internal departmental correspondence (staff reports, correspondence between departments, etc.), if they are connected with developing the directions of activities of the agency, the process of decision-making and precede such decisions.

The Law of Ukraine “On the Human Rights Ombudsperson” (Article 4) states that the ombudsperson is an official figure whose status is stipulated by the Constitution of Ukraine, this Law and the Law of Ukraine “On the civil service”.

In compliance with Article 10 of the Law, a Secretariat is created to provide for the activities of the Ombudsperson, with the work of this body being regulated by the Provision on the Secretariat of the Ombudsperson. According to Article 11 of the Law, the Ombudsperson has the right to appoint his/her representatives whose activities and authorities are regulated by the Provision on representatives of the Ombudsperson of Ukraine, approved by the latter.

This means that the Provision on the Secretariat and on Representatives of the Ombudsperson does not constitute information regarding which restrictions are established by Article 37 of the Law of Ukraine “On information”.

The conclusion of the appeal court that the Provisions thus created for the Ombudsperson are his or her possession and may not be provided for reading in response to a request for information runs counter to the rules of Article 12 of the Law of Ukraine “On the Human Rights Ombudsperson” concerning financing of the Ombudsperson’s activities from the State Budget of Ukraine and Article 38 of the Law of Ukraine “On information” stating that the information collected at the expense of the State Budget is state property with access determined by the state and not those who prepared it..

Since, according to the rules of Article 62 of the 1963 CPC  in force at the time of the ruling, the court evaluates the evidence on the basis of its inner conviction based on a thorough, complete and impartial consideration at a court sitting of all the circumstances of the case as a whole, being guided by the law, and no evidence is accepted a priori, the court of first instance validly rejected the conclusion of the Koretsky Institute of State and Law which classified the  Provision on the Secretariat and on Representatives of the Ombudsperson as internal departmental information as not complying with the law, while the appeal court had erroneously cited this conclusion as one of reasons for reversing the court’s ruling.

The conclusion of the appeal court that the Ombudsperson cannot be considered an organ of state power, given as one reason for reversing the ruling, runs counter to Article 101 of the Constitution of Ukraine and Article 4 of the Law of Ukraine “On the Human Rights Ombudsperson”, according to which the Ombudsperson is an independent individual state organ being guided in its activities by legislation, including the Law of Ukraine “On information”.

Under such conditions the appeal court had no legal grounds for reserving the ruling of the court of first instance.

In accordance with the rules of Article 226 of the Code of Administrative Justice of Ukraine, the cassation court can reserve the decision of a court of appeal and recognize as valid the ruling of the court of first instance, taken in compliance with law and reversed by mistake.

The High Administrative Court of Ukraine therefore allowed the appeal from Ms K., reversed the decision of the Appeal court in Kyiv of 23 June 2003 and upheld the decision of the Pechersky District Court in Kyiv.

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