Letter to Viktor Yushchenko on the illegally classified normative-legal acts
Respected President Yushchenko!
When we were on Maydan, you told us about openness of power. We have come for the promised! The victory of people in the Orange revolution, which lead you and your team to power, became an evidence of principal negation by the society of old, Kuchma’s system of organization and functioning of the power, the main features of which were, in particular, clannishness, internal character of taking decisions, closeness from citizens, fear of free informational sources.
However, we believe that inheritance by the new power of the odious practice of issuing «secret» normative acts with classification «not for publishing» contradicts the above-stated principles and the declared intentions on the allegiance to democracy, development of jural state and acknowledgement of the values of civil society.
We understand that every state must have its secrets. Yet, the order of classification of normative acts should be distinctly determined by law.
We also know that the classification «not for publishing» is not envisaged by any legislative or normative acts, and that even a legally classified document must contain its title, but not only number and date, like now. Even the classification «for service use only» cannot be regarded as legal, since no Laws mention about it.
When the present power was the opposition yet, it unmasked such actions of the «old power», which concealed, under the restricting classifications, its corruption deeds, internal agreements and unprecedented amounts of social comforts for top nomenclature, which were in no way envisaged by law. This is confirmed with, for example, President’s Edicts No. 1180/2002 of 17 December 2002 «On regulations on the State administrative department» and No. 1213 of 24 December 2002 «On additional measures for material provision of workers of the Supreme Council of Justice», which edicts were revealed by Yulia Timoshenko in the end of 2002. These edicts had the classification «not for publishing». Valentina Semeniuk told that Igor Bakay sold to private persons, through the State administrative department, the objects, forbidden for privatization, in particular, Crimean sanitariums, and made it using the decisions with the same illegal classifications.
However, the yesterday’s opposition, which has become the power now, does not hurry to publish the secrets of Kuchma’s power, including two above-mentioned Edicts.
«The national program of development of energetics up to 2010» is still hidden under the classification «for service use only», as well as the agreement of 29 October 2004 between the company «Naftogaz Ukrainy» and «Gazprom» on the creation of gas consortium. The latter agreement is closed even for the members of supervisory board of «Naftogaz Ukrainy». We also got the information that the Ministry of Justice classified as «for service use only» the conclusions of experts of the Council of Europe on the draft of the Criminal-Procedural Code. There are many other examples.
The situation at the local level is even worse. There obviously criminal deeds are hidden under the classification «for service use only», such as distribution of Kyiv land among the high-ranking private persons. Moreover, the local organs of state power and local self-government do not publish the normative acts, issued by them, without classification of these documents. So, the people, whose rights are violated by these acts, even cannot complain to court, since they learn about them only after expiration of all terms for complaint.
When the people overcame Kuchma’s regime and lead to the state posts those, who now call themselves «new power», the people expressed its will to purge the state of the features of Kuchmism -- to create new, open and transparent system of relations between the people-sovereign (Article 5 of the Constitution of Ukraine) and the state as an organization of public power, responsible to the people (Article 3 of the Constitution). Democracy implies well-informed people, otherwise it is not democracy.
According to Articles 6 and 19 of the Constitution of Ukraine, the organs of state power and their officials exercise their authority within the limits established by the Constitution and in accordance with the laws of Ukraine. Use of the classification «not for publishing» (or similar ones) is not envisaged by any laws. At the same time, Article 34 of the Constitution reads that the access to information «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». Now the only law of this kind is the Law of Ukraine «On state secrets», which recognizes only such classifications as «especially secret», «absolutely secret» and «secret».
Thus, the practice of issuing the «secret materials» not only contradicts the democratic demands, but also is illegitimate, except the acts, which are affected by the Law of Ukraine «On state secrets».
We have to state that the reaction of power to the open letter, placed on the site of «Maydan» (http://www2.maidan.org.ua/n/petit/1107202424), which letter was initiated by co-chairman of the Kharkiv group for human rights protection Evhen Zakharov and supported by hundreds of Ukrainian citizens and scores of public organizations, has not went beyond formal responses.
And these responses only strengthen our anxiety that the information, concealed from people, is not really a state secret, therefore it was not classified in accordance with the Law of Ukraine «On state secret».
And what hinders the publication of Leonid Kuchma’s edicts, which do not concern the appointments to the USS, but contain, as far as we know, the orders about awarding of officials, illegal amortization, «laundering of taxes through non-existent firms», etc.? Are there legal grounds for the concealment of such information?
It is sad to read the response of Oleksandr Zinchenko (se above) to human rights protectors Evhen Zakharov, in which the State secretary in fact justifies the actions of the former regime, regarding a President’s edict (not a law) as the sufficient reason for not-publishing of the normative acts. It is especially strange if to take into account that we know already, what actions are covered by Kuchma’s edicts.
The answer of the Ministry of Justice to Evhen Zakharov (http://maidan.org.ua/static/news/1113816463.html) justifies the practice of illegal classification with the argument that «the information created at the expense of state budget is a state property» and that «the owner of information has the right to realize any legal actions regarding his property». Well, according to this logic one can say that the state must not publish any legal acts at all. If to continue to play these pseudo-logical games, one can come to absurd. So, if information, a normative-legal act in our case, is an object of property, and the owner (the state) defines the regime of access (that is call it confidential), then this property can change the owner. Then it is possible to ask the head of the Fund of state property to offer for sale some President’s edicts with classification «not for publishing», since normative-legal acts do not belong to the list of the objects of state property forbidden for privatization.
We, participants of the Alliance of public activists «Maydan» and activists of all-Ukrainian public organizations «PORA!», believe that, being citizens of Ukraine, we have the right for information; being taxpayers, we have the right to know, for what our hired workers spend our money; being the participants of the actions «Ukraine without Kuchma», «Stand up, Ukraine!» and the Orange revolution, we want to believe that Viktor Yushchenko and Yulia Timoshenko have nothing to conceal from our society.
Continuing the joint actions for achievement of our goal – development of civil society in Ukraine, creation of mighty jural state, responsible to the society, we demand:
1. To make public all, without exception, normative acts, illegally classified by the former power.
2. To stop this illegal practice.
3. To publish all normative acts on the local level.
We appeal to you, the President of Ukraine, to destroy decidedly the greatest in Ukraine «gravitation center of corruption» – the practice of illegal classification of normative acts. This practice was one of the main reasons of appearance and development in the society of legal nihilism, «phone right» and the laws «not for publishing».
We reserve the right to ourselves, in any case of illegal appearance of a «secret» act, to strive, with legal methods and by means of direct public action, for publication of the contents of such act or the official explanation of impossibility of such publication.
Printed from Maydan. http://maidan.org.ua
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