«Espionage is raging»

Evhen Zakharov, the Kharkov group for human rights protection

A very short term had passed after the adoption of the Law «On the introduction of changes to some legal acts of Ukraine (in the sphere of the protection of state secrets)», and the life demonstrated a vivid illustration to it.

On 21 October 1999 the newspaper «Fakty» published the information that the Sevastopol USS officers «ceased the work of the group of scientists of one of research institutes, who tried to pass some experimental scientific materials abroad. The press service of the USS communicated that the remuneration for the «services» of the Crimean scientists had to be paid by foreign scientific centers. The money for the rendered information were transferred to the account of one member of the group, who later paid to his colleagues in cash (USD)». Similar articles titled «Brought out into the open» («Slava Sevastopolia», 23 October), «Criminals are arrested» (Krymska gazeta», 27 October), etc. were printed in the Crimean newspapers… The newspapers enthusiastically wrote that «the delivery of secret information» to one of the Western countries had been arranged, and that «the head of the criminal group» had been arrested. Yet, it turned out that the group of Sevastopol biologists worked after the project, which was jointly financed by the state budget of Ukraine and the foundation INTAS of the European Union. The research was connected with plankton, and the scientists had no access to state secrets since the beginning of the independence…

Last week the informational agencies communicated that the officers of the USS directorate in the Kharkov oblast detained a jobless Kharkovite, who tired to pass some secret information to foreigners. For three days all Kharkov oblast TV channels effusively described the successful operation of the law-enforcers. Central newspaper also wrote about this event under very typical headlines: «Espionage is raging» or «A Ukrainian spy was detained in Kharkov» (maybe the authors think that Kharkov is not a Ukrainian city?). And it seems that nobody noticed the obvious contradictions in the informational messages.

Here is the example of a typical message.

Kharkov is interesting for industrial spies

Kharkov law-enforcers detained a local dweller during the attempt to pass the closed information to foreigners. The press center of the USS directorate of the Kharkov oblast communicated that in the course of the ODA the officers of the oblast USS got the information about the illegal actions of a Kharkovite, who tried to establish the contacts with the representatives of foreign states with the aim to pass them the documents with the restricted access concerning the scientific and technical research.

During a year he, in a fraudulent way, wormed into the confidence of Kharkov scientists and promised to acquaint them with foreign investors for the realization of the promising scientific and technical projects, which they could not realize in Ukraine. About a score of researchers fell for the bait of the intermediary, including those, who had the access to secret materials.

Taking into account the preconditions for the commitment of an especially grave crime against the state that are contained in the actions of the Ukrainian citizen, he got the official warning; the prophylactic work was conducted with the scientist, who got into contact with him. The message of the press center also reads that the actions, which inflicted damage to the interests of the state, are regarded as high treason in the form of espionage and are punished with incarceration for the term from 10 to 15 years.

«Yuridichny visnyk Ukrainy»,
No. 30, 26 July – 1 August 2003

We know nothing more about this story.  Yet, even the information spread by mass media is sufficient to draw some conclusions. It seems that this jobless man is a rather clever and educated person, since we was able to rouse the interest of a score of scientists in the opportunity of the realization of scientific and technical projects. So, why they had not to «fall for the bait»? Maybe their scientific work is sufficiently provided in Ukraine? Of course it is inadmissible to pass abroad the state secrets. Yet the authors of the message mention «the closed information» and «the documents with the restricted access concerning the scientific and technical research». Nobody said that the passed information was a state secret. If state secrets were passed, that it would be not «the preconditions for the commitment of a crime», but a real crime envisaged by Article 328 of the Criminal Code of Ukraine, and the guilty of this crime would be the scientist, who had the access to the information that was a state secret. Thus, the state secrets were not passed. So, there were no grounds to say about «high treason in the form of espionage». The subject of the crime envisaged by Article 11 of the CC of Ukraine «High treason» is a citizen of Ukraine, and the subject of the crime envisaged by Article 114 «Espionage» is a foreigner or apatride. So, the high treason in the form of espionage implies the preliminary collusion between a representative of foreign country and a Ukrainian citizen about the collection or delivery of the information, which is related to state secrets. Yet, this did not happen. And what happened in fact? What were the grounds of the statement that such «actions, which inflicted damage to the interests of the state, are regarded as high treason in the form of espionage»? Article 111 of the CC of Ukraine regards as a crime the commitment by a Ukrainian citizen of a premeditated actions injurious to sovereignty, territorial integrity and inviolability, defensive capacity, state, economic or informational security of Ukraine. But what was injured by the actions of the «enterprising jobless»? Maybe the «informational security»? Yet, this term is not defined by any Ukrainian law.

As to the official warning that was issued to the offender, what were the contents of this warning, taking into account the fact that the list of the information, which is secret, but is not related to state secrets, does not exist at all? Perhaps, only about the necessity to submit to the approval of the USS all contacts concerning the scientific and technical projects. Maybe, this was the essence of the «prophylactic work» conducted with the scientist.

The absence of legal definition of the contents of the information with the restricted access, except the information related to state secrets, entails the vagueness of the situations connected with any information, which may turn out to be closed. Therefore, the actions of the USS officers may be qualified as arbitrary and illegal, since they violated the constitutional right for information stipulated by Article 34 of the Constitution of Ukraine.

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