war crimes in Ukraine

The Tribunal for Putin (T4P) global initiative was set up in response to the all-out war launched by Russia against Ukraine in February 2022.

THE GILC CONFERENCE ’Outlook for freedom, privacy and civil society on the internet in Central and Eastern Europe’.


Evgeniy Zakharov,
Kharkiv Group for Human Rights Protection

1. The state of Internet

The Internet has begun to develop in Ukraine since 1991 exceptionally owing to efforts of private businessmen. Now in Ukraine there are appr. 350 Web-servers and 400 virtual Web-servers, more than 30,000 domains, more than 100,000 active users, 103 Internet Service Providers. 30% of all users live in Kyiv (capital of Ukraine), another third - in 5 biggest cities (Dnepropetrovsk - 12%, Kharkiv - 10.5%, Donetsk - 8%, Odessa - 4%, Lviv - 3%). Thus, each hundredth inhabitant of Kiev and Dnepropetrovsk has access to Internet, on the average for whole Ukraine - each five hundreadth inhabitants. One year volume of informative market is appr. $40,000,000.

Informative resources in Ukrainian part of Internet is not high as well as the Russian language part on the whole. Monitoring of informative resources is practically absent. Only about 40 newspapers have electronic versions on the Web-servers.

At present the development of Internet is braked by the monopoly of state company ’Ukrtelekom’, possessing more than half external communication channels and practically all telephone channels. ’Ukrtelecom’ channels rental cost is 6 to 8 times higher than, for example, in Czekia or the USA. In general, telecommunication infrastructure is weakly developed. The great part of providers use channels before 28.8 Kbit/sec and only 16 providers use channels with transmitting capacity more than 64 Kbit/sec. Only 11 providers have direct external line to abroad.

Development of Unternet is also braked by too high payment for services. Great number of providers take from $10 to $20 per month for services and from $1.5 to $4 per hour.

2. The Ukrainian state and Internet. Law regulating Internet

Special law regulating Internet is absent. There are the basic legislation acts in the sphere of information concerning Internet such as: the Ukrainian Constitution adopted on June 28, 1996, the law ’On information’ adopted in 1992, the law ’On scientific technical information’, adopted in 1993, the law ’On protection of information in the automatic systems’, adopted in 1994, the law ’On TV and broadcasting’ adopted in 1994, the law ’On informative agencies’ adopted in 1995, the law ’On National Archives Foundation and Archives Bodies’ adopted in 1993, the law ’On state secrets’ adopted in 1994 and ’List of information items that belong to state secrets’ adopted in 1995 by the State Committee of Ukraine on State Secrets.

Article 34 of the Ukrainian Constitution guarantees ’the right for freedom of thought and speech, the freedom of expression of opinions and convictions’. Each citizen has the right ’to freely collect, store, use and distribute information orally, in writing or in any other way on one’s own choice. Realizing these rights may be limited by a law intended at the defence of national security, territorial integrity or public order with the purpose of preventing clashes or crimes, intended at the protection of the population health, reputation or rights of other people, at prevention of disclosing confidential information or for supporting the authority and integrity of the court’.

The law ’On information’ guarantees the access to information by defining the system of relations and obligations in this sphere, usual for a democratic state. It prohibits to restrict the access to open information and divides classified information into confidential and secret. Since the confidential information consists of the data which are owned, used, or managed by definite physical or juridical persons, coming into possession of the data by spending their own means, hence the mode of granting and distributing this information is determined by the owners. The secret information is defined as ’state or other secrets, determined by law, divulgence of which will damage either a person, or society, or state’.

The definition of a state secret and the procedure of access to the information which makes a state secret is defined by the law ’On state secrets’ and ’List of information items that belong to state secrets’. As to ’other secrets, determined by law’, here everything is rather fuzzy. Any law does not contain any defition of military, service and commercial secrets. Thus, relating some information to secrets seem to be defined and regulated by intra-agency acts and instructions. It is known that intra-agency acts are not published in the official press, and in this way state agencies become similar to owners of information, who divulge information or keep it secret as they found best.

Before 1995 Internet developed without any participation of the state. In May 1995 National Agency on Informatization (NAI) was created. The latter word does not exist in Western languages since the denotate does not exist; such words as ’informatization’, ’automatization’, ’privatization’, etc. denote a fruitless state campaign for implementing the corresponding entity. The only American analog of this class of words is, perhaps, Prohibition. NAI must coordinate work of the ministries, other central and local agencies of the executive power, as well as enterprices, offices and organizations, devoted to creation and development of all state informative networks, systems and databases (on national, regional, branch and inter-branch level). NAI must also prepare normative acts regulating informative relation and development of informative space. NAI has their representatives in the Crimea, all 24 regions, Kiev and Sebastopol.

The creation of NAI would not harm anybody if this organization were an equal participant of the information market. But NAI demonstrated two dangerous tendencies: the wish to establish state monopoly at the information market and tends to restrict the distribution of information for reasons of state security and protections of morals.

In Article 17, Section 1, of the Constitution of Ukraine treating the national security of information exchange the latter is declared to be ’the duty of all Ukrainian people’. It would be more reasonable to state that the duty of all Ukrainian people should be preventing the government from interference into the information exchange under the pretext of providing security. This interference has a long history.

In January 1997 the Supreme Rada adopted ’The Conception of the natural security in Ukraine’. Among fundamental principles of the security support many good things were listed, such as observance of human rights, superiority of law, public oversight over the military and other structures in the system of providing the natural security. The Law mentioned possible threats to the national security caused by insufficient control over information: ’information expansion from other countries, leakage of information containing state secrets and other secrets mentioned by the corresponding law, as well as confidential information owned by the state’. It is worth noting that confidential information may be owned by natural or juridical persons, but not by the state, which follows from the Law ’On Information’, Article 30. Among the main remedies used for providing the natural security in the information sphere the Conception mentions complex measures aimed at protecting the Ukrainian information space, at entering the world information space and at removal of negative tendencies of violating the Ukrainian information space, as well as at the development of necessary facilities and modes of operation (reception, storage, distribution and use) with socially important information, and at the creation of a well-developed infrastructure in the information sphere.

In April 1997 Parliamentary Readings were held devoted to the topic ’Freedom of Speech in Ukraine: present state, problems, prospects’. The participants remarked: ’Internet may become a threat to state secrets and confidential information of citizens, besides, it can increase the dependence of the national information space on foreign-produced information and alien information policy’.

On February 4, 1998, the Supreme Rada adopted the Law ’On the national program of informatization’. The Law has two main targets; one of them is to provide the national security. This function has to be fulfilled by a central state agency appointed by the Cabinet of Ministers. On the same day the detailing document ’The conception of the national program of informatization’ was issued. The document affirmed that Ukraine should overcome her backwardness in the information exchange by following the state policy of informatization. Having read this conception, one can easily understand that the Government is convinced that it must firmly control the development of the information market.

A day before the President issued the Edict on creating the Commission of information security. Aleksandr Below, General- Lieutenant of the Ukrainian Secret Service, was appointeds the Head of the Commission. Judging by press comments, he has the reputation of an intellectual and serious analyst. In an interview the General stated that the Commission would do all possible not to harass free access to information, except in cases stipulated by law. Aleksandr Matov, the Chairman of the National Agency on informatization at the President’s Administration, gave a more detailed statement: any country must control the valuable information outflow, so the measures to be taken have the only purpose of ’ordering’ network communications, as it is highly irregular when communications within a country are carried via foreign servers. Mr. Matov pointed out that such discipline would concern only state agencies. He added that it would be undesirable if this campaign would involve Ukrainian providers.

On April 22, 1998 President of Ukraine Leonid Kuchma undersigned the Edict ’On some measures concerning protection of state interests in the information sphere’. According to position 1 of this edict, the State Committee of communications of Ukraine shall procure the exit to foreign networks only from the networks of the enterprises (operators) ’Ukrtelekom’, ’Ukrkosmos’, ’Infokom’. According to position 2, ministries, other central and local agencies of the executive power, as well as enterprises, offices and organizations that include secret regime subunits shall transmit their data only through these three enterprises.

So, at a first glance, the campaign concerns executive power bodies, local administrations and state structures containing secret-protecting departments. We hope that the edict of 22 April will result in the separation of Internet users into nonstate and state sectors, with imposing special operating modes on the latter only. However, even assuming this optimistic interpretation, in my opinion, the Edict contradicts to the Constitution of Ukraine and can be contested in the Constitutional Court, since it violates the right to distribute information freely (Article 34). The Edict also violates Article 10 of the European Convention on human rights which Ukraine is obliged to obey. Besides, the Edict rudely violates Article 42 of the Constitution that stipulates the freedom of the entrepreneurial activity and forbids monopolies, as well as the number of articles of the Law ’On restricting monopolies and unfair competition’, because the demand to use only the services of ’Ukrtelekom’, ’Ukrkosmos’ and ’Infokom’ is a typical ’hard selling which puts competitors into a losing position’ (Article 4), ’ousting from the market or restricting the access to the market for purchasers, sellers and other businessmen’ (Article 5), ’discrimination of businessmen by government bodies and agencies’ (Article 6). In fact the Edict provides monopolistic rights to ’Ukrtelekom’, ’Ukrkosmos’ and ’Infokom’.

One is left with many unanswered questions. For example, it is not clear what to do with universities and other higher education institutions that always had secret-protecting departments (notorious ’first departments’) and recently acquired equipment (usually donated by American or German colleagues or charity funds) for the connection with Western servers via a satellite. Obeying the Edict will break the signed contracts and agreements. Further, the Edict will hamper the financial state of research institutes, which will have to pay much more to the Ukrainian servers listed in the Edict. Research workers, for whom the use of Internet is a necessity because of the information famine in Ukraine, will suffer most and produce less. I am sure that for many of them this difficulty will be the last argument for emigration. As one of researchers noted bitterly, ’the consequence of enforcing this edict will be the fourth wave of emigration of Ukrainian high-tech professionals to a country where the authorities will not stand in the way of their favorite work. The work that does not bring any dividends in our country, the work, to which they devoted all their lives’.

Such fears are not groundless. To be convinced one can read the article written in ’Uriadovyi Kuryer’ of 12 February by Pavlo Mysnik, the Chairman of the State Committee on the protection of state secrets and technical protection of information. He writes:

’Information in the modern world is valued exceedingly high, since it makes the initial capital that can yield unforeseeable profit in the future. It is painful to watch how the information is spilt, and sometimes the opportunities contained in the information are being lost. In this aspect the drain of scientific information especially troubles me. Research projects and ideas of our scientists are bought for a song by foreign grantors. The total outflow of information is dangerous to our state now and leaves us without future. That is why the administrations of the National Academy of Sciences, ministries and other bodies that control research institutions must be interested whither leaks the information greatly needed by our state.’

At the same time NAI are preparing some drafts of law aimed at protecting the Ukrainian information space: ’On informative sovereignty of Ukraine’, ’On controlling security in data transmitting networks of Ukraine’, as well as other drafts regulating information networks and systems. Alas, drafts of laws, edicts and similar legal documents are never publicly discussed, the society faces accomplished facts and is appealed to obey the newly baked laws. The state ignores the society consciously and unconsciously. Generally speaking, restrictive tendencies are becoming stronger and stronger. It is planned that special department on technical protection of information would be created. Some corresponding documents have been prepared, in particular, amendments and additions to the Law ’On state secrets’ and the ’Instruction on the procedure of providing regime of secrecy in state and local administration bodies, in enterprises, establishments and organizations of Ukraine’. This instruction closely follows the corresponding instruction that regulated questions of secrecy in the former USSR, many positions are borrowed verbatim.

Instead of the mentioned drafts and amendments one would rather expect, from the point of view human rights, not prohibitions, but prohibitions on the restrictions of the access to international networks for NGOs and private persons. Alas again! Attempting to protect information security, the law-writers imposed stringent restrictions on the access to information. They did not follow the principle adopted in civilized societies: ’deregulate as much as possible and regulate as little as necessary’.

3. Penal law concerning Internet

There are some penal norms that can be connected with Internet.

The responsibility for disclosure of state secrets is regulated by Article 67 of the Penal Code and it lists the punishments as encarceration from two to five years, or, if the disclosure had grave consequences, then to the term from five to eight years. This Article may be applied only to those persons who learned about the state secrets in the course of their official activity. There are no laws that can be applied to persons who are not state officers. Article 68-1 is like to Article 67 and sets the responsibility for collecting and passing service secret to international organizations It is unknown cases of using these articles concerning with Internet. Until now these clauses have never been applied.

Article 198-1 of the Penal Code sets the responsibility for the premeditated intrusion to the work of automatic systems that resulted in distorting or destroying information or information carriers or creating and distributing software or hardware included for illegal intrusion into automatic systems and capable of distortion or destroying informationa and information carriers. It lists the punishments as encarceration up to two years, or coercive work for up to two years, or the fine of 100 to 200 minimal monthly wages. If the disclosure had grave consequences, then to the term from two to five years. There are some cases of using this article for teenagers-hackers but without encarceration.

Article 211 (’import, production, sale and distribution of pornographic items’) does not mean the operation in Internet directly. However, at least one precedent is known.

In the end of August 1997 the Ministry of Interior of Ukraine received from the German Branch of Interpol the fax of the following content. On the server ’Relcom-Ukraina’ (RU) a number of files was found figuring in the case investigated by the Branch. The case under investigation concerned ’hard/childish porno’. The fax presumed that the server’s administrator, having unlimited power, ’could’ have access to the files and ’could’ be a source of their distribution. The fax was sent to the ’competent agencies’ to take up measures they consider proper’.

At first measures were taken that can hardly be called civilized: the RU office was closed, computers were confiscated, operators detained (the three sys-administrators for 15 days). After passing the case to the city derectorate of militia, the investigation acquired a professional form. It was established that the porno-containing files had a 2,5-year expiry date. Since high fluidity of personnel in the RU office it was not possible to learn who input the files. Besides, according to the professional expertise, the server was not protected enough from the external sources. The case, as having no chances of being investigated’, was directed to the archives.

4. Electronic Surveillance

Article 31 of the Constitution of Ukraine adopted on 26 June 1996 states that ’the confidentiality of everyone’s correspondence, telephone talks, telegrams, and other communications is guaranteed. Exceptions can be made only by court under the circumstances predetermined by law with the purpose of preventing a crime or establishing truth in investigating a criminal case if it is impossible to get information by other ways’.

The procedure of carrying out such exceptional actions is regulated by the Ukrainian Law ’On crime investigation activities’ adopted on 18 February 1992 with changes and amendments adopted during 1992-1993.

Article 9, Sect.8 of this Law grants the right to the organs carrying out the crime investigation activities to tap communication channels and use other technical facilities to obtain information and to intercept messages.

Besides, special units of the MIA and USS for struggle with organized crime have the permission, according to Article 15 of the Law ’On organizational and legal foundations of struggle with organized crime’, additionally use special technical facilities in the following cases:

a) control, recording and documentation of talks and other actions of people when there are grounds to believe them connected with the organized crime;

b) recording and documentation of the fact of the telephone conversation between citizens, sending a letter or a telegram, without disclosing the sense of the telephone conversation, letter or telegram;

c) ensuring personal security and safety of dwelling and property of workers of the above-listed organizations, participants in a trial and their near relations (with their agreement) in the case when they are endangered due to their participation in the struggle with organized crime.

Factual data recorded by special organizations with the use of technical facilities can be used as proofs in the trial.
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