war crimes in Ukraine

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Security Clearance (SEPTEMBER 1999 REPORT)



I. Security Clearance

Legal sources :

1. What laws (if any) regulate the issue of security clearance?

2. Please quote the relevant provisions (for example, of the Classified Information Act as well as any executory provisions regulating security clearance).

3.  Has there been public and/or parliamentary debate on the contents of those provisions?

4.  What is the relation between security clearance and lustration law (if applicable)?

5.  Which agency initiates the security clearance proceedings?

6.  Which agency conducts, and which one supervises the security clearance proceedings?

7.  With respect to whom is the security clearance proceedings instituted?
(For example, candidates for particular offices - please specify, and/or companies before entering into particular contracts . please specify.)

8.  Are judges subject to security clearance proceedings, e.g. before appointment to the Supreme Court or Constitutional Court? (Please summarize both the relevant law and the practice.)

9.  What kind of information about the candidate/company is gathered? (Please quote the text of the security clearance form.)

10.  What information about the result of the security clearance proceedings is released to the person concerned?

11.  If the person concerned wishes to challenge the result of the security clearance proceedings, what remedies are available to him?

12.  Are there any court decisions concerning security clearance? If so, please quote the conclusions of such decisions.

13.  Has security clearance ever been challenged before the Constitutional Court? If so, please provide details.

14.  How many persons were subjected to the security clearance proceedings in 1998 and January-June 1999?

15.  Please provide a list of scientific publications on security clearance, and also of the 10 major press articles on the subject (if any).

The practice of getting a security clearance in the former USSR was as follows. Within each enterprise, in each organization connected with secret information processing, there was a so-called first department, whose duty was to supervise the access to the secret information and its protection. These departments were directly connected with the KGB. Practically no enterprise existed without a first department. If an employee was likely to ever work with the secret information, he had to be given a security clearance of the 3rd, 2nd or 1st category. To this end, an immense questionnaire was filled in, then after a long time (not less than 6 months) the first department either granted the security clearance or refused to do it. No one might contest the refusal. There were such establishments and organizations, where everyone had to have some category of the clearance, including charwomen. For example, having a clearance of the 3rd category was a must for all workers of many research institutes. There were organizations which required a security clearance of the 1st or 2nd categories just for entering their territory. If some worker having a 3rd category clearance had to go on a mission to another organization, where they demanded the 2nd category clearance for entering the territory, he had to apply for the 2nd category clearance. People having 3rd category clearances might not emigrate from the USSR for five years or more. This resulted in the problem of so-called . refusniks. , i.e. people who struggled for their right to emigrate, which was refused to them. Second category clearance holders might not leave the country for ten years or more. The personal experience of the author consisted in the following: at the fifth year of the university the department recommended to send him to the Institute of low temperature physics and engineering for practicals; in the due time the practicals were over, but the author still might not enter the Institute, since he did not obtain either the clearance or the refuse. Most often a security clearance was given not for access to any secret information . the KGB machine functioned just for keeping in check potential unruly workers. I knew of one mathematician, who showed unwillingness while a coercive campaign to subscribe to the party newspaper . Pravda. . For this he was deprived of the security clearance and sacked. Formally he had the security clearance because he worked on a computer, by the way of the type that was taken from production in the West 20 years before.

In the independent Ukraine the same system is retained, but now the 3rd category clearance is not required from all, but only for those, who work with the information making state secrets. The organizations, for the entrance to which the 2nd category clearance is needed, almost disappeared.

Let us consider the legal basis for getting a security clearance. 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. . The law . On state secrets. defines in Article 1 a state secret as an item of secret information relating to defense, economy, foreign affairs, state security and defense of order, the divulgence of which may cause damage to vital interests of Ukraine, hence they must be guarded by state. The degree of secrecy of information is determined by a potential damage as the result of its divulgence, that is why there must be various restrictions according to the degree of secrecy.

Article 7 of the law rules that relating information to state secrets shall be done by a well-motivated decision of the State Expert on secrets. The State Experts, according to Article 8, are the President of Ukraine, the Speaker of the Parliament, the Prime-Minister and other top state officials, from the corresponding spheres of state structures, appointed by the President of Ukraine.

The criteria of determining the degree of secrecy must be worked out by the State Committee of Ukraine on State Secrets. The same Committee is a special central organ empowered to keep state secrets (Article 3). However, in March 1999 the Committee was disbanded and its functions and duties were passed to the Ukrainian Security Service (the USS). So it is the USS that is in charge of the protection of state secrets.

Among organizational and legal bases of the state secrets. protection (Article 17) such measures are named as licensing enterprises, establishments and organizations, a special secrecy regime for the enterprises, establishments and organizations, and a special procedure of granting access for citizens to state secrets. Such licenses are given by the USS and, according to Article 19, enterprises, establishments and organizations on getting the license have the right of access to some concrete secret information. The special secrecy regime is set in the way determined by the Cabinet of Ministers.

The access to state secrets may be granted to capable citizens older that 18, who need it in their work, service or research activities and who got the security clearance according to the procedure stipulated by the Law on state secrets (Article 21). The decision on granting the security clearance is taken by the head of a state organ, where they process the corresponding information and store its carriers.

Getting a security clearance is regulated by Article 22 of the Law. The clearance is given in a special order issued by heads of the enterprises, establishments and organizations, where the receiver works, serves or studies. If the necessity to have a clearance is not connected with the place of work, service or study, then the clearance may be given in that place where the work of the receiver concerns state secrets. The procedure of getting a security clearance by an individual includes the following steps:

necessity is checked if the individual needs to work with the information making a state secret;

trustworthiness of the individual is checked;

the individual confirms in writing that he agrees to obey the restrictions of his rights stipulated by the law;

the individual is instructed about his responsibilities and punishments for divulging the secrets.

According to Article 23 the security clearance is not given in the following cases:

absence of well-grounded need to work with secret information;

the checking of his trustworthiness showed the individual. s cooperation with the illegal activities of foreign agencies, in case when the individual did not stop such activities after an official written warning of the USS;

refusal of the individual to promise keeping state secrets or to agree to restrictions of his rights connected with the access to state secrets;

the individual was convicted for grave crimes, not removed according to the legal procedure;

the individual has psychic diseases incompatible with keeping state secrets, according to the list of diseases approved by the Ministry of Health and the USS;

the individual has personal ties with people guilty of illegal activities of foreign states and organizations, in case the individual did not stop such activities after an official written warning of the USS;

the individual gave false information about himself for getting a security clearance;

the individual is a permanent resident in a foreign country or in case if he is drawing up documents for living abroad.

All the above-listed reasons may revoke the security clearance given before (Article 26). A security clearance is also revoked when someone terminates labor activity.

Checking of individuals for giving then security clearance is made by the USS within a month according to the procedure determined by the laws on state secrets and on operative detective activities (ODA). The well-grounded conclusion of the USS on refusing the security clearance is obligatory for administrators who have to decide if the clearance may be given (Article 24). It should be noted that when a citizen is checked in connection with a security clearance, the ODA file is not started (Article 9 of the law on ODA).

If a citizen is refused a security clearance, the administrator, having to decide the case, must inform the citizen in writing on the reasons of the refusal. The citizen has the right to lodge a complaint to an administrator of higher level. If the complaint is not satisfied and the citizen finds the decision unjust, he may turn to court (Article 25).

A citizen, who got a security clearance, has the following obligations (Article 27):

not to divulge in any way the state secrets which were entrusted to him;

not to participate in unions or organizations, whose activity is illegal according to laws of forbidden by court;

not to participate in illegal activities of organs of foreign states or organizations;

obey the regime rules set at the enterprise;

inform state officers, who gave him the clearance, on the circumstances that prevent him to keep the entrusted state secrets.

Citizens, who had the security clearance and . were actually entrusted state secrets, may be restricted in their right to leave the country for permanent residence in a foreign state until the entrusted information is declassified, but not longer than for five years since the moment of revoking the clearance. . This clause does not work with respect to the countries, with which Ukraine has an agreement about the mutual protection of state secrets.

In receiving a security clearance the following steps are carried out. The citizen fills in a questionnaire in the secret department of the organization where he serves, works or studies. The citizen must communicate the following data:

surname, first name and patronymic, if they were ever changed, then when and by which reason;

date of birth and place of birth (region, district, town, village);



education, speciality according to the diploma, graduated from which institute and when;

academic degree or/and academic position;

if the citizen had a security clearance before, then give the category, time and workplace where it was given;

was the citizen ever tried in court (when, where and for what);

if the citizen ever participated in unions or organizations, whose activity is illegal according to laws of forbidden by court;

close relatives: spouse, parents, grown-up children, brothers and sisters . for each one must indicate the surname, first name and patronymic, date of birth, place of work and position, residence, names before marriage, previous marriages and data on former spouses;

list of all places of study, service and work form the beginning of labor activities;

for each place one must give the name of the organization, the dates of entering and leaving the organization, address of the organization;

list of all journeys abroad (for permanent residence, temporary work, service missions, private visits); for every journey one must give the dates of leaving and re-entering his country, the place of destination and the purpose of the journey;

one must enumerate steady personal connections with foreigners, if any; about each foreigner one must give the name, date of birth, country, workplace, home address and characterize the kind and duration of the relation;

relation to military service and military rank;

own home address and telephone;

data on home and foreign passports.

A worker of the secret department checks the correctness of filling in the questionnaire and passes the questionnaire to the USS. There they check the data and give either the permission to get the security clearance or the well-grounded refusal. It is noteworthy that in the former USSR to have a security clearance was a sort of a privilege, but now citizens of Ukraine get the security clearance unwillingly, since they do not want to restrict their right for emigration. We do not know of any conflicts connected with receiving a security clearance.

Within the topic considered it is reasonable to analyze the conditions of being employed to the Ukrainian Security Service. The conditions under which one may be enlisted to the USS are worded in Part 3 of the law . On the Security Service of Ukraine. . The USS personnel is recruited from the military and from civilians according to contract. About the requirements it is said only that . pretenders are selected from volunteers on the competitive and contract base among those who, by professional and moral qualities. educational level and state of health, are able to efficiently fulfill their service duties. . The criteria of their professional aptitude, in particular, their juridical preparation are determined by the normative documents approved by the USS chairman (Article 19). These documents are not available in the open databases containing normative acts, since this information is a state secret, according to #4.16 of . The list of information items making state secrets of Ukraine. , which contains . information on the forms and methods of the special check-up of members of military units and Security Service, as well as candidates for working in the Security Service. . One may conclude from here that both candidates and operating agents, members of the permanent staff and volunteers-assistants, are checked by special procedures. An oblique mention of such procedures can be found in the Ukrainian Law . On the Operative-Detective Activities. . Article 6 of this law stipulates that one of the reasons for the ODA is ’requests of the competent state organs, agencies and organizations on the check-up of those who must get the security clearance to state, military or service secrets’.

As far as we know, the questions concerning security clearance were never discussed in the Verkhovna Rada (accept when the law on the state secrets was discussed). These questions have never been discussed in the open press too. We also do not know about court trials concerning security clearance or any analytic works devoted to these topics. It seems that if such problems are ever discussed, then it is done in closed agency publications.

We know only of one case when the press touched the question of the demands to those, who are enlisted to the USS. Nikolay Savelyev, a Lviv newsman, published an article in the newspaper . Moloda Galitchina. , where he mocked at the instruction on the recruitment of USS stool-pigeons requiring that they must be . nationally conscious. . Savelyev and the editor-in-chief were interrogated in the USS in connection with this article. The Kharkiv Group requested the Lviv USS, asking to explain which was the legal base of this interrogation, and they answered to us explaining that a criminal case was started on the disclosure of a secret document, and that they were looking for the channels of the leak from the USS. Later we requested them about the results of the investigation. We got no answer, but we know that the newsmen have not suffered.

It should be noted that the public considers the USS as the least corrupted state organ. People think that USS officers act following the law, whereas the officers of the Ministry of Interior do the contrary. It rumours that if an officer of the Ministry of Interior wants to come to the USS, he must leave his job and work for three years in some other place. It also rumours that telephones of those, who want to enter the USS, are tapped for checking their contacts and getting additional information. However, it is impossible to confirm all these rumours by documents.


II. Recent Developments

16 Have there been any major developments since the previous reports were prepared?

17 Specifically, have there been any new laws or major court decisions on any of these subjects since you wrote the reports? If no new law has been adopted, is the Parliament considering any new law on any of these subjects since the reports were prepared?


During April . September 1999 the situation in Ukraine is mainly determined by the Presidential election campaign, the election will be held on 31 October. The political struggle has become very acute between the executive power, which does the best to guarantee the victory of the acting President, and its opponents. various leftish and left-central political parties that control about 40% of MPs. The right opposition affects the political situation but weakly. The situation is somewhat paradoxical, since the executive power, which waves the banner of democracy and market reforms, uses forcible administrative methods in their campaign, while the leftish forces have to loudly cry for human rights protection and, mainly, the freedom of speech.

We shall regard events according to the topics of the Project.


Security services. Parliamentary oversight

The control of the executive power over mass-media has become almost total: electronic state-owned mass-media are packed with materials praising the current president in the former, Soviet spirit, while independent TV companies, which try to preserve some objectivity and inform about the real state of affairs in the country, thus contributing a discordant note in the praising chorus, are pestered by the authorities, and sometimes are even closed. Agencies of the Ministry of the Interior, the USS and the tax inspection are actively used in the process. For example, four radio and TV companies in the Crimea were closed under far-fetched pretexts; the TV company NOA was regularly reporting the parliamentary sittings after all state-owned TV companies stopped to do it; now the company. s bank account is arrested; Kharkov TV company . Simon. transmitted a feature about Kuchma. s rival Marchuk and got its TV transmitter confiscated. Several analytic telecasts were stopped. On 5 May the direct radio transmission of Parliamentary sittings was terminated. Several scores of cases are known when the offices of mass media and similar firms, which support Marchuk and Moroz, the main Kuchma. s rivals, were sealed by the tax inspection or the directorate for struggle with organized crime. These methods of suppression of the opposing press are used fairly often. As a just assessment, on 5 May the Committee of protecting pressmen (USA) listed Leonid Kuchma as number 6 out of ten enemies of the free press, side by side with Slobodan Miloshevich, Tzian Tzemin, Fidel Castro, Lorant Cabila, Alberto Fuhimori and Hosni Mubarak. In our opinion, this is an exaggeration , because the freedom of speech in Belarus, Kazakhstan and Uzbekistan is violated much more brazenly, although Kuchma. s administration well deserved the title of an archenemy of the freedom of speech.

The main opponent of the executive power appeared to be the Parliamentary committee on the freedom of speech and information, headed by socialist Chizh. The Committee managed to cancel the Edict No. 1033 of 16 September 1998, which we described in the previous report. As a result, the monopolistic Ukrpoligrafizdat, which covered almost all publishing houses and printing facilities of the country, was disbanded. More than once the Committee defended the repressed mass-media, initiated parliamentary investigations of the freedom of speech abuses, organized the parliamentary hearing on the topic . The informative policy of Ukraine: present state and prospects. . This hearing was held on 11-12 May, and the conclusions were summed up in the resolution of the Verkhovna Rada. On 23 May the Verkhovna Rada directed the Appeal to the Council of Europe, OSCE, international parliamentary organizations and governments of the European countries concerning the alarming situation in the information space of Ukraine, with the description of numerous facts of brazen abuses of the freedom of speech by the executive power. The Verkhovna Rada declared that it . must act as the guarantor of the freedom of speech in Ukraine and the guarantor of fair election of the President. . It should be noted that the MPs and experts participating in this hearing expressed not only the protest against the abuses of the freedom of speech, but the alarm concerning . the absence of the adequate legal regulation of the information sovereignty and security in Ukraine, as well as preventing the use of achievements of scientific and technological progress by some juridical and natural persons. .

As Evgeniy Marchuk, the former USS head, declared in his interview to the UNIAN press agency on 8 April, . there are many cases, when the USS, General Prosecutor. s office, the Ministry of Interior and the State tax inspection interfere into political battles, thus discrediting the law-enforcing agencies. . Marchuk remarked that now there exists no efficient system of the parliamentary and public control over the law-enforcing agencies, which leads to the appearance of . the dangerous phenomenon that dissolves the lawful boundaries of the special service activities. . In the end of June Grigoriy Omelchenko, an MP and a former USS officer, exhibited a document classified . Top secret, personal. and addressed to Vladimir Litvin, the first assistant of the President. This document was signed by Leonid Derkach, the USS chairman, and titled . On the situation in the information sphere in Nikolaev region. . The document informs which mass-media in Nikolaev region may support the President, from the national channel . Inter. down to local newspapers, which local media must be paid by money or services to make them take the President. s side, which pressmen prefer Marchuk or Moroz, which mass-media manifest . a certain commercial interest to the elective headquarters of Marchuk. for extending their pre-elective agitation. Two days later the pro-presidential newspaper . Fakty. (printed in 1.5 million of copies and being sold very cheaply) published the interview with Yuriy Zemliansky, the first deputy head of the USS, who said that the USS is not involved in politics and will never be involved, that the USS never gathered compromising materials on the members of the opposition and is not going to. As to the mentioned document, he explained that in this case they checked the entire technological cycle of work with secret documents, wishing to find out possible channels of leakage of information; non-secret informative materials were used and classified as top secret, the document was given the ample situational attractiveness. The trap worked, the document leaked, and now the special investigation will show where it happened.

Omelchenko has publicly declared that he does not believe the explanation; moreover, if to believe the explanation. it follows that the USS deliberately carried out a large-scale political provocation, in which top state officials acted. Such actions are certainly illegal. Besides, Omelchenko has declared that an attempt at his assassination is planned, and that the USS takes part in gathering information about him. He passed all the related materials to the General Prosecutor. s office. The USS, in its turn, declared that all this is a pack of lies.

B. Wiretapping, electronic surveillance and the Internet

On 27 June 1999 a. Presidential Edict No. 737/99 . On licensing of some kinds of entrepreneurial activities . was issued, which, for the protection of state interests in the sphere of communication, ruled that the activities concerning the services in transferring data in networks of common use may be carried out only after obtaining a license. One of the conditions for getting a license is that . the subject of this entrepreneurial activity shall provide special technical facilities for recording information passing through the communication channels. . Earlier, on 14 December 1998, the President issued the edict . On the measures directed at strengthening the control over the development, production and sale of technical facilities for the secret obtaining of information. . This edict prohibits the development, production and sale of special technical facilities (including the sale of those of foreign make) for intercepting information from communication channels and other facilities for secret obtaining of information. Such activities are permitted only after getting licenses given according to the procedure stated in Article 4 of the Ukrainian law . On entrepreneurial activities. . In the middle of January 1999 the Verkhovna Rada adopted an appendix to this law stating that such licenses can be given only by the USS.

Thus the USS wants to control the sale and production of the special facilities, while Edict No. 737/99 obliges all providers of the information networks, such as the Internet, cellular and mobile telephone networks, to buy the needed facilities. It is obvious that the USS prepares to implement a project similar to the Russian NI?I, which demands from each provider to supply the Federal Security Service (FSS) with the needed software and hardware, including a reserved communication channel, in order to enable the FSS to intercept any message of any customer of the provider. The USS, as well as their Russian counterparts, wants the providers to pay for this control from their own pockets. Yet, on 7 September the Verkhovna Rada rejected this Edict together with the draft of the law aimed to change Article 4 of the Law . On entrepreneurial activities. . The score of votes was quite convincing: 252 were against the change and 20 were for it. Thus the USS plans has not found legal support.

The political situation now made the oppositional leftish forces, such as communists, socialists and such, vote against this Edict, because they were afraid to give the executive power a new weapon against themselves, such as wiretapping, intercepting telephone conversations, fax communication, e-mail, etc.

One should mention here about the draft of the Law . On Information Sovereignty and Security of Ukraine. . It could have been treated as a curiosity if it had not been approved in all instances and had to be presented at the plenary meeting of the Verkhovna Rada for the final approval. The main idea of the draft, whether the authors wanted it or not, is to implement the complete state monopoly for information. For example, the provision of the information sovereignty demands . the legal definition and guarantees by the state of the strategic directions of development and protection of the national information space and integrated information politics. (Article 2), though it seems obvious that the main task of the state is to encourage the diversity of information and political attitudes, since decisions should be taken on the base of a wide public discussion. It seems that the state must tend to weakening its control in the information sphere, but the draft affirms the opposite: . the state is the guarantor of the entirety of the national information space on the basis of the integrated state policy determined by the laws binding to all participants of the information activities, regardless of the form of property, with the state owning all leading objects of the national information space and affecting the regulative influence on the social relations in the information sphere by using its property and economic levers. (Article 2). The draft is spanned with the idea of protecting the information security understood as . the ability to protect the most important interests of citizen and state, thus excluding the possibility of damage because of incomplete, untimely or uncertain information, because of negative consequences of the functioning of information technologies or as a consequence of distributing information, prohibited or limited to distribution by Ukrainian laws. (Article 3).. One can see that the state is again above a citizen, and the state dares to define which information is uncertain or distorted to be prohibited for distribution. The draft introduces the concept of . national information resources of exclusively state importance. (Article 10), to which the draft relates the resources that . may essentially influence the state of the national security of Ukraine& and its information sovereignty. . The draft recommends the state to redeem such resources if they appeared in private property, and the owners of such resources that are not redeemed yet has the duty . to guard and preserve such resources and use them only with the account of the rulings of the Ukrainian laws. . It is astounding that so many instances could approve this draft.

C. Access to Information and State Secrets

Access to the information on the activity of power bodies and other official information is becoming more and more limited because of the severe control over mass media, especially those of the opposition. So, out of 833 Presidential Edicts signed from January to July, 24 are not published. In the corresponding database these Edicts are represented by the number, the date when the Edict was signed and the remark . Not for print. . What do these edicts order, which decisions are taken on behalf of us, why must they not be published? On the other hand, according to Article 57 of the Constitution of Ukraine, any . normative and legal acts determining rights and duties of citizens and not made public in the legally stated procedure, are null and void. . One may only hope that the guarantor of the Constitution will not violate this article.

On 13 March, 1999, the President signed Edict No. 250/99 . On the changes in the system of central organs of the executive power in Ukraine. , according to #1-b of which, the State Committee on state secrets and technical protection of information must be liquidated, and its functions and rights are passed to the USS.

D. Right to a Fair Trial when Official Secrets are Involved

In the previous report we described the case connected with closing the newspaper . Politika. . On 6 October , 1998, Pecherskiy district court of the city of Kyiv considered the claim of the deputy of the General Prosecutor and ruled to stop publishing the newspaper . Politika. . It was done because the newspaper published the article written by the editor-in-chief Oleg Liashko and titled . Spy novel-2. , which contained information making state secrets. On 12 January 1999 Piotr Shevchuk, the chairman of the Supreme Court collegium in civil questions, protested against the ruling of Pecherskiy district court, so the case had to be reconsidered. On 9 February Piotr Shevchuk suspended the decision of banning the newspaper. The newspaper began to appear again.

The case of banning the newspaper according to the claim of the General Prosecutor. s office was reconsidered in Moskovskiy district court. On 20 May this court suspended the publication of the newspaper by the same reason as before. The cassation complaint was not satisfied, on 23 June the Kyiv city court confirmed the decision of the district court. The newspaper handed the complaint to the Supreme Court, which has to consider the case soon. The newspaper has not been published since 23 July.
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