war crimes in Ukraine

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Protection of personal data and the Security Services (MARCH 1999 REPORT)




1. Is there a Data Protection law ? When was it adopted? Was it based on the current European Union Data Protection Directive or some other model?

If there is no such law, is there draft legislation on the issue or public discussion about the need for such? If a draft bill exists, please summarize it.

2. Does the law explicitly discuss data collected by or kept by the security services? If not, does it contain provisions that would apply to the security services, even though the services are not explicitly mentioned? For example, are there provisions concerning data in the files of law enforcement agencies that would also apply to the security services?

Restrictions on Collection of Data:

3. Are there prohibitions on collecting personal data that apply to the security services? Does the law outline the purposes for which information may be collected? Are there specific provisions concerning creation of computer data bases?

Restrictions on Keeping or Using Data:

4. Are there requirements limiting when information may be kept and if so what are they? Does the law limit how long such personal data may be kept by the security services? Does it state when data must be destroyed? or when it must be archived?

5. Does the law restrict access to the files of the security services? If so, what are the exceptions, who is entitled to access to the files and for what purposes? Are there mechanisms to protect the confidentiality of the files?

6. Does the law address sharing of personal data by the security services with other state agencies, including law enforcement agencies? Does it address the sharing of information by the security services with other countries?

7. Do parliamentary commissions have access to personal data in the files of the security services? Are there protections against misuse of such data by members of Parliament?

Access by Individuals to Personal Data about themselves:

8. Does the law provide that individuals may see data about themselves in the files of the security services? Under what conditions? are there exceptions?

9. What is the procedure for obtaining access to one’s own file.

Oversight mechanisms.

10. Does an ombudsman play a role regarding the right of data protection in security service files?

11. Does parliament play a role in insuring the right of data protection in security service files?

12. Is judicial review under the data protection law available ? Are there court decisions concerning the right of data protection?

13. Have any cases regarding the right of data protection been lodged with the European Commission for Human Rights?

Current Controversies or Problems:

14. Whether or not a data protection law exists, are there any significant controversies regarding the security services and the right of data protection.? Are there other problems which you believe need to be addressed?

There exists no special law on personal data protection in Ukraine, and no drafts of such a law are known to the author. Accordingly, there exist no legal norms on personal data protection in the law on the ombudsman and legal acts regulating the parliamentary activity. The corresponding committee of the Supreme Rada of Ukraine — the one on national security and defense — has no special rights to protect personal data and control the work of security services in this sphere, as well as in any other sphere.

The protection of personal data is guaranteed by Article 32 of the Constitution, which prohibits ‘the collection, storage, use and distribution of confidential information on some individual without his agreement, except in the cases stipulated by law and only in the interests of the national security, economic prosperity and human rights protection.’ Article 32 also guarantees the right of every citizen of Ukraine ‘to get acquainted with the information on himself stored in state bodies, or self-rule bodies, establishments and organizations, provided that the information is not a state secret and is not some other secret protected by law’. Article 32 also establishes guaranties of the court protection of the right ‘to refute untrue information about himself or members of his family and to demand deleting this information and recover material and moral damage inflicted by the collection, storage, use and distribution of this untrue information.’ Article 34 contains restrictions on the freedom of information ‘in order to prevent divulging information obtained confidentially.’ These norms are obviously not extended to apatrides and citizens of other states residing in Ukraine.

Further review of the Ukrainian legislation shows that any norms on the protection of personal data are contained only in the law ‘On information’ adopted as early as in 1992. These norms are rather general, in fact the law contains only principles of the protection of personal data and does not contain the procedures regulating collection, storage, use and distribution of personal data, as well as the access of citizens to the information about them in state bodies and other organizations.

In Article 23 of the law ‘On information’ the information on a person is defined ‘as the set of documented or publicized data on the person’. The main personal data are: nationality, education, family status, religion, health, as well as address, date and place of birth. The sources of the documented information on a person can be documents given to the person and documents signed by this person, as well as the data collected by state and local administration bodies gathered within their rights. Article 23 prohibits collecting information about a person without the person’s consent, except in the cases stipulated by law. Each person has the right to study the information pertaining to him/herself. This information is protected by law.

The access of citizens to the information on themselves is guaranteed by Article 31 of the law. Citizens have the right, in the period of collecting information, to know which data are collected and with what purpose, by whom and with what purpose will these data be used, as well as to have the access to the collected information for checking its validity, completeness, etc. State bodies and organizations, bodies of local and regional self-rule, whose information systems contain information on citizens, are obliged to grant this information without objections and free of charge on demand of those whom it describes, except in cases stipulated by law; the organizations must protect this information from a non-sanctioned access. If such demands are violated, the law guarantees the protection of citizens from the damage.

Storage of information about citizens shall not last longer than it is necessary for the legally established purpose. The necessary data on citizens, which may be collected legally, must be maximally restricted and may be used for the legally established purpose only. A refuse to grant access to personal data, as well as concealment or the illegal collection, storage, use or distribution, may be contested in court or in state bodies of the senior level.

Article 31 contains also the following demand: ‘All organizations which collect information on citizens must, before starting the work, register the corresponding database according to the procedure adopted by the Cabinet of Ministers of Ukraine. This statement seems to be incorrect for non-state organizations, besides the notion ‘database’ is not defined in the law. The formulation ‘citizens have the right’ is fuzzy. It follows from the context that only Ukrainian citizens have this right, which narrows the range of action of the law excluding apatrides and perhaps citizens of other states. It should be noted that the law ‘On information’ has more drawbacks of this kind: Article 7 states that the subjects of information relations are citizens of Ukraine, juridical persons and the state, as well as other states, their citizens and juridical persons, international organizations and apatrides, whereas Article 9 states that the right for information is granted to all citizens of Ukraine, juridical persons and state bodies, while other subjects of information relations are not mentioned. Similar slips are made in Articles 38, 42, 50, 51.

It should be noted that leading Ukrainian journalists received with hostility the above-mentioned statements of Articles 23 and 31 since journalists considered them a threat to the activity of those who analyze social processes and the activity of top state executives, for which they must collect some information. (‘The Forth Column’ — Kyiv: Agency ‘Ukraina’, 1997, pp. 29-34). There was a precedent in 1996 when the authors of some critical materials on the activities of one central Ukrainian elite were prosecuted and blamed of collecting personal information without previous consent of the person. The compensation demanded by the plaintiff was enormous. The authors of the publication saved themselves, proving that they had used the well-known reference-book ‘Who is who in Ukraine’.

We do not know of any trials against journalists, concerning divulging of information on private life of claimants.

In Article 23 of the law ‘On information’ the notion of information on some person is defined as a set of documented or publicly known data on the person. The main data on a person, termed as ‘personal data’ in Article 23, is nationality, education, family status, religion, health, address, date and place of birth. The sources of such documented information on a person can be documents issued in the person’s name or signed by the person, as well the data collected by state bodies and bodies of self-rule within their legal rights.

Article 23 also contains the prohibition of collecting data on a person without the person’s previous consent, except in cases stipulated by law. Everybody has the right of access to the information collected about this person. Such information is protected by law.

On 6 November 1997 the Constitutional Court (CC) gave an interpretation of Article 23, responding to the application of Konstantin Ustimenko, an inhabitant of Dnepropetrovsk. The plaintiff was put on the psychiatric cases list in 1988-1990, which fact restricted his rights in occupying some jobs. Several times he addressed the court and prosecutor’s office, but they refused him to get full information on the reasons of putting him on the list and showing him his hospital card. According to the cited CC directive, ‘not only the collection, but the storage, usage and distribution of confidential information without his/her consent is prohibited, except in cases stipulated by law, and only in the interests of the national security, economic prosperity, protection of human rights and freedoms’, and ‘each person has the right to know which data and with what purpose are collected, how and with which purpose they are going to be used, ... as well as the right to get acquainted with the information collected about him by state and local administration, establishments and organizations, if these data do not make a state secret or another kind of secrets protected by law’ (‘Pravo Ukrainy’, No.12, 1997, pp.111-112). Thus, the CC extended the prohibition of Article 23 to all main forms of information processing.

This Directive of the CC was sharply criticized as aimed at the restriction of rights of journalists. The known analytical weekly ‘Zerkalo nedeli’ printed the following comment to the Directive: ‘Now the people in power got still another convenient opportunity to step on the tail of newspeople... It is not impossible that the next step of state officers will be encrypting their names, so everyone who will address them by name will be handcuffed and brought to the nearest precinct, for third-degreeing from them the source of the secret information’. (‘Zerkalo Nedeli’, 21 November, 1997). At the conference ‘Mass media and society: aspects of interaction’ a group of participants approved the appeal in which it was noted that the CC interpretation ‘not only completely devoids journalists of the right to inform the public on the activity of any politician, but finally destroys the freedom of speech in Ukraine’ (cited from ‘Legal Bulletin for mass media’, November-December, 1997, No.5, p.5). On 24 November at a press conference Ivan Timchenko, the Chairman of the CC, declared that the interpretation of several articles of the law is not aimed at restricting journalist’s rights; the purpose of the interpretation was to concord the articles with the Constitution of Ukraine, which contains a wider treatment. Journalists have the right to check and verify information, for example, on candidates to the Parliament, since, having made public the information about themselves after entering the political struggle, a candidate ‘allegedly gives his consent for further disclosing this information’. The CC head confessed that ‘there is no hard and distinctive lines between confidential information, which a private person would be unwilling to disclose, and the information known publicly’ (Ibidem, p.5).

The introduction of identifying numbers for all natural persons residing in Ukraine during 1997-1998 should be noted in this context. In the actual fact, this number is aimed for using as a single universal code of a person in the creation of the United Automated Passport System (UAPS), as it was stated in the ‘Concept of creating the UAPS’, adopted by the Cabinet of Ministers of Ukraine in the beginning of 1997 (Directive No.40 of 20 January 1997).

According to the ‘Concept’ this code will be used in all documents, from the birth certificate to driver’s license. A central storage for these data has been already created in Kyiv, and this storage is connected in a network with all regional storages. This network is used by the tax inspection which analyzes the reports of juridical persons and private businessmen through a document that contains names of all workers, their pays and their identification numbers. Nonetheless, the UAPS is ordered by the Ministry of Interior, and representatives of all security services enter the coordination commission headed by the head of the National Bureau of investigations Vasiliy Durdinets. For the time being nothing is known of how the UAPS is used by security services. In our opinion, the introduction of the unique state code will enable state agencies to retrieve personal data on a person without the latter’s consent, which abuses the constitutional right for privacy and contradicts the discussed Directive of the CC.

The exceptions enabling security services to collect information on an individual without his/her consent are related, first of all, to the criminal activity of the individual and are stated in the Ukrainian laws ‘On operative and detective activities (ODA)’, ‘On organizational and legal basis of struggle with organized crime’ and other legal acts.

According to Article 8 of the law ‘On the ODA’, officers realizing the ODA have, in particular, the right:

to demand, collect and study documents and data characterizing the way of life of certain individuals suspected in preparing or committing crimes, to analyze the sources of their income;

to intercept information from communication channels and apply other technical facilities for obtaining information;

to control, by selection of certain key features, telegraph and postal messages;

to observe the suspects in public places with the application of audio- and video- recording, using optical and radio equipment, as well as other technical facilities (laws of Ukraine, Kyiv, Yurinform, 1996, p. 76-77).

According to Article 9 of the Law ’On the ODA’ in each case when there are sufficient reasons for starting the investigation, a special file is started (except when persons are checked for their trustworthiness to work with state, military and service secrets). If after six months no data are found to confirm that the person under investigation is guilty of the crime which had been investigated, then the special file is destroyed. All the information obtained as the result of the investigation concerning the private life, honor and dignity should not be kept and must be destroyed unless it concerns illegal actions. Article 9 of the Law stipulates also the right of Ukrainian citizens and other persons to receive a written explanation about the restriction of their rights and liberties from the organs that conduct the ODA.


Have there been any major developments since the reports on Security Services, Wiretapping, Parliamentary Oversight, and Access to Information (including Freedom of Information, Classification of Information, State Secrets, Files of the Former Secret Police, and Public Disclosures of National Security Information) or the Internet and the Right to a Fair Trial when Official Secrets are Involved were prepared?

Specifically, have there been any new laws or major court decisions on any of these subjects since you wrote the reports?

Is the Parliament considering any bills on these subjects?

Have there been any significant public scandals or controversies regarding these issues?

In the period from October 1998 to March 1999 the situation with human rights in Ukraine substantially deteriorated. Tendencies in the state policy threatening human rights, which had been observed earlier, became more dangerous, in particular:

administrative pressure of the state on the individual increased everywhere and especially in the economic sphere;

political struggle turned to the destruction of political forces opposing the President and government, special services were used in the process;

making more secrets, restricting access to information, which earlier was introduced on the sly, now has been fixed in legal documents;

controlling mass media became more shameless and severe.

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


A.  Security services. Parliamentary oversight

Political processes in Ukraine in the considered period were a kind of preparation of the future presidential election in October 1999; upon the whole they may be characterized as a set of measures for guaranteeing the second victory of President Kuchma. The unprecedented pressure was exerted on the Parliament and the opposition party ‘Gromada’ It resulted in depriving of deputy immunity for Pavlo Lazarenko, the leader of this party and the former Prime-Minister of Ukraine. A loud propaganda campaign was instigated in mass media, where Pavlo Lazarenko before the court decision was called a criminal, a thief, etc. The General Prosecutor’s office that carried out the investigation could not demonstrate any convincing proofs of Lazarenko’s guilt to the Supreme Rada. Nonetheless, he was deprived of deputy immunity and saved himself from detention by escaping to Greece and then to the USA, where he asked for a political refuge.

Agencies of the Ministry of Interior were activated in the Crimea, where under the slogan of the struggle with corruption and non-admitting criminals to power, several deputies of the Supreme Soviet of the Crimea, mayors of several towns and a number of other top executives were repressed. Upon the whole the situation in the Crimea has become such that the real power belongs to militia. Yuri Kravchenko, the Minister of Interior, promised that massive checks, similar to those in the Crimea, will be carried in Kyiv and all major regions of the country. It should be noted that any state official as well as any businessman have to violate the law, but the law-enforcing measures are applied to the chosen few. In general, since long ago it is impossible to separate politics and criminal activities, they mutually complement each other. The USS agency is used in the cases concerning the organized crime, where the amount of the stolen is especially large. For an illustration, we can mention an instructive story about the privatization of one of the giants of Ukrainian industry — Nikolaev alumina plant. Here collided the interests of various financial and industrial groups that tried to get the share holding as cheap as possible. The USS several times started and closed the criminal case on the illegal privatization.

The Council on national security and defense of Ukraine prepared a draft of the law suggesting the obligatory declaration of the financial sources by founders of mass media while registration. The Ministry of Information additionally issued the order which prohibits, contrary to the law ‘On press in Ukraine’, to register mass media by physical persons.

Special services were used for closure of opposition newspapers. We shall describe the closure of newspaper ‘Politika’ in Section D. Aleksandr Gorobets, the editor-in-chief of the opposition newspaper ‘Pravda Ukrainy’, was arrested and placed to Kyiv preliminary prison for an attempt to rape a woman-collaborator. The case is more than doubtful. Gorobets completely denies his guilt, his colleges believe that he was framed. The investigation has finished and the case will be passed to court in the middle of March. In Dnepropetrovsk the region prosecutor’s office started a criminal case against Vladimir Efremov, the editor-in-chief of the region newspaper ‘Sobor’ and director of TV-channel 11. Mr. Efremov is accused of financial machinations with very doubtful proofs. At first he was put to the preliminary prison, but under the public pressure this measure was replaced by the signed promise not to leave the city. All the above-mentioned mass media were financed by the party ‘Gromada’.

During the considered period the President’s edict No.1033 of 16 September 1998 was being realized. This edict ordered to create State Joint Stock Companies ‘Ukrainian TV and broadcasting’ and ‘Ukrainian publishing polygraphic association’. The first company, ‘Ukrteleradio’, was formed on the base of the national TV company of Ukraine, national radio broadcasting company and the concern of broadcasting, radio communication and television. All state publishing houses (except two) and all state polygraphic enterprises (56 all in all) were compulsorily united in the second company, ‘Ukrpolygrafizdat’. Many of the comprising organizations lost the status of a juridical person. In the process, region committees of information (former censorship committees) collected and corrected the addresses and polygraphic equipment of a few non-state printing-houses. A Kharkov official who phoned to our organization confessed that this checking was done by the direct order of the Ministry of Information. After giving our address we were checked by the tax inspection which elucidated for which purpose our polygraphic equipment was used. The President’s edict No.1033 and this action can be unambiguously assessed as establishing the control of the executive power over electronic mass media and polygraphic houses before the presidential election.

The Supreme Rada accepted edict No.1033 with hostility, since the Rada assessed the edict as the increase of power on the side of the President and Cabinet of Ministers. On 23 December, 1998, the Rada adopted the Resolution on the President’s edict which was prepared by the Committee of freedom of speech and information. This resolution affirmed, we believe justly, that the edict violates a number of articles of the Constitution and many norms of several laws. The Supreme Rada suggested that the President should cancel the edict, but the edict was not cancelled. Then the Supreme Rada demanded from the Cabinet of Ministers the information on the state of affairs in the information sphere and, having got it, adopted on 16 February another resolution No.430 ‘On activities of the Cabinet of Ministers and other bodies of state power for guaranteeing the freedom of speech and satisfying information demand of the society and development of the information sphere in Ukraine’. This resolution remarked that the mass media and their heads, which oppose the bodies of the executive power, are being persecuted by executive power, General Prosecutor’s office and some courts; the resolution also affirm that ‘the structural reorganization of state television and broadcasting, as well as publishing and polygraphic houses on the monopolistic principles is destructive’. The resolution added that ‘the Supreme Rada did not demonstrate sufficient insistence in the legal provision of the information sphere, in shaping state information policy and sufficient parliamentary control over the activities of the Cabinet of Ministers and other bodies of executive power’. At the same time the resolution criticized hackers, distributors of viruses and pornography in electronic networks (FidoNet was given as an example) and demanded the executive power to control the information sphere. The resolution required to create a provisional special investigating commission of the Supreme Rada for the purpose of ‘investigating the status, character and direction of the measures undertaken by the Cabinet of Ministers, central organs of the executive power and main prosecutor’s office, as well as the court practice concerning the information sphere of Ukraine’. This commission also has to work out suggestions and recommendations as to the improvement of the information sphere. This commission and the USS got the task to investigate the question ‘if there exist information technologies which can be used for creating a harmful psychological effect on man’s subconsciousness’. The resolution also contains an appeal for faster development of the draft on the basis of the state information policy and of laws on information sovereignty, security and related laws.

The tendency to centralize the administration of various security services remains unchanged. An expert of the Parliamentary Committee on national security and defense told the author of the present report that a draft had been prepared of changes and amendments to the Ukrainian law ‘On state secrets’. This law rules to disband the State Committee of protection state secrets and technical protection of information. These tasks shall be passed to the USS. The text of the draft is still unknown to us.

B. Wiretapping

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 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 Supreme Rada adopted an appendix to this law stating that such licenses can be given only by the USS. In the interview General-Lieutenant Vladimir Pristayko, a deputy head of the USS, said that the USS suggested such a procedure as early as in 1991, but these suggestions were not accepted. In 1994 these suggestions were adopted, and the USS gave out such licenses up to December 1997. Later this licensing was abolished and adopted again only in January of the current year, because the scale of spying by non-state structures is growing fast and remains practically unpunished. In 1996 the USS prepared a draft of the law on administrative and criminal responsibility for the illegal use of technical facilities for the secret obtaining of information, but the Supreme Rada has not considered the draft yet. Such licensing also needs to be controlled by the USS because appliances can be developed which emerge waves harmful for man’s health or suppressing his will.

B.  Access to information

Access to the information on the activity of power bodies is substantially limited because of the severe control over mass media, especially those of the opposition. The main tool of the pressure are claims of libel with fantastical sums for recovering moral damage and criminal cases considering slander. According to the data, made public by the former Minister of Justice Sergey Golovaty, 123 persons were condemned on libel charges in 1998, and 7 of them were incarcerated. The number of claims to journalists about protection of honor and dignity is even greater. To our pity, courts very often satisfy the claims, thus making the newspaper and a journalist bankrupt. Vitaliy Boyko, the president of the Supreme Court of Ukraine, said that mass media should not be closed as a result of the lost cases. It is necessary to adopt a law which would regulate the reasonable limits of the recovery for the moral damage; he appealed to the Supreme Court to discuss the question at its plenum. It is noteworthy that Piotr Shevchuk, the chairman of the collegium of the Supreme Court in civil questions, protested against the court decision that forced the newspaper ‘Kievskiye vedomosti’ pay to Yuri Kravchenko, the Minister of Interior, an unreasonably large sum, equal to four million grivnas (about one million of USD).

On 27 November 1998 the Cabinet of Ministers of Ukraine issued document No.1893 ‘Instruction on the procedure of storage, protection and use of documents, files, publications and other hard copies containing confidential information which is owned by the state’. This instruction violates Article 34 of the Constitution which states that any restrictions of the freedom of information must be stated by law, not by mere instructions. The very concept of the confidential information owned by state is defined nowhere and in Article 30 of the law ‘On information’ the bodies of state power and local self-rule are not mentioned as owners, guardians or users of confidential information.

According to Section 2 of the Instruction, central and local power bodies must develop, within six months, and introduce into operation lists all the items of the confidential information owned by state. The documents including this information must be classified as ‘for service use only’ (SUO). The Instruction does not determine who and on the base of which criteria will decide which information is confidential. It is not clear from the Instruction whether the mentioned lists will be made public; the publication will be difficult since each organization can have its own list. Nonetheless, Section 3 of the Instruction prescribes that the demands of the Instruction must be fulfilled not only by power bodies, but also by enterprises, establishments and organizations, regardless of the forms of property. It should be expected that this Instruction will activate the work of notorious ‘first departments’, whose function is to supervise the regime of secrecy.

The lists may contain not only the information, which is created by the power body in question, but also the information which is used by the body (Section 1 of the Instruction). Thus, any information, which got to a state agency may be declared as confidential by the wish of the head of this agency, while the creator of this information will not be informed on the change.

According to Section 5 of the Instruction, documents of organs of the legislative, executive, and judicial power, which were issued since 1991, non-classified, but not published in the official press, may be regarded as SUO.

The conditions of storage, copying and distribution of documents classified as SUO are not less severe than those for documents classified as secret: they must be registered, all drafts and variants must be destroyed, names and even positions of the authors must not be indicated, and so forth (Sections 17-28 of the Instruction).

Representatives of mass media have access to the documents classifies as SUO only after they get a written permission of the head of the organization in each concrete case. The permission is given only by a resolution of the expert commission which must give a written permission on the expediency of the journalist’s access to the document. In fact, the chain of permissions is even longer, because on the output end the first department and similar departments have their piece of the pie. Thus, the probability of getting SUO-classified documents is negligible, taking into account that the responsibility for divulging confidential information lies on the head of the department and not on the journalist.

What is an expert commission and who comprises it, what is its order of activity — is not clear from the Instruction. The text of the Instruction contains some fuzzy indications that the commission contains ‘workers of chancellery, first department and other structural units’.

Section 32 of the Instruction prescribes to regard a package of non-secret documents as SUO-classified, if among these documents there is at least one classified as SUO. Thus, the access is severed to practically any information.

The fear of the authorities before free distribution of information is convincingly reflected by Sections 51 and 52 of the Instruction, which prescribe to destroy SUO-classified documents, if they have no scientific or historical-cultural value or lost their practical value; the destruction must be obligatorily done by grinding into tiny fragments.

To our pity, there were no criticisms or protests concerning this Instruction.

The information processed by the Supreme Court (SC) will be restricted. In the end of February the SC presidium adopted the Resolution on information activities of the SC. According to this Resolution, publication of decisions of the SC plenum, as well as any data analyzing the court statistics or generalizing the court practice is permitted for publication in independent mass media only after getting a written approval of the SC chairman or his deputies. This approval is given only under conditions defined in the agreement between the SC ant this mass medium. The SC head or his deputies consider questions concerning the access to official documents and requests for written or oral information in accordance with Articles 32-34 of the law ‘On information’. Bearers of the requests must reimburse expenditures connected with the fulfillment of these requests concerning the access to official documents and obtaining written information; the size of expenditures is set by the SC presidium.

A.  Right to a fair trial when official secrets are involved

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. The court decision was based on the expertise by a state expert in state secrets. Since Article 46 of the Ukrainian law ‘On information’ prohibits the distribution of such information and Section 1 of Article 3 of the law ‘On mass media (press) in Ukraine’ states that mass media may not be used for the publication of such information, Nikolay Zamkovenko, the chairman of Pecherskiy district court, satisfied the claim.

It should be noted that Section 5 of Article 42 of the law on the press frees the editorial board and the author from the responsibility of divulging the secrets protected by the law, if this information was not obtained in an illegal way. In January 1998 the USS investigation department informed Mr. Liashko that they would not start a criminal case on divulging state secrets, since they did not see corpus delicti in his actions. However, the court did not take this into consideration.

The court ruled to stop publishing the newspaper without representatives of this newspaper. Journalists learned that their newspaper was banned only on 8 December, two months later the court ruling. Certainly, this court session did not try to account objectively of all circumstances of this case; the equality of sides in the trial, any contestibility of sides and elementary right for defense — all this toys of democratic procedure were disregarded.

The decision of the court said that a representative of the defendant did not come to the court session for the second time, although he was informed in the proper time. Since the exact location of the defendant was unknown, the court found it possible to consider the case ‘with the last known location of the defendant’. Judge Zamkovenko directed the subpoena to the juridical address of the newspaper, while its actual address was indicated in any newspaper and could be taken from there.

On 12 January 1999 Piotr Shevchuk, the chairman of the SC 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. However, the first issue of ‘Politika’ in 1999 appeared only on 12 March, since the publishing house ‘Pressa Ukrainy’, that prints all Kyivan newspapers, refused to print ‘Politika’ and editorial board found another printing house, which agreed to print the newspaper, with difficulty.

The case of banning the newspaper according to the claim of General Prosecutor’s office will be reconsidered in Moskovskiy district court.

Parallelly the same judge Zamkovenko considered the case accusing Oleg Liashko in slander and misuse of power for publication in ‘Politika’ four other articles. In these articles he allegedly defamed the acting (at the moment of publication) Prime Minister Vasiliy Durdinets, who is now the head of the National Bureau of investigations; he also allegedly defamed General of militia Ivan Grigorenko, the head of the Odessa Directorate of interior, and one more inhabitant of Odessa.

A.  Draft of the new Penal Code of Ukraine

B.  The adoption of the new Penal Code (PC), which is to correspond to the norms of the international right in the field of human rights, was one of the obligations taken by Ukraine in joining the Council of Europe in November 1995. The work over the draft has been lasting for six years; the draft is approved by the Supreme Rada of Ukraine in the first reading and is prepared for the second one. Toour pity, we must state that the draft is oriented to the further toughening of the former policy retained from the times of the USSR and having repressive character. The comparison of certain parts of the current draft with the operating code shows that the draft is more severe, although it is obvious that making punishments more severe does not affect the growth of crime. The draft contains a large number of articles that regard certain actions as crimes, although they could be considered civil, disciplinary of administrative offences. We shall illustrate it with one example, a sort of dream for tax inspection; this is Article 194 — ‘Dodging from presenting financial documents’.

C.  The draft contains evident anachronisms reminding the ideas of the great leader and teacher of all peoples. Such is Article 108 — ‘Sabotage’ — from the part ‘Crimes against foundations of the national security of Ukraine’ with the purely Stalin’s formulation and the sanction of incarceration from 6 to 15 years with confiscation of property. In what follows we shall confine ourselves to those parts of the PC which are contained in the project ‘Security Services in a Constitutional Democracy’.

D.  In our opinion, Articles 104, 105 and 109 of the part ‘Crimes against foundations of the national security of Ukraine’ restrain freedom of expression without sufficient grounds.

E.  Article 105 ‘High treason’ repeats almost verbatim Article 56 of the operating PC (which, in its term, in many places repeats the Article on high treason from the PC of the Soviet times): ‘High treason, that is an action deliberately committed by a citizen of Ukraine to damage her sovereignty, territorial integrity and inviolability, defensive capability, state, economic or information security of Ukraine; defection to enemy during hostilities or during armed conflicts, espionage, assisting another country or a foreign organization or representatives thereof in subversive activities against Ukraine’… ‘Assisting in subversive activities’ is nothing but ungrounded restrain of the freedom of speech and information: in conditions of the open society a citizen has a natural right to communicate freely with foreign organizations and individuals in any sphere. To refer this to criminal activities is reasonable only in the case when it concerns violence or appeals to violence. The same drawback — violating the freedom of speech and information — has Article 104 ‘Actions to damage territorial integrity and inviolability of Ukraine’: the criminal side of it may be actions of violence committed with the purpose of changing the territory or replacing the frontier line as well as public appeals or distribution of documents appealing to commit such actions. If the word ‘violence’ is not applied, then such actions must be immediately withdrawn from the field of criminal right. That is why Article 104 becomes senseless, since it is impossible to fight separatism with crime opposing means. Article 109 cannot stand criticism either. It concerns espionage, which is ‘collection and transfer, to another state, foreign organizations and representatives thereof, of the information representing state or military secrets’, as well as ‘collection and transfer, by order of foreign intelligence, of other data to damage interests of Ukraine’. From the standpoint of international standards about the freedom of expression collection and distribution of any information, which is not defined as secret, must be regarded as rightful, regardless of the motives of the person who collected information, and, in general, is it rightful, when investigating officers and judges would determine what is in the interests of Ukraine and what is not?

F. Article 304 — ‘Transfer to foreign organizations of information that represents service secrets’ — is incorrect by the same reason. It reads: ‘collection or transfer of information with the purpose of passing it to foreign organizations and their representatives, if this information concerns economic, scientific, technological or other data that represent service secrets, by a person who learned this information in the process of work — is punished by restriction of freedom for the term up to three years or incarceration for the term from two to five years, with the prohibition to occupy certain jobs for the term up to three years, or without the latter.’ It is not clear what kind of information is mentioned in this article, since the Ukrainian legislation does not define what are service secrets. Since nowadays any head of any agency of the executive power in Ukraine may order to classify the information as a service secret, collection of any information in the system of state power and local self-rule may become criminal. The punishments for the actions stipulated in Article 304, are more severe than in the operating PC, which stipulates the punishment of incarceration for the term up to three years or correcting work for the term up to two years or the fine up to five and a half officially established minimal wages.

G. It should be noted that, compared to the operating PC, the punishment is made more severe for divulging state secrets (‘from 2 to 7 years of incarceration with the prohibition to occupy certain jobs, of without the latter’ instead of ‘from 2 to 5 years of incarceration’), for loss of documents containing state secrets (‘from 2 to 5 years of incarceration with the prohibition to occupy certain jobs, of without the latter’ instead of ‘from 1 to 3 years of incarceration’), for the violation of privacy of correspondence, telephone talks, telegraph and other messages sent through technical channels (‘correcting works for the term up to 1 year or incarceration for the same term’ instead of ‘correcting works’). In the latter article a new clause has appeared: ‘committing the same actions by a state official’ with the same punishment: the restriction of freedom for the term up to 3 years, which is absent in the operating PC.

H. A new article has appeared: ‘Encroachment on the honor and dignity of the President of Ukraine’, which establishes that ‘the encroachment on the President of Ukraine while executing his powers or concerning this execution, as well as the slander on the President of Ukraine are punished by the restriction of freedom for the term up to 5 years or incarceration for the term up to 7 years’. As we see it, the article leaves many opportunities for arbitrary accusations and can result in serious violations of the freedom of speech. By the way, it is worth noting that the punishment in the Article ‘Slander’ which is punished in the operating PC by incarceration for the term up to 5 years, is retained in the draft which seems to be an anachronism: in the states, which consider themselves civilized, journalists are not incarcerated even for doubtless slander.

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