war crimes in Ukraine

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Some legal issues regarding the work of the Security Service of Ukraine

Yevhen Zakharov
Freedom of information and the right to privacy in the context of access to archival material regarding political repression in the USSR and how investigative operations which infringe human rights comply with case law under Article 8 of the European Court of Human Rights

In the time available to me for this talk it is impossible to cover all that I would like to, and I will therefore name some human rights issues linked with the work of the SBU [Security Service], only delving to a minimal degree in their essence.

Firstly, SBU is at present both a security service and a law enforcement agency. In my view this dualism needs to be removed. However the main areas of activity of the SBU at present – counter-intelligence, fighting terrorism and corruption only deepen it. We have a doubling up of the functions of law enforcement agencies which is not to the State’s benefit. I believe that the SBU should gradually turn into a security service and its law enforcement agency functions – detective inquiry, criminal investigation, etc – should over time be transferred to other law enforcement agencies.

Secondly, the mechanisms for control over the activities of the SBU in the light of PACE Recommendations №1402 (1999), №1713 (2005) are inadequate. I would point out just one of the many aspects of this issue. By law the SBU should provide an annual report on its activities to the profile parliamentary Committee on Issues of Defence and National Security. However these reports have never been made public and nobody knows anything about the Committee’s reaction to them. In my opinion, these reports should be published, at least their open part which does not constitute State secrets, and the material from discussions about the activities of the SBU in the Verkhovna Rada should also be available. The same applies to the SBU report which is sent to the President.

In the third place, legal regulation of investigative operations which infringe the right to privacy does not comply with judgments of the European Court of Human Rights under Article 8 of the European Convention. Ukraine has already lost one case in the European Court over a violation of Article 8 (Volokhy v. Ukraine) and will lose many others since there are very weak safeguards against abuses during interception of information from communication channels. The Law on Investigative Operations has been changed many times yet amendments have never addressed these safeguards. These investigative operations may be applied when dealing with grave and especially grave crimes. A simple comparison of the number of people convicted of grave and especially grave crimes with the number of permits to intercept information indicates an extremely low level of efficiency of the operation divisions’ work. Is that perhaps why these statistical data have been classified?

In 2002 40,000 permits were issued; in 2003 in the smallest oblast - Chernivtsi, there were 823 permits. During the first 9 months of 2005, according to the then Prosecutor General Sviatoslav Piskun, 11,000 permits were issued, while he stated that in only 40 cases was the data used. According to figures from the Supreme Court, in 2005 15,000 permits were issued and over three years this figure rose to over 25,000 in 2008  and approximately 20,000 in 2009. This is far higher than in European countries where the number of permits does not normally exceed one thousand per year. According to the Supreme Court, in 2008 the SBU made 8 thousand 323 applications to the court for communication interception warrants, this being a third of the overall number of such permits. At the same time, on average the SBU each year completes investigations into no more than 900 criminal files of which no more than 700 reach the court.  It would appear that over 7.5 thousand warrants are received not in order to investigate criminal cases and the question must arise what the purpose is of such measures? Is this not too many for the prevention of crimes?

I would note in this context that the monitoring of telecommunication carried out by the SBU is not based on law, and in the absence of a base law on personal data protection seriously jeopardizes the right to privacy. I would mention also that no case on unlawful wiretapping of high-level politicians’ conversations has yet to be investigated.  It is asserted that monitoring of Internet traffic is carried out in accordance with the Law on Investigative Operations, yet this is clearly impossible since such monitoring is general and not based on an individual approach. It can thus not be based on investigative operation cases initiated and a court warrant, as demanded by legislation. It becomes clear that there are simply no legal grounds for such investigative operations. They implement secret instructions which are clearly not in keeping with democratic standards.

The same applies to obtaining court permits for investigative operations. This is undertaken in accordance with Cabinet of Ministers Resolution No. 1169 from 26 September 2007, while the relevant procedure should, according to the Constitution and the European Convention, be passed as a law. For this reason on 16 January 2009 the Kyiv District Administrative Court issued a separate judgment which ordered the Cabinet of Ministers to draw up and submit to the Verkhovna Rada a draft law on the Procedure for obtaining a court order to carry out measures which temporarily restrict human rights and on use of the information obtained. However the instruction in this judgment has still not been carried out.

If one compares Ukrainian legislation and European Court of Human Rights judgments on Article 8 regarding control over communications, one may make the following conclusions:

– These measures should be exclusive and applied only in extreme cases where it is impossible to obtain the information any other way, and the law should clearly define the list of crimes where investigative operations may be used. Indication that this involves grave or especially grave crimes committed or being planned is too broad a range of crimes. There are virtually no checks in Ukrainian practice as to whether it is possible to obtain information by other means;

– There needs to be independent control over such a method: its use only on the basis of a court warrant, control over the use of the material by an independent personal data protection body. In Ukraine there is no such body, just as there is no base law on personal data protection, and there is no clear regulation on the procedure for using information obtained.

– The period during which communications are intercepted should be clearly defined by law. There is no such definition in open Ukrainian legislation where the issue is regulated by secret internal instructions, this being unacceptable.

– The person should be informed after their termination that surveillance measures were used against him or her. This makes it possible to appeal the grounds for such measures where this does not breach the investigation. In Ukraine this is possible only when reading the material of a criminal file after the conclusion of the pre-trial investigation and even then with certain exceptions. In practice, over 80% of those affected do not even guess that the law enforcement agencies are thus intruding in their private life.

An effective mechanism against abuse can be an annual public report on the use of such investigative operations. Reports like this are published in the USA, Canada and many European countries. Such a report could contain the following data:

–       the number of investigative operations initiated; the number of investigative operations on the basis of which criminal investigations were initiated;

–       the number of criminal investigations initiated; the number of cases brought to the court and the number of those cases where the person was convicted;

–       the overall number of applications for court sanctions and number of applications from each law enforcement body carrying out investigative operations; the number of permits obtained to intercept communications and illicit searches, as well as the percentage used as proof in criminal proceedings;

–       the number of searches and removals of documents and property carried out by SBU officers

–       the number of detentions carried out by SBU officers

–       the number of cases where surveillance is imposed on individuals

–       the number of extraditions carried out by SBU officers

–       generalized information about other investigative operations carried out by the SBU.

This information will give a real picture of SBU activities and make it possible to see the effectiveness of measures aimed at investigating crimes but which limit human rights. It will, finally, enable an assessment of the balance between limitation of human rights and fighting crime. At present it is clear that there is no such balance, with limitation of rights, as previously, dominating and often undertaken without real public need.

Even generalized data on investigative operations are in the List of Items of Information constituting a State Secret. This information was made a State secret in August 2005 at the initiative of the SBU which has supposedly in recently years been publicly expressing its support for implementing democratic standards in its work. A start would therefore be the removal from the List of Items of Information constituting a State Secret Item 4.4.8: “Information on statistical figures for investigative operation, counter-intelligence or intelligence activities making it possible to carry out a quantitative assessment of operational forces and measures used for carrying out this activity but which don’t reveal the targets of such measures”.

Fourthly, a key issue is that of openness of information, freedom of exchange of information. Francis Fukuyama in his book “Trust” convincingly demonstrates that in the contemporary world it is those societies which are open to what is different that are successful. The most successful country in this sense is the United States of America where there is the greatest degree of freedom of information exchange, and accordingly the most scientific and cultural achievements. In Ukraine there is a pronounced trend towards restricting access to information and freedom of information exchange under the pretext of protecting information security. The very concept of information security is not clearly defined by law, is meaningless and what exactly is being protected is basically unclear. We must acknowledge that freedom of information in Ukraine is too restricted and is constantly violated. There is no developed culture of openness which is understandable given the unfortunately legacy from Soviet times when absolutely everyday was classified as secret. Too much information is in my view now also classified unwarrantedly.

It is also clear that neither in the Regulations passed by Resolution No. 1893 from 27 November 1998 on rules for working with documents stamped “For Official Use Only”, nor in the practice of its application is there any regard for the well-known international standard with respect to freedom of information - the information is classified, not the document. The restrictions must apply to the specific information, not the document as a whole. For example, according to VII..2 of the Recommendations (2002) of the Committee of Ministers of the Council of Europe from 21.02.2002 “On access to official documents”, “If a limitation applies to some of the information in an official document, the public authority should nevertheless grant access to the remainder of the information it contains.”

The same situation applies with legal regulation regarding State secrets. In order to implement this standard, amendments are need to the Law on State Secrets. The first paragraph of Article 15 of this Law on classifying and declassifying material states that “the classifying of a material medium is carried out by assigning the relevant document, product or other material medium of information a secrecy stamp”. Only texts containing State secrets must be classified, not the document as a whole. For this the name of Article 15 must be changed and its first paragraph changed to read: Article 15: Access to material media of information (a document) which contain information which constitutes a State secret.

Items of information constituting a State secret shall be classified by assigning the relevant parts of the document, product or other material medium of information a secrecy stamp. The public authority, authority of the Autonomous Republic, bodies of local self-government, enterprises, institutions or organizations should nonetheless be provided with other information contained in the document which is not classified.


We would note that the current Law on State Secrets does not contain a maximum time frame for classifying information. Article 13 § 2 of the Law makes it possible for the period during which it is classified to be extend when it runs out, while paragraph three allows the President on his or her own initiative or on the basis of a proposal from public specialists on issues involving State secrets to extend decisions on classifying information. This leads in practice to information being kept secret for 40, 50 years or longer. The law needs to establish a maximum period – no more, say, than 30 years. Then paragraph three of Article 13 could read as follows:

The period during which information is classified shall not exceed 30 years.

It is absurd to keep secret all information about the political repressions of the 1960s to 1980s. The maximum period for classifying information throughout the world is from 30 to 40 years. Why should we keep such old archival material secret?

Fifthly, there are also other controversial issues linked with the declassifying of archival materials pertaining to political repression in the USSR. We would note that this material was created before 1991 in another State, the USSR, and cannot properly speaking be classified as State secrets of Ukraine. The stamps “secret”, “entirely secret” and other stamps restricting access on these documents are not stipulated by any Ukrainian law (and the exercise of the right to information according to Article 34 of the Constitution may only be restricted by law). These stamps were introduced in the USSR by Instruction No. 0186 which was itself secret and not on open access.

Normative acts of the Soviet period are only valid in Ukraine where they do not run counter to the Constitution. The given Instruction clearly breaches it and cannot be applied. Therefore refusals to provide information and access to archival files with Soviet stamps restricting access are entirely unlawful.

It is clear that all documents classified as secret by the Soviet regime need to be declassified.  There is no sense in independent Ukraine in keeping any of that material secret. And the information which should remain secret can be given the stamps “top secret” or “particularly important” in accordance with the Ukrainian Law “On State Secrets”.

During 2009 approximately 16 thousand archival documents in the SBU Archives were declassified, this being only a small percentage of the overall number of documents awaiting declassification. The process of opening up the archives must be continued especially given that President Yanukovych has declared European integration a main priority.  On issues of memory, access to information about political repression, etc, European consciousness has long had a clear position, formulated in numerous resolutions of the European Parliament, Parliamentary Assembly of the Council of Europe, PACE Committee of Ministers and OSCE.

I will not bore you with long quotations, three will suffice:

1. “The wider public know almost nothing about the crimes of the totalitarian communist regimes. In some countries communist parties legally exist and actively function despite the fact that sometimes they have not even distanced themselves from the crimes committed in the past by the totalitarian communist regimes.” (I would note that this directly concerns Ukraine where the Communist Party is erecting monuments to Stalin and billboards with his portraits, and this elicits virtually no protest).

2.  “In order to strengthen European awareness of crimes committed by totalitarian and undemocratic regimes, documentation of, and accounts testifying to, Europe’s troubled past must be supported, as there can be no reconciliation without remembrance”

3.  “access to documents that are of personal relevance or needed for scientific research is still unduly restricted in some Member States; calls for a genuine effort in all Member States towards opening up archives, including those of the former internal security services, secret police and intelligence agencies”

There are some specific problems in this question. The leadership of the SBU Archives stated on many occasions during 2009 that access to the archival criminal files of those people repressed in the 1920s – 1950s who had not been rehabilitated were open. This needs to be recognized via an internal normative act within the SBU since in some regional SBU archives access has been denied.

Archive workers also refuse access or do not allow copies to be made of documents of a procedural nature from archival criminal files and other archival files on the grounds that there are names and other personal data about those who took part in persecution.

Such data is either secret or constitutes confidential information about an individual. According to Article 16 of the Law on the National Archival Collection and Archival Institutions, access to such documents is restricted for 75 years unless otherwise envisaged by law. On the basis of this norm, the archives refuse to grant access to the document as a whole, violating the above-mentioned principle of classifying the information, not the entire document. This practice must be changed. Archivists should provide access to the open access part of the document, making a copy of it, and blotting out the data not to be divulged. It is much better to create an electronic copy, removing the information which may not be accessed.

Yet here the question arises of how justified in general is it to refuse access to confidential information about a person who took part in repression. After all each victim has the right to know the names of the people who persecuted him or her, and the public have the right to the truth and particularly to maximum information about the activities of a repressive regime. They have the right to identify people guilty of human rights abuse..

We should note that the Law on State Secrets does prohibit the classifying of information about human rights violations and abuse by public authorities and their officials. The more general principle of habeas data should apply – each person has the right to know archival data collected on him or her. This right also applies to officers of the Security Service. If the person has died, the right is extended to their relatives, who should also have the right to information about the fate of a person who disappeared as the result of Security Service activities

We would point out that in most post-communist countries this collision between freedom of information and the right to privacy is mainly resolved in favour of freedom of information. For example, in Germany access to files of the operational lists is open and 1.7 million Germans have made applications to see their dossier. The large scale numbers indicated the overcoming of silence and there were no excesses as a result.

In my view the existing approach to this issue needs to be reviewed since in Ukraine this collision is in the main resolved in favour of retention of secrecy regarding the activities of the punitive bodies which is not in keeping with the European approach. A balance needs to be found between those key rights by finding a solution appropriate for our country after carrying out the relevant research.

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