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Analysis of the CCU Judgement regarding confidential information

Vsevolod Rechytsky, KHGP Constitutional Law Specialist
Political-Legal Commentary on the Constitutional Court Judgement in response to a constitutional submission from the Zhashkiv District Council (Cherkasy region) asking for an official interpretation of Article 32 § 1, Article 34 § 2 of the Constitution.

Political-Legal Commentary on the Constitutional Court Judgement in response to a constitutional submission from the Zhashkiv District Council (Cherkasy region) asking for an official interpretation of Article 32 § 1, Article 34 § 2 of the Constitution.

It should be noted that from the legal point of view the judgement in question is relatively simple. The Constitutional Court resorted to the simple method of “political syllogism”. It first considered how protected private information about the average Ukrainian citizen is according to Ukrainian (constitutional) legislation. Then it drew the conclusion that public officials and people working in the central authorities and bodies of local self-government are a kind of the same, of ordinary Ukrainian citizens. From then on it was quite simple: if public officials are the same as those who are not public officials, then they need to have the same level of protection of their private life from outside interference as do ordinary Ukrainian citizens. From the outside, all smooth sailing ahead.

Why can this syllogism be considered “political”?  Because it is admissible precisely in the political sense. It is a demonstration of Ukrainian political disingenuousness. In the legal sense such a “syllogism” is clearly unacceptable. Public officials and civil servants are protected from external intrusion with respect to information to a different extent from ordinary Ukrainian citizens. That is the case but elsewhere … in Europe, in the West. In Ukraine however they are … “simply people” At least this is the view to which the esteemed Constitutional Court directs us.

In its Judgement, the Court writes: “A systematic analysis of the provisions of Article 24 §§ 1, 2 and Article 32 § 1 gives grounds for considering that enjoyment of the right to inviolability of personal and family life is guaranteed to each person regardless of their gender, political, financial, social, language or other characteristics, as well as the status of a public person, including a civil servant, State or civic figure, who plays a certain role in the political, economic, social, cultural or other sphere of State or public life” (my highlighting – VR)  In fact, however, Article 24 ˈ§ 2 of the Constitution says nothing of the sort. We quote it in full: “There shall be no privileges or restrictions based on race, colour of skin, political, religious and other beliefs, sex, ethnic and social origin, property status, place of residence, linguistic or other characteristics”

Ukraine’s Constitutional Court has thus resorted to an unacceptably broad interpretation of the principle that discrimination shall be prohibited well-known in European legislation. A typical Slavonic trick as the Marquis de Custine would have said.

In fact, in giving an official interpretation of Article 32 § 1, Article 34 § § 2, 3 of the Constitution regarding what should be understood as information about the personal and family life of public officials and civil servants (whether such information is confidential information about a person), whether the collection, storage, use and dissemination of information about a public person constitutes intrusion in their personal and family life (which is prohibited except in cases envisaged by the Constitution), the following needed to be taken into consideration.

1.  An interpretation of the above-mentioned constitutional articles should first and foremost be based on the general designation of the Constitution as the source which safeguards the principle of the rule of law in Ukraine. This entails an understanding that a Constitution in its legal form consolidates a liberal-democratic political regime which - in the majority of cases – leads to an enhanced level of social dynamic.  Modern legal thinking views the Constitution as a functionally special law providing the legal framework for ensuring the interests of civil society as a whole.

2.  A modern Constitution envisages the safeguarding of individual freedom, the election of leaders and the right of the people to control the course of State and public matters. In its extended view this means the awareness of all those engaged in application of the law that those wielding political power should act in strict compliance with universal organic principles, and that citizens should consciously elect those in charge at State and local self-government level so that they carry out what the people consider correct, and not what they themselves want.

3. One of the main ideas on which constitutionalism is based is that the authorities should act only within the limits defined and permitted them by free citizens. For this reason the Constitution is accepted as being the main legal document not so much of the State, as much as of civil society, the free public as such. In conditions of constitutionalism it is not the State that should teach citizens about proper behaviour, but citizens should indicate to the authorities what would be a beneficial direction for their activities. Otherwise citizens would risk getting, under the guise of a Constitution, merely a means for reducing the standards of their civil-political and personal freedom.

4. A modern Constitution is concerned that the State in its activities should not excessively restrict citizens even where this concerns issues of national security. After all in conditions of democracy and the rule of law a potential factor for the flourishing of civil society and its members is the guarantee of their political liberty and freedom of information. These are regarding as natural and inalienable as understood by John Locke. Thus new constitutional standards automatically envisage protection of freedom in receiving and disseminating information, freedom of thought and expression.

5.  Effectively all constitutional norms should be assessed from the vantage point of fundamental, strategic rules for the existence of a free society. For example, the star of political philosophy in the XX century, John Rawls saw a constitution as being a collection of rules for fair procedure, a form of incorporation of liberties with the help of which citizens have the opportunity to fully carry out their life’s purpose. Here the most important of the constitutional tasks he considered to be the consolidation and safeguarding of intellectual freedom as the precondition for society’s political maturity, a factor in its self-awareness.

6.  Nowadays virtually all constitutionalists recognize the main purpose of a constitution as being to restrict State power with this entailing the establishment of transparent and clear principles for any activities by the authorities. Thus constitutionalism is the direct rejection of repressive elements in the relations between civil society and the authorities. Freedom of though, expression, freedom to receive and disseminate information logically fall into the realm of law free of political or administrative control. Clearly the free seeking and dissemination of information is the guarantee of freedom of thought, conscience, expression, of the press and the media as a whole.

7.  The free dissemination of information envisages freedom to search for information and freedom to use it. Clearly there are certain restrictions regarding the legal status of engaged in information activities and their objects of interest. For example, confidential and secret information fall under legal protection.  That these categories of information have a special legal regime envisaged by current legislation is self-evident.

8.  The problem however is that confidential information is only a part of information on restricted access, and information on restricted access can be disseminated if it is of public need, that is, it is the subject of public interest and the right of the public to know the information outweighs the potential damage from its dissemination (Article 29 § 1 of the Law on Information).

9.  Furthermore, information about infringements of human rights and civil liberties, about the unlawful actions of the authorities or bodies of local self-government , as well as their public officials and civil servants, cannot be classified as information on restricted access (Article 21 §§ 4, 5 of the Law on Information). If we bear in mind that unlawful actions by public officials and civil servants can also be carried out in the sphere of private and family life, it follows that the sphere of privacy of public officials and civil servants of the authorities and bodies of local self-government  is not absolutely protected from external intrusion  It is self-evident, for example, that Ukrainian voters have the right to know about the criminal, sexual mania or tyrannical tendencies of those they may elect.

10.  In addition, income declarations of the following people and members of their family are also not classified as information on restricted access: those standing for office or holding electoral office in bodies of power; those holding a first or second category post as civil servant or official of a body of local self-government (Article 6 § 6 of the Law on Access to Public Information).

11.  It should also be noted that in the sphere of jurisdiction of the European Court of Human Rights the principle has long been in force that the scope of information which can be restricted about a public official is considerably narrower than that for a private individual (Lingens v. Austria, 1986). In that case the European Court stated that public figures should show considerably more tolerance of interest regarding various aspects of their life from journalists and the public as a whole.

Nor is this approach specific to Europe. Article 32 of the South African Constitution (1996) states that each person has the right to any information held by the State, as well as to any information which is held by any other person if that information is needed for the exercising or protection of any subjective civil rights (Article 32 § 1.a, b). Thus one of the most important rights envisaged by the current Constitution of South Africa is the right of free access to any information deriving from the State or individuals and needed for the protection or exercising of civil rights and liberties.

If we bear in mind the fact that civil rights embrace the personal and political rights, the broad scope for the regulatory potential of the given article becomes clear. In order to exercise their electoral rights, each citizen aware of their purpose has the right and must know as much as possible about significant circumstances in the life of a person standing for office as deputy, mayor, judge, President, etc.

In general the principle of transparency, openness regarding life circumstances (including private) of public officials is universally recognized. For example, Article 39 § 6 of Brazil’s Constitution (1988) states that executive, legislative and judicial branches of power must publish on an annual basis the size of their pecuniary expenditure and remuneration for all public positions and posts.

It is well-known also that the size of pay and other remuneration of judges of the US Supreme Court (unlike the size of pay of judges of Ukraine’s Supreme and Constitutional Court), senators, members of the US Congress House of Representatives, as well as the President of the United States are on open access and regularly updated on official State websites.

12.  In its Judgement in the Case of Weber v. Switzerland (1990), the European Court of Human Rights also noted that there is no need to avoid disclosure of private information if this has taken on a public nature and has thus ceased to be confidential. Then in the Judgement in the Case of Leander v. Sweden (1987), the European Court observed that the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others (for example, journalists, etc – VR) wish or may be willing to impart to him

13.  As for American experience, in the Judgement of the US Supreme Court in the Case of Hustler Magazine v. Falwell (1988) the court ruled that excessive and exaggerated press attention to the lives of public figures cannot force the basis of law suits for moral compensation except where such information contained overtly false statements about facts, and where it was published with direct “bad intent”. In general there are considerable restrictions on defence of the private life of public figures in America.

In 1972 the US Supreme Court ruled that if those on the hunt for news stories are not protected from court proceedings, journalism swiftly turns into a meaningless exercise. For example, modern American laws do not waive journalists’ liability for intrusion on the private property of a public figure, however it is considered that punishment for actions of such a kind should in no way undermine the availing atmosphere in the country of freedom of speech and press freedom.

14.  With regard to Ukraine, it is worth noting that Ukraine is a post-totalitarian State, and therefore especially vulnerable to regression, to any quasi-censorship restrictions regarding freedom of information, opinion and expression.

One can also not ignore the fact that the election of people holding power by the population takes place on the principle of personal sympathies or antipathy with regard to the candidates. If that is so, then it is manifestly the right of the public to have considerably more information about public figures than is envisaged by traditional considerations of protection of their privacy of information.

In general, in their Judgement, the Constitutional Court did not so much serve the official regime, as throw yet another dry twig in the vehement discussion regarding its unethical and undemocratic nature. There has long been a critical mass of cultured and educated people in Ukraine who can recognize and identify legal manipulation and distinguish the letter of the law (Ukrainian and European) from its legal content. One can imagine that the only public conclusion from such a precedent will be a further fall in the rating of those in power (already virtually electoral rating). This is a dubious service given the date for the parliamentary elections… Furthermore, the crucial question yet again arises of whose priorities the Constitutional Court is defending. The classic answer (from the point of view of the doctrine of organic constitutionalism) is that it stands for the defence of civil society. The real and pragmatic answer is that it is defending the interests of the ruling elite, the political establishment

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