EDUCATIONAL SEMINAR IN KYIV ON ACCESS TO INFORMATION
09.12.2000
On 28-29 September the Kharkov Group for human rights protection (KhG), together with the Ukrainian Center of information and documentation of the Council of Europe and the State Committee of communication and informatization, held in Kyiv the education seminar ‘European legislation on the freedom of information and improvement of Ukrainian laws’. The seminar was oriented mainly toward lawyers working in state bodies, scholars and teachers of juridical higher schools, as well as activists of public organizations and journalists interested in this topic. The seminar was held in the framework of the program of interaction of the Council of Europe with Ukraine in the sphere of human rights protection and was financed by the Directorate of human rights at the Council of Europe.
145 people participated in the conference, 140 citizens of Ukraine and 5 foreigners. 90 out of 140 Ukrainian participants are lawyers, including 17 higher school teachers (from the National Juridical Academy, the Advocate Institute at Kyiv University, the USS Academy, the International Institute of linguistics and law, the University of Interior and others), 60 are state officials, among them: 19 officers of the Constitutional Court of Ukraine, 4 representatives of the Supreme Rada of Ukraine, 3 – from the Presidential administration, 5 – from the Ministry of Justice, 3 – from the USS, 10 – from the State Committee of the informational politics, television and broadcasting, 3 – from the Committee of communication and informatization, 2 representatives of the Ministry of Interior, of the State Committee of archives and of the staff of the ombudsperson in the Supreme Rada, 1 representative of the Council of national security and defence, 1 – of the Calculating Board and 5 representatives of regional directorates of the State Committee of the informational politics. 28 participants are NGOs activists, 14 are journalists, among them 5 representing the special juridical magazines. Two of the foreigners represented the Council of Europe (Andrzej Rzeplinski, professor of law of the Warsaw University, and Ivan Sekeli, the main counselor of the Open Society Archive), three are representatives of the American Association of Lawyers.
Each participant of the seminar was given the following information materials published by the KhG:
• the European Convention of man’s principal rights and freedoms (the official translation of the latest version of the Convention including the 11th Protocol, in Ukrainian);
• the bulletin ‘Security services under constitutional democracy and civil interests’, Issue 2-3 ‘Access to information in the countries of Central and Western Europe’ (in Russian);
• the quarterly ’Freedom of expression and privacy’, Nos. 1, 2, 3, 4 for 1999 and Nos. 1, 2, 3 for 2000 (in Ukrainian);
• the book ‘Human rights and the protection of personal data’ (in Russian);
• the information on the work of the KhG (in Ukrainian);
• the agenda of the seminar (in Ukrainian).
Participants of the conference demonstrated the greatest interest in the discussion of the access to information by state bodies have, and of the protection of personal data.
The first report ‘Ukraine as a member of the Council of Europe: progress, prospects, problems’ was made by Aleksandr Pavlichenko, the director of the Center of information and documentation of the Council of Europe. During the discussion of this report an active debates arose about the use of the texts of international agreements in the sphere of human rights (e.g., the European Convention) as a source of law. Vadim Demchenko, the director of the International Department of the Ministry of Justice of Ukraine, noticed that the text of the Convention, distributed among the participants, cannot be regarded as official, since it was not published in officially acknowledged editions, such as ‘Oficiyny visnyk Ukrainy’ (‘The official bulletin of Ukraine’), ‘Vidomosti Verkhovnoy Rady Ukrainy’ (‘The bulletin of the Supreme Rada of Ukraine’) or the newspaper ‘Golos Ukrainy’ (‘The Voice of Ukraine’), and that the text published in ‘Oficiyny visnyk Ukrainy’ must be accepted as official. Yuri Zaytsev, the editor-in-chief of the quarterly ‘Practice of the European Court of human rights. Verdicts. Commentaries’, objected to this opinion and said that this old version contains many translation errors and does not takes into account the adoption of the 11th Protocol, that in Strasbourg they use English and French versions of the Convention and do not take into consideration the peculiarities of Ukrainian situation, and, on the other hand, the text, distributed among the participants of the seminar, was sent by the Ministry of Foreign Affairs to the Council of Europe as the text of the Constitution used in Ukraine. The chairman of the seminar Eugene Zakharov told that the problem of publishing international agreements of human rights in the editions, which are official sources of law, is not solved yet, and it concerns not only the European agreements, but also 16 out of 25 conventions indexed by UNO.
Vsevolod Rechitskiy, the constitutional expert of the KhG, an assistant professor of National Juridical Academy, presented in his report the model project of the international Convention ‘On the protection of intellectual freedom’ (the text of the project was published in the bulletin ‘SViP’ Nos. 1-2, 2000). In the second part of the Convention, devoted to informational protection of intellectual freedom, the freedom of information is proclaimed as a guarantee of protection of intellectual freedom, and the basis of informational relations of the civil society and the state. The Convention presents the principally new structural approach to the definition of main informational flows in the modern society. It is proposed to distinguish three types of information: so called new information, which must get to the structures of civil society without state control; information, which content is known beforehand or can be predicted, that may be under restricted control of the state; and information, collection and storage of which is exclusively the state function. In the project a special regime is also considered of guaranteeing free information exchange among scientific organizations and higher schools of countries-participants. The Convention is finished with a normative subinstitute, whose theses concern the infrastructure of protecting intellectual freedom (publishing, book-sale, tele- and broadcasting, antennas, etc.).
An expert of the Council of Europe Andrzej Rzeplinski (The Helsinki Foundation of human rights, Poland) acquainted the participants with the decisions of the European Court concerning the access to information on internal and foreign politics of a state. He demonstrated that the European Court pledges a state to inform the society about the activities of state organs and told about new drafts of laws on the access to information, which are worked out both in old democratic countries (like the Great Britain) and in new independent countries; he also told about the idea of the creation of the 14th Protocol to the European Convention, which would concern just the access to information. The great attention was attracted by the nine principles of the access to information, worked out by the international organization ‘Article19’, about which professor Rzeplinski spoke. The text of the Principles and the report of A. Rzeplinski will be translated by the KhG and published in the bulletin ‘SViP’.
The report of Yevgeniy Zakharov was devoted to the freedom of access to information in Ukraine. He told that, unfortunately, the law ‘On information’, which is generally good, was stultified by by-laws, and nowadays any manager of any executive power body, according to the Instruction adopted by the Cabinet of Ministers of Ukraine on 27 December 1998, may, at his discretion, classify a document as ‘For the service use only’. Besides, often the adopted normative acts, for example, President’s Decrees, are labeled as ‘Not for printing’, and that has no legal basis, as well as for the label ‘For the service use only’, since these terms are not defined by any law at all. This practice is a direct infringement on Article 34 of the Constitution of Ukraine, in which it is clearly said that any restrictions on the freedom of information must be provided by law.
Ivan Sekeli, an expert of the Council of Europe from Hungary, told about legal regulation of the freedom of information and the protection of personal data in Hungary, as well as about his own experience of being the Commissioner of data protection. Participants of the seminar had the occasion to compare the legal system of Hungary and the draft of Ukrainian law ‘On the protection of personal data’ presented by Valeriy Brizhko, the head of the Department of the State Committee of communication and informatization. It was noticed that the main difference is that in the Ukrainian law draft the mechanism of independent survey is absent; this mechanism was in the draft before, but was deleted from it during the editorial process. Speakers claimed that the absence of such mechanism does not satisfy the main principles of member-countries of the Council of Europe, although it was more than once told about the necessity of such concordance.
Some other reports concerned different aspects of the Ukrainian legislation and practice of the access to information, which is stored in state organizations, in particular in archives. The great interest was aroused by the report of Igor Usenko, the outstanding scientist from the Institute of State and Law of the National Academy of Sciences of Ukraine, about the access to the archive files concerning the people repressed by the political reasons.
Participants of the seminar ordered many editions prepared by the KhG, and these editions (199 books) were sent to them by mail (free of charge) after members of the KhG have returned to Kharkov.
Ye.Zakharov
145 people participated in the conference, 140 citizens of Ukraine and 5 foreigners. 90 out of 140 Ukrainian participants are lawyers, including 17 higher school teachers (from the National Juridical Academy, the Advocate Institute at Kyiv University, the USS Academy, the International Institute of linguistics and law, the University of Interior and others), 60 are state officials, among them: 19 officers of the Constitutional Court of Ukraine, 4 representatives of the Supreme Rada of Ukraine, 3 – from the Presidential administration, 5 – from the Ministry of Justice, 3 – from the USS, 10 – from the State Committee of the informational politics, television and broadcasting, 3 – from the Committee of communication and informatization, 2 representatives of the Ministry of Interior, of the State Committee of archives and of the staff of the ombudsperson in the Supreme Rada, 1 representative of the Council of national security and defence, 1 – of the Calculating Board and 5 representatives of regional directorates of the State Committee of the informational politics. 28 participants are NGOs activists, 14 are journalists, among them 5 representing the special juridical magazines. Two of the foreigners represented the Council of Europe (Andrzej Rzeplinski, professor of law of the Warsaw University, and Ivan Sekeli, the main counselor of the Open Society Archive), three are representatives of the American Association of Lawyers.
Each participant of the seminar was given the following information materials published by the KhG:
• the European Convention of man’s principal rights and freedoms (the official translation of the latest version of the Convention including the 11th Protocol, in Ukrainian);
• the bulletin ‘Security services under constitutional democracy and civil interests’, Issue 2-3 ‘Access to information in the countries of Central and Western Europe’ (in Russian);
• the quarterly ’Freedom of expression and privacy’, Nos. 1, 2, 3, 4 for 1999 and Nos. 1, 2, 3 for 2000 (in Ukrainian);
• the book ‘Human rights and the protection of personal data’ (in Russian);
• the information on the work of the KhG (in Ukrainian);
• the agenda of the seminar (in Ukrainian).
Participants of the conference demonstrated the greatest interest in the discussion of the access to information by state bodies have, and of the protection of personal data.
The first report ‘Ukraine as a member of the Council of Europe: progress, prospects, problems’ was made by Aleksandr Pavlichenko, the director of the Center of information and documentation of the Council of Europe. During the discussion of this report an active debates arose about the use of the texts of international agreements in the sphere of human rights (e.g., the European Convention) as a source of law. Vadim Demchenko, the director of the International Department of the Ministry of Justice of Ukraine, noticed that the text of the Convention, distributed among the participants, cannot be regarded as official, since it was not published in officially acknowledged editions, such as ‘Oficiyny visnyk Ukrainy’ (‘The official bulletin of Ukraine’), ‘Vidomosti Verkhovnoy Rady Ukrainy’ (‘The bulletin of the Supreme Rada of Ukraine’) or the newspaper ‘Golos Ukrainy’ (‘The Voice of Ukraine’), and that the text published in ‘Oficiyny visnyk Ukrainy’ must be accepted as official. Yuri Zaytsev, the editor-in-chief of the quarterly ‘Practice of the European Court of human rights. Verdicts. Commentaries’, objected to this opinion and said that this old version contains many translation errors and does not takes into account the adoption of the 11th Protocol, that in Strasbourg they use English and French versions of the Convention and do not take into consideration the peculiarities of Ukrainian situation, and, on the other hand, the text, distributed among the participants of the seminar, was sent by the Ministry of Foreign Affairs to the Council of Europe as the text of the Constitution used in Ukraine. The chairman of the seminar Eugene Zakharov told that the problem of publishing international agreements of human rights in the editions, which are official sources of law, is not solved yet, and it concerns not only the European agreements, but also 16 out of 25 conventions indexed by UNO.
Vsevolod Rechitskiy, the constitutional expert of the KhG, an assistant professor of National Juridical Academy, presented in his report the model project of the international Convention ‘On the protection of intellectual freedom’ (the text of the project was published in the bulletin ‘SViP’ Nos. 1-2, 2000). In the second part of the Convention, devoted to informational protection of intellectual freedom, the freedom of information is proclaimed as a guarantee of protection of intellectual freedom, and the basis of informational relations of the civil society and the state. The Convention presents the principally new structural approach to the definition of main informational flows in the modern society. It is proposed to distinguish three types of information: so called new information, which must get to the structures of civil society without state control; information, which content is known beforehand or can be predicted, that may be under restricted control of the state; and information, collection and storage of which is exclusively the state function. In the project a special regime is also considered of guaranteeing free information exchange among scientific organizations and higher schools of countries-participants. The Convention is finished with a normative subinstitute, whose theses concern the infrastructure of protecting intellectual freedom (publishing, book-sale, tele- and broadcasting, antennas, etc.).
An expert of the Council of Europe Andrzej Rzeplinski (The Helsinki Foundation of human rights, Poland) acquainted the participants with the decisions of the European Court concerning the access to information on internal and foreign politics of a state. He demonstrated that the European Court pledges a state to inform the society about the activities of state organs and told about new drafts of laws on the access to information, which are worked out both in old democratic countries (like the Great Britain) and in new independent countries; he also told about the idea of the creation of the 14th Protocol to the European Convention, which would concern just the access to information. The great attention was attracted by the nine principles of the access to information, worked out by the international organization ‘Article19’, about which professor Rzeplinski spoke. The text of the Principles and the report of A. Rzeplinski will be translated by the KhG and published in the bulletin ‘SViP’.
The report of Yevgeniy Zakharov was devoted to the freedom of access to information in Ukraine. He told that, unfortunately, the law ‘On information’, which is generally good, was stultified by by-laws, and nowadays any manager of any executive power body, according to the Instruction adopted by the Cabinet of Ministers of Ukraine on 27 December 1998, may, at his discretion, classify a document as ‘For the service use only’. Besides, often the adopted normative acts, for example, President’s Decrees, are labeled as ‘Not for printing’, and that has no legal basis, as well as for the label ‘For the service use only’, since these terms are not defined by any law at all. This practice is a direct infringement on Article 34 of the Constitution of Ukraine, in which it is clearly said that any restrictions on the freedom of information must be provided by law.
Ivan Sekeli, an expert of the Council of Europe from Hungary, told about legal regulation of the freedom of information and the protection of personal data in Hungary, as well as about his own experience of being the Commissioner of data protection. Participants of the seminar had the occasion to compare the legal system of Hungary and the draft of Ukrainian law ‘On the protection of personal data’ presented by Valeriy Brizhko, the head of the Department of the State Committee of communication and informatization. It was noticed that the main difference is that in the Ukrainian law draft the mechanism of independent survey is absent; this mechanism was in the draft before, but was deleted from it during the editorial process. Speakers claimed that the absence of such mechanism does not satisfy the main principles of member-countries of the Council of Europe, although it was more than once told about the necessity of such concordance.
Some other reports concerned different aspects of the Ukrainian legislation and practice of the access to information, which is stored in state organizations, in particular in archives. The great interest was aroused by the report of Igor Usenko, the outstanding scientist from the Institute of State and Law of the National Academy of Sciences of Ukraine, about the access to the archive files concerning the people repressed by the political reasons.
Participants of the seminar ordered many editions prepared by the KhG, and these editions (199 books) were sent to them by mail (free of charge) after members of the KhG have returned to Kharkov.
Ye.Zakharov