VIII. RIGHT TO ACCESS TO INFORMATION

Information is the lifeline of democracy. Only a well-informed society can exercise control over the authorities in order to make them serve public interests. While, on the other hand, bad power needs secrecy in order to bury its incompetence and corruption. This is why transparency of those in power, making public exactly what the State powers want to keep secret and why, is always an immediate political issue, the litmus paper that reveals the powers’ intentions and plans.

Ukraine inherited a heavy burden from its totalitarian past, when practically all State activities were kept secret for decades, whereas any attempts to obtain and distribute information about State activities were interpreted as anti-State crimes. In this manner, the Soviet authorities hid their crimes, the collapse of the economy, as well as their own income, benefits and privileges. It is rather difficult to break free of this gloomy legacy, as reminders of the past became all too frequent during the years following independence. One such reminder is the well-entrenched practice of illegally classifying information which is being carried out by State bodies.

The right to access to information is one of the aspects of the right to information that Article 34 of the Ukrainian Constitutions guarantees: «Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice.

The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, the reputation or rights of other persons, preventing the publicatrm «due procedure» gradually lost any practical meaning. This lack of respect for procedural issues can be noticed, if one analyzes the practice of the highest judicial authorities and compares the number of resolutions from PSCU or published decisions from the highest judicial authorities devoted to issues of due criminal procedure with issues of material criminal law. The latter are astonishingly more numerous, although in recent years more and more attention is being given to the question of due criminal procedure.

As a result, in criminal procedure there are to this day no reasonably well-developed criteria for determining whether a confession was made voluntarily, nor is there any procedure for the exclusion of questionable confessions from case evidence. Courts hold to rather primitive tests to determine whether the confession was voluntary, usually failing to take into account the specific circumstances, under which defendants are forced, including through the use of torture, to confess.

Courts, in particular, assume erroneously that the use of torture or other kinds of coercion used to force a confession must be established by a court decision in order to declare a given confession inadmissible. Court practice shows that a well-grounded doubt as to whether a confession was made voluntarily is not sufficient to have it excluded from the evidence.

In cases, when a court considers that there are serious grounds for believing that «unlawful investigative methods» were applied to the defendant, the court instructs a prosecutor’s office to examine the relevant claims made by the defendant. As a rule, this examination is carried out by the same unit of the prosecutor’s office, which supported the case in court. In most cases, such examination results in a refusal to initiate a criminal investigation. Once courts receive the decision made by the prosecutor’s office refusing to initiate a criminal investigation or, when applicable, a decision to suspend a criminal investigation, they do not, in general, investigate the defendant’s claims of torture any further, and explain the claims away as being an attempt to avoid answering for their actions.

Such an approach by the courts to investigating and assessing defendants’ claims about the use of torture takes into account neither Ukraine’s international obligations, nor the existing system in Ukraine for examining claims that torture has been applied. Under the international obligations, in particular, according to Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, rules as to whether confessions are to be excluded from admissible evidence should be governed by the shifting of the burden of proof that a confession was given freely on to the prosecution. The mere fact that, according to international standards, any claim that torture was used must be officially investigated suggests that a person who has been subjected to torture, will not be able to prove their claim on their own, still less to prove them «beyond reasonable doubt». Yet the standards for evidence actually used by courts, do not take this fact into account.

This means that at present the onus of proving «beyond reasonable doubt» that a confession was made under duress is on the defendant. Such a shifting of the burden of proof that a confession was not voluntarily given results in the fact that a great number of confessions made under duress are not excluded from admissible evidence, and this, in turn, encourages further use of torture and other means of applying unlawful duress on defendants.

Furthermore, the problem with regard to determining the admissibility of a confession is exacerbated by the fact that this approach makes no distinction between proving that torture did actually take place, and proving the personal guilt of those responsible. Thus, the defendant, who tries to prove that his or her confession was obtained by using torture, can do this only after criminal prosecution of the specific perpetrators has been completed.

2.2. Impunity of those who resort to ill-treatment

The doctrine of positive obligation of the State to ensure effective investigation of claims by victims about the use of torture or other forms of ill-treatment has been significantly developed in the legislation of the Council of Europe, especially since the European Court of Human Right’s judgments in cases McCann and Others v. the United Kingdom[4] (judgment of 27 September 1995) and Assenov and Others v. Bulgaria[5] (judgment of 28 October 1998).

The positive obligation of the State includes:

1) the criminalization of torture in wording, which corresponds to the definition of torture in international law, in particular Article 1 of the UN Convention against Torture and Inhuman or Degrading Treatment or Punishment;

2) the creation of a system to effectively investigate claims of the use of torture and ill-treatment.

2.3. Criminal responsibility for ill-treatment

Criminal responsibility for actions, which have elements of torture in the meaning of Article 1 of the UN Convention against Torture, has been substantially developed in the last few years.

Until the new Criminal Code came into force on 1 September 2001, there was no recognition in legal terms of the crime of «torture». Actions, which fell under the definition of Article 1 of the UN Convention against Torture, in relevant cases, could be classified as criminally «exceeding one’s power or authority» or «compelling somebody to testify». Even in the most serious cases of torture, the elements of torture were absorbed into a charge of aggravated «exceeding of power or authority», according to section 365 (part 2) (section 165 of the «former» CCU), specifically by such elements as «coercion, use of weapons, or actions, which are painful or degrading for the victim».

In the new Criminal Code, criminal liability for torture is provided in section 127, which defines the crime as follows:

«Torture, that is, the intentional inflicting of severe physical pain or physical or psychological suffering by means of beatings, torment or other coercive actions in order to force a victim or other person to commit actions against their will».

Although Ukraine had clearly taken this step in order to fulfil its obligations under the UN Convention against Torture, the formulation of this section did not fully comply with the tasks set out by the Convention.

The subject of the crime under Article 127 of CCU was any person. Therefore, by taking into account the rule lex specialis, this provision was not applied in the case of officials, in particular of law enforcement officers who had used torture or other forms of ill-treatment. Therefore, this section failed to become a special tool intended to prevent the use of torture by agents of the State.

The term of punishment, – from 3 to 5 years deprivation of liberty, – provided by that section did not comply with international obligations either. Only if the crime was commition of information received confidentially, or supporting the authority and impartiality of justice».

This list of grounds for restriction of access to information is exhaustive. Unfortunately, article 34 of the Constitution does not include the demand in Article 10 of the European Convention on Human Rights and Fundamental Freedoms, i. e. these restrictions «as … are necessary in a democratic society».

Implementation of the right of access to information which is in the possession of State executive bodies and bodies of local self-government is also supported by the constitutional right for citizens’ petitions, which is guaranteed by Article 40 of the Constitution. This Article obliges State executive bodies and bodies of local self-government and their officials to consider all written petitions, individual or collective, and give a well-founded response within the term prescribed by the law «On citizens’ appeals» (one month).

Constitutional restrictions on the right to access to information about an individual are set down in Article 32 of the Constitution, which prohibits the collection, storage, use and dissemination of confidential information about an individual without his/her consent, except in cases envisaged by law and only in the interests of national security, economic welfare and human rights. The issue of personal data protection is discussed in the section devoted to the right to privacy. In this section we will only consider access to information which is in the possession of State executive bodies and bodies of local self-government.

A distinction is drawn between passive and active access to information, that is, the obtaining of information through communication channels created by State executive bodies and bodies of local self-government and by means of formal requests for information, or about the access to materials. One should also distinguish access to parliamentary, governmental and court information, as well as information owned by private and non-governmental legal entities. Access to documents and access to public hearings (parliamentary, government, etc.) are essential constituents of the right to access to information.

1. Access to open information

1.1. Legislative regulation

Access to information is, in addition to the above, regulated by the law «On information» adopted in October 1992 and the Law «On state secrets» adopted in January 1994. The adoption of these laws was an undoubted achievement of the young State. Even before the adoption of the Constitution, these laws defined a system of relations and obligations in this sphere, usual for a democratic state.

Article 10 of the law «On Information» defines the guarantees of the right to information; it imposes the obligation on State agencies at all levels to inform the public on their activities and decisions taken, while Article 21 defines the means of making official information public, including providing it directly to those interested (orally, in writing or in other ways).

The resolution of the President of Ukraine of 28 March 1996 «On measures to raise the awareness of the Ukrainian population about the main directions of State policy» is also noteworthy. According to this resolution, all the structures of executive power (Cabinet of Ministers, Presidential Administration, Ministries and other central, regional, city and district administrative bodies) were to organize a system to regularly inform the population about current issues of internal and external state policy. To this end, monthly «information days» were suggested, in which top leaders and executives would participate. Most ministries, agencies and local administrations did in fact begin to hold regular briefings with the help of the press services each set up.

One should note in this connection the President's Resolution of 23 November 1995 «On coordination of press services and informative-analytic bodies of executive power», as this resolution effectively creates a ladder of Press services at all levels of executive power. The duty of coordinating all press services is assigned to the Presidential press service, which has to hold monthly briefings for heads of the press services of the Cabinet of Ministers, ministries and other central bodies of executive power. Each of these press services must coordinate, with the Presidential press service, all the materials, which are passed to the mass media and which «contain evaluation of external and domestic state policy which could have substantial public impact». Furthermore, these services must inform the Presidential press service about all activities which are to be held by State executive bodies or by state officials together with the mass media.

In our opinion, these resolutions, while appearing designed to render official information more accessible, lead, however, to a limitation on freedom of information, and to rigid state regulation of the procedure for obtaining such information. The centres of public relations and press services created are frequently the founders of their publications, and these publications, in fact, serve rather as means of propaganda than as sources of unbiased and authentic information. Instead of serving the interests of society (given that the goal of their creation was to guarantee transparency of the activities of state bodies and agencies), they have served the interests of specific State bodies. Moreover, having the monopoly on a certain range of information of a public nature, they have often restricted its access for journalists and ordinary citizens.

Article 29 of the law prohibits the restriction of access to open information, although it grants advantages in obtaining information to persons who need this information to fulfil their professional duties, which, from the viewpoint of Article 45 on equal rights of all participants in information exchange, seems somewhat questionable.

The list of documents and information, which are not to be made accessible to the public, is given in Article 37. In particular these include:

– information which, in accordance with established procedure, has been deemed a State secret;

– confidential information;

– information about investigative operations or criminal investigations of offices of the Prosecutor, the Ministry of Internal Affairs (MIA), the Security Service of Ukraine (SSU), and the court, which, if made public, could damage investigative operations, detective enquiry or criminal investigation, could infringe upon the right to just and objective consideration of cases by the court, or could threaten the life or health of some person;

– information about the private life of individuals;

– internal departmental correspondence, connected with the process of decision making, where the decision has not yet been taken;

– information of financial bodies prepared for audits;

– information which should not be made public in accordance with other laws and normative legislation.

The restrictions on the freedom of information will be considered in more detail in Section 2.

Article 32 of the Law «On information» describes the procedure for satisfying official requests for information; this Article obliges state agencies «to impart information about their activities orally, in writing, over the telephone or using public speeches of state officials». Such a formulation enables bureaucrats to refuse to give written answers to specific questions, since they can refer to the public speeches of officials of their agency, whereas the same Article defines a request as a written request to give information orally or in writing, that is, the form of the response is determined by the author of the request. Another form of official request for information is the request to be given access to any non-classified document which is held by State executive bodies or bodies of local self-government in order to find out what it contains.

To ensure the right of free access to information, the question, who is responsible for what, isted repeatedly or through the prior conspiracy of several people, was the possible punishment 5 to 10 years deprivation of liberty.

The practice of using criminal punishment against law enforcement officers, as before, was based on provisions, which established criminal liability for exceeding power and the authority vested in them (section 365 of CCU). This is confirmed by the Fifth Report of the Ukrainian Government to the UN Committee against Torture, which states that: «law enforcement officers who commit such actions shall face criminal prosecutions under sections, which establish liability for crimes committed in their official capacity» (section 365 ‘Exceeding of power or authority’ and others)».

However, the above-mentioned section contains a classification of crime, which could cover a wide range of offences. The dilution of the term «torture» into a wider term «exceeding power» makes it possible to conceal the actual extent to which torture has spread and impedes effective control over implementation of the obligations under the UN Convention against Torture concerning the severity of punishment and use of amnesty. It also interferes with the effective use of provisions under the criminal law to accomplices of individuals, who use torture.

A number of actions, which are qualified by the UN Convention against Torture as torture or ill-treatment can fall under section 373 of UCC «compulsion to testify». Paragraph 2 mentions «use of coercion or humiliation of the person» as elements of this and provides 3 to 8 years deprivation of liberty as punishment.

Convictions of State law enforcement officers for using torture remain rare. Furthermore, punishments meted out by the court in the case of conviction do not correspond to the gravity of the crime. Convicted officers often receive conditional sentences. Nevertheless, there have been some quite severe sentences:

For example, two former police officers in the Kherson Region were sentenced to 7 years, and a third to 5.5 years, deprivation of liberty, along with confiscation of their personal property and prohibition from holding any positions in law enforcement bodies. They had been found guilty of using torture to a suspect in order to obtain his confession. As the author of the report on the case points out, «during the entire period of Ukraine’s independence, this is the first case in the Kherson Region, when police officers have been sentenced to realistic terms of deprivation of liberty specifically for the use of torture». [6]

In another case, the Chernihiv Regional Court sentenced Police Captain Valeriy Stashko to 14 years deprivation of liberty. His accomplice, Senior Sergeant Mykola Reshotko, was sentenced to 5 years deprivation of liberty with a 3-year probation period. The Supreme Court of Ukraine upheld the sentence. In his address to the court, Prosecutor Anatoliy Lavrinenko said, «Stashko inflicted open cerebral injury on Ivashov, fracture of the sublingual bone, closed neck injury, which resulted in the death of the victim». [7]

Not only are convictions of law enforcement officers still rather rare, but so are even the bringing of charges against officers whose involvement in torture has been claimed by victims.

As far as one can deduce from press reports, it is only in isolated cases that charges have been laid.

For example, a charge was brought against Mykola Gurin, head of a criminal investigation unit at the Solomyansky District Police Station in Kyiv, who, in the early hours of 25 June 2003, was accused of torturing his former colleague suspected of murdering his wife. Earlier, under this case, the court had sanctioned the arrest of four top officers of the Solomyansky department – A. Gavrilenko, V. Otsalyuk, S. Deripapa, and Y. Martynyuk. All of them have been accusing of exceeding their authorities, and the investigation into the case is being carried out by the General Prosecutor’s Office.[8]

In another case, an investigation department of the Kyiv City Prosecutor’s Office submitted to court a criminal case, where three officers were accused of beating a detainee in order to calm him down. They have been charged with exceeding their power and official authority, leading to serious consequences. [9]

One more example: «three police officers have been charged with exceeding their power and official authority by torturing a suspect. The case has been submitted to a Kyiv court».[10]

According to information from the Fund for professional assistance to victims of torture, in 2004 charges were brought against the Head of the Criminal Investigation Department of the Vovchinetskiy district police department in Ivano-Frankivsk and an operations officer of the same unit for exceeding power, illegal imprisonment and a number of crimes committed against Oleksy Zakharkin.

It is not possible to carry out a detailed analysis of court practice with regard to convictions for using torture since the actions which include features of ‘torture’ as defined in the Convention against Torture are not singled out in court statistics.

Ukraine’s Law No. 2322-IV of 12 January 2005 introduced amendments to Article 127 of the Criminal Code. The components of the crime, set out in part 1 of this Article were changed in the following way:

«Torture, that is, the intentional inflicting of severe physical pain or physical or psychological suffering by means of beatings, torment or other coercive actions in order to force a victim or other person to do something against their will, such as to obtain from him/her or another person information, testimony or a confession, to punish him/her for actions, which he/she has committed or is suspected of having committed, or to intimidate him/her or other persons…»

In addition, this section was supplemented by part 3, which defines a «law enforcement officer» as a special subject, and by part 4, which categorizes causing death as a result of the use of torture as an aggravated circumstance.

Part 3 provides punishment from 10 to 15 years of imprisonment, part 4 – from 12 to 15 years imprisonment or a life sentence.

These amendments leave certain discrepancies in the law.

Firstly, in the proposed version, the mark of ‘torture’ is a «violent act». This narrows the scope of that section compared to the definition of Article 1, which defines as torture «any act by which seve most important. This question is treated in Articles 35 and 48, which describe the procedure for handling complaints about the unlawful actions of state agencies in questions involving information. The complaints about these actions are dealt with by State bodies at a higher level or in court.

In addition, Article 47 of the Law which deals with responsibility for the violation of legal norms on information sets out disciplinary, civic, administrative or criminal responsibility in accordance with Ukrainian legislation, including responsibility for an unjustified refusal to give information or for the unwarranted inclusion of this information in categories designated as classified.

The Law of Ukraine «On introducing amendments to some legislative acts of Ukraine concerning the question of provision and unimpeded fulfilment of the human right to freedom of speech», adopted by Parliament on 3 April 2003, introduced amendments into the Administrative Offences Code , supplementing it with Articles 212-3. This Article establishes responsibility for an unwarranted refusal to provide information, the untimely or incomplete provision of information, of for the provision of false information, in cases, where such information should be provided on the request of an individual or legal entity in accordance with the Law of Ukraine «On Information» and «On citizens’ petitions». It is, moreover, stated that «State officials, who fall within the jurisdiction of the Law of Ukraine «On fighting corruption», shall be brought to answer for such actions in accordance with the Law of Ukraine «On fighting corruption».

We are, however, unaware of any serious reviews, particularly at the court level, in this field, although cases of unjustified refusals to provide information in response to official requests, cases of arbitrarily interpreted statements restricting the provision of information, or cases where there was simply no response to a request, occur quite frequently, especially on a local level.

The Law «On the procedure for the coverage by the Mass Media of activities of State executive bodies and bodies of local self-government in Ukraine» obliges State executive bodies and bodies of local self-government to provide the Mass Media with full information about the activities of these bodies via the appropriate information services of the State executive bodies and bodies of local self-government, to ensure that journalists have free access to this information, except in cases set out in the Law of Ukraine «On state secrets», to not exert any pressure on them and to not interfere in their creative process (Article 2 of the Law). However, there have been many cases of restriction of access to the sessions of local city councils and regional state administrations.

1.2. Access to official public events

Despite their pronouncements of democratic principles, the State authorities, from the Cabinet of Ministers down to local State administrations, and bodies of local self-government have often created obstacles for journalists as regards access to official public events.

Accreditation problems have generally arisen following the publication of material criticizing representatives of the authorities. For example, during 2004, no journalists from any opposition-leaning media outlet (the TV-channels «Channel 5», «Tonis», «TRK Era», the newspapers «Dzerkalo Tyzhnya», the Internet-edition «Ukrayinska Pravda», and «Gromadske Radio (Civic Radio)») were included in the so-called «presidential pool» (a group of journalists, who accompany the President or other officials, at the State’s expense, on trips abroad to cover their activities), so they were often forced to make such trips at the expense of international donor organizations. Moreover, when a new President came to power, the situation was reversed: those left behind were now taken, and the others not. Understandably, such discriminatory policy is, in principle, without any legal justification.

The most typical examples are as follows:

1. On 23 January 2004, the Presidential press-service revoked the accreditation of journalist Hanna Tsukanova from the France-Press Agency for the joint press conference of the Presidents of Ukraine and Russia. On the same day, the Presidential press-service revoked the accreditation of Sergiy Leshchenko, a correspondent of newspaper «Ukrayinska Pravda», to cover the meeting between Leonid Kuchma and Vladimir Putin.

2. An ICTV filming crew was not allowed to attend an Internet-conference held by Sergiy Yermilov, Ukrainian Minister of Fuel and Energy on 4 February 2004.

3. Viktoria Marenich, a correspondent of Radio «Liberty» in Kharkiv was among the members of the Kharkiv regional media who found themselves without accreditation for the All-Ukrainian Conference on Engineering Industry held in Kharkiv, which was attended by President Leonid Kuchma on 2 March 2004.

4. Olga Olenich, Chief Editor of the newspaper «Kremin» was refused access to a press conference at the Office of the Ministry of Internal Affairs in Kremenchuk (Poltava Region). On Saturday, 24 April 2004, the editor declared a «dry» hunger strike in protest against encroachments of freedom of speech with regard to the Ukrainian independent media, and her newspaper, in particular.

5. Members of non-State Vinnytsa media – the Information Agency «Kontekst-Media», newspapers «Channel 33» and «RIA» - were denied access to public events and facilities, visited by Prime Minister Viktor Yanukovych on 9 June 2004, during his visit to the Vinnytsa Region.

6. Journalist Volodymyr Boyko of Radio «Liberty» was not permitted to attend a press conference given by the General Prosecutor, Gennadiy Vasilyev, which took place on 22 September 2004.

7. On 12 October 2004, in the Kharkiv Sports Arena «Lokomotiv», Presidential Candidate Viktor Yanukovych met with young Kharkiv residents. About 20 students, supporters of Viktor Yushchenko, tried to attend the event. A TV-crew of an ATN news program (Channel 7) happened to be nearby. Police officers detained the students and pushed the journalists away, hampering their work. Two men in civilian clothes grabbed a video camera from Andriy Voytsekhovsky, press secretary of the local headquarters of Our Ukraine», and threw it in a fountain.

8. On 24 October 2004, 15 journalists from Kherson, mostly from non-State media outlets, were not permitted to attend to a special session of the Kherson Regional Council, where a resolution was expected to be adopted concerning the political situation in Ukraine and the attitude of the Kherson regional council members toward it.

9. On 9 November 2004, Natalya Gridina, a judge of the Suvorovsky Local Court in Kherson, did not allow journalists from independent media to be present at a court hearing concerning a complaint by Lyubov Yeremicheva against unlawful actions by the Regional Governor (then still Sergiy Dovgan).

10. On 24 November 2004, the Mayor of Chuguev (Kharkiv Region), Galina Minayeva, denied journalists Serhiy Rogozin and Roman Gnoyevoy (the latter, by the way, was then a correspondent of the newspaper «Chuguev News» – a publication of the town council!) access to a plenary session of the Chuguev town council. Yury Chumak, correspondent of the newspaper «Tochka Zory», was also forcibly ejected from the town hall, without even a vote of the Council.

1.3. Access to public events during the elections

The problem of access to public events during the 2004 election campaign became particularly acute.

The high-profile situation of acute political confrontation in Mukachevo (Trans-Carpathians Region) at the beginning of 2004 attracted enormous media interest. The attitude toward the press, demonstrated by the authorities and some members of interested political forces during the Mukachevo elections, was highly indicative, above all, from the point of view of the likely coverage of the forthcoming Presidential elections. The methods of «work with the press», employed in Mukachevo, were striking not because of their partire pain or suffering… is intentionally inflicted». Even though the narrowing of the definition of torture by the introduction of the element of «violent actions» may seem unimportant from the point of view of inflicting pain, it is very important with regard to suffering, which can be caused not only by violent action, but also by the creation of certain circumstances. These circumstances in some cases could be created by actions, which, in themselves, are not violent.

Secondly, the definition in Article 1 of the UN Convention against Torture is aimed only at representatives of the State. Yet the Law presents a definition of torture in part 1 of section 127, which covers a general subject, or perpetrator, of the crime. This creates a certain lack of logic which can be seen in the example of an indicator such as ‘«obtaining a confession». Only a representative of the State needs a «confession» in the technical meaning, in which it is used by the Convention. If we applied the purpose of «obtaining a confession» to a general subject, this would widen the meaning of «confession» far beyond the boundaries of its usual meaning. The same to some extent holds true for the purpose «to punish for actions».

Despite these shortcomings, the amendments to section 127 of UCC constitute a significant step forward in implementing provisions of the UN Convention against Torture. The fact that torture applied by law enforcement officers is placed in a separate part of section 127, leads one to hope that in the future, we will be able to obtain statistical data as to the implementation of this provision.

3. Investigation of torture

Until a mechanism to ensure effective investigation into complaints about torture is created, the problem of how to prevent torture will not be solved. Ineffective investigations into claims of torture being applied by law enforcement officers still pose a problem in Ukraine’s legal system. It creates the impression that law enforcement officers can torture with impunity, and significantly contributes to the fact that torture and ill-treatment are perceived by many such officers not as a crime, but as a routine element of their fight against crime.

Human rights organizations, which have joined forces within the framework of «Campaigning against Torture and Cruel cular originality, but because of the absolutely open, undisguised disregard for the law - both election and information legislation - demonstrated by the local authorities (with the full support of those in power in Kyiv). The system of isolating members of the media from information about the election campaign and voting in Mukachevo was very simple, with no technological tricks applied. The great number of media representatives, who arrived in Mukachevo a few days before the election, were quite simply not admitted into the premises of the Territorial Election Commission (TEC). The buildings were simply cordoned off by reinforced police units, who referred to the relevant order from the Head of the TEC. It was impossible to contact this same Head of the TEC, there were no official refusals, and effectively there was nobody to hand an official complaint to regarding the impediments placed on journalist activity. Nothing remained but to prepare the appropriate reports about violations and turn to the courts with a complaint about the actions of the TEC.

Overall, according to the Kyiv Independent Media Trade Union, during the Mukachevo events, 15 cases of unlawful refusals to provide journalists with information were recorded.

The Law «On the Ukrainian Presidential Elections» states that «electoral commissions are special collegiate State bodies, authorized to prepare and hold elections for the President of Ukraine» (Part 1 of Article 22). In addition, Part 4 of Article 14 reads «electoral commissions, State executive bodies, bodies of local government, officials and functionaries of these bodies are obliged, within the scope of their authority and competence, to provide representatives of the media with necessary information concerning the preparation and holding of the elections». Media representatives are ensured unimpeded access to all public events connected with the elections. On the basis of Part 9 of Article 28, on the day of voting, they are entitled «to be present [there] without a permit or invitation from the relevant commission» (provided that there are no more than 2 representatives of one media outlet).

In order to conceal abuses during the election campaign, members of the press were hampered in various ways in their access to polling stations. Denial of access to informationTreatment in Ukraine», monitored claims of torture over a period of one and a half years (from July 2003 to December 2004). During this time, the partners tried to initiate investigations in over 25 cases. Although one can succeed in having a criminal investigation launched, it takes considerable effort and results in late investigations.

3.1. Initiating an investigation

In accordance with case practice of the European Court of Human Rights, there is a legal obligation to conduct an investigation, if a Prosecutor’s office receives trustworthy information from any source about possible ill-treatment of a detainee.[11]

In Ukraine, the only way to initiate a criminal investigation against law enforcement officers, who have used torture, is to address a complaint to a Prosecutor’s office, the latter having sole authorization to investigate this crime (section 112 of Ukraine’s Criminal Procedure Code (CPC)).

Although, according to section 97 of the CPC, «A Prosecutor, investigator, detective inquiry unit, or judge are obliged to accept claims and reports about crimes committed or being prepared, including cases, which do not fall within their jurisdiction», Offices of the Prosecutor have a lot of discretion on deciding whether to initiate an investigation. Although this wide discretion is not directly recognized by legislation or doctrine, it exists as a result of the unlimited margin in assessment, whether enough grounds are in place to begin a criminal investigation. Offices of the Prosecutor very cleverly use provisions of section 94 of CPC, which reads that «an investigation can be opened only in those occasions, when there is enough data suggesting the elements of a crime».

Moreover, in practice, such power of discretion is also determined by the insufficiently strong guarantees for complaints to the court, which would make it possible to immediately reverse unwarranted decisions by an Office of the Prosecutor. This subject will be discussed below.

The check which is carried out by the Prosecutor on receiving a complaint about torture is usually extremely superficial. Most often it is limited to questioning the law enforcement officers mentioned in the complaint. This questions ends with a written «explanation», in which the law enforcement officer in formulaic expressions denies the very possibility of the use of torture.

In most cases, these «explanations» are used to refuse to initiate a criminal investigation on the grounds that there is «insufficient data indicating the elements of a crime». Due to the fact that in the majority of cases no measures are taken by prosecutor’s offices to obtain «sufficient data», the numerous refusals to launch criminal investigations demonstrate the general belief of the Prosecutor’s office personnel that it is the victim, who is obliged to present sufficient data.

For the consideration of a complaint, the legislators have allocated three days, and if the claim needs examination, ten days; then a resolution must be made, whether to launch or to refuse to launch a criminal investigation. As a rule, these time limits are not kept, and a victim can be waiting for official notification about the decision reached for a month or longer.

For example, Ivan Nechiporuk’s lawyer and relatives submitted a complaint to the office of the prosecutor alleging that Nechiporuk had been subjected to torture on 26 May 2004. A decision concerning the complaint was made only on 18 June 2004, 23 days after the complaints were submitted.

Andriy Yatsuta submitted a complaint about torture to the prosecutor’s office on 26 May 2004, however a decision concerning the claim was made only on 27 September 2004.

Prosecutor’s offices are also slow in providing copies of their resolutions to suspend a criminal investigation (or to refuse to open a criminal investigation). On virtually every occasion, the office of the Prosecutor fails to send a copy of the respective resolution, or limits itself to sending a letter, informing that the investigation has been suspended, or that the request to open a criminal investigation has been turned down.

For example, a resolution by the Kharkiv Regional Prosecutor’s Office to refuse to initiate a criminal investigation concerning a complaint by K. Kucheruk was issued on 1 November 2004. Kucheruk’s representative received a copy of the resolution at the beginning of January 2005, after making a written request. Before that, neither K. Kucheruk, nor her representative had been informed about the progress of the examination.

In the case of Ivan Nechiporuk, the decision to refuse to launch a criminal investigation concerning Nechiporuk’s complaint was issued on 18 June 2004. He has still not been sent a copy of this resolution.

If one takes into consideration the high frequency and uniformity, with which prosecutor’s offices procrastinate over providing notification of the results of their investigation, copies of resolutions and documents explaining the grounds for their decisions, it can be concluded that the use of these and other methods are deliberate ploys aimed at sabotaging the investigation into claims of torture.

Section 236-1 of CPC sets out the procedure for appealing a refusal to launch a criminal investigation in the courts. The judge should consider any appeal against such resolutions within 10 days from the moment it is filed in court. However, in practice, consideration of appeals can drag on for months.

For example, Gennady and Valery Vladimirov (from the city of Bakhchisarai) lodged an appeal against the refusal to launch a criminal investigation on 17 May 2004. The appeal was considered by the court only on at polling stations – this violation being the «hit» in October and November precisely «thanks to» electoral machinations. Over October and November 64 such cases were recorded (and these are only the cases which were brought to light and which received Press coverage). It is symptomatic that the majority of these violations were recorded in those regions, where the largest number of cases of election fraud and violations were observed – in the Kharkiv, Sumy, Kirovograd, Donetsk, and Lugansk regions.

From the end of November / beginning of December, the situation with the use of State administrative resources during the election campaign changed significantly. The Orange Revolution with the ensuing and quite unprecedented social activeness of Ukrainians forced a significant part of the bureaucracy to believe that serious changes were inevitable. And, after all, it is the way of any bureaucracy to try to find a place for themselves in new circumstances. Perhaps for this reason the attempts at vote-rigging, as well as the attempts to hamper open information about the course of the rerun of voting, were, so to speak, of a «residual» nature. Thus, although denial of access to information remained the most common violation in December – with an obvious regional orientation towards eastern and south regions, nonetheless, it was now, fortunately, on a lesser scale than just a few weeks earlier. Of 19 cases reported by monitoring services, only five occurred in the centre and in the West (Trans-Carpathian Region), all the rest occurred in the East and South. This fact to a certain degree could serve as a kind of definition of the remains of the «administrative resources».

Some refusals [to allow access] during the voting, already traditional for voting days, were directed at representatives of the Committee of Voters of Ukraine, who, denied the right in law to officially observe the election process, were forced to obtain accreditation for their observers under the auspices of the newspaper «Tochka Zory».

The majority of grounds given for refusing access to polling stations were flimsy, but formally plausible reasons such as the incorrect form of journalists’ ID (no photograph, no signature, the pass having expired). There were, however, cases recorded where journalists were denied access to polling stations with no reason being given.

One should note that an appeal to the court in cases where flimsy grounds for denying access of journalists to polling stations had been given always ended with the court deciding in the journalists’ favor.

1.4. Access to normative legal acts

Article 57 of the Constitution declares: «Everyone is guaranteed the right to know his or her rights and duties. Laws and other normative legal acts that determine the rights and duties of citizens shall be brought to the notice of the population by the procedure established by law. Laws and other normative legal acts that determine the rights and duties of citizens, but that are not brought to the notice of the population by the procedure established by law, are not in force».

The law on the procedure for publishing normative legal acts was passed by Parliament, however President Kuchma used his right of veto, which Parliament could not overcome. The lack of a law is a negative influence on the nature of access to normative legal acts.

Thus, if we take the President’s Decree ¹503 of 10 June 1997 «On the procedure for the official publication of normative legal acts and their coming into effect», it follows that decrees and orders which do not concern the rights and freedoms of citizens are disseminated by bringing them directly to the notice of interested individuals, State executive bodies and bodies of local self-government. In practice this means that a large number of normative legal acts are not published. There are still a great number of closed-access departmental instructions, which have more weight for the employees of the relevant departments than the Constitution and laws of Ukraine.

Laws and Resolutions passed by the Verkhovna Rada are printed in official publications in both Ukrainian and Russian – in «Vidomosti Verkhovnoyi Rady Ukrainy» and the parliamentary newspaper «Golos Ukrainy». Since 1997 a printed organ of the Ministry of Justice has been published – «Ofitsiyny visnyk Ukrainy», which includes all normative acts registered in the Single Register of the Ministry of Justice the access to which is not classified. Non-State mass media may publish official documents of State executive bodies and bodies of local self-government only on the basis of an agreement between the body which passed the document and the editorial board of the media outlet (Article 22 of the Law «On the procedure for the coverage by the Mass Media of activities of State executive bodies and bodies of local self-government in Ukraine»). In general, the activity of the Verkhovna Rada and other State Executive Bodies is covered in the mass media on conditions defined in agreements between State executive bodies and the editorial board of the media outlet (Article 20 of the Law). That is, non-State media outlets may publish texts of laws and other decisions of parliament only having signed an agreement with the Administrative Department of the Verkhovna Rada. Moreover, Article 4 of the Law prohibits independent translation of official documents from one state language into another.

It was virtually impossible previously to gain access to Draft Laws, except perhaps through acquaintances among State Deputies. With the development of computerized legal systems and the Internet, the situation has improved. These days, texts of some Draft Laws can be found on the free website of the Verkhovna Rada: [12]

The European Committee for the Prevention of Torture has also recommended that in cases where people suspected of a crime, on their arrival in court, complain about ill-treatment from law enforcement officers, the judge is obliged to record the complaint, order an immediate medical examination and take all necessary measures in order to conduct a due investigation concerning the complaint. This approach must be followed regardless of whether or not that person has visible bodily injuries. [13]

As practice demonstrates, judges, prosecutors, and investigators, to whom law enforcement bodies bring detainees, pay little attention to formal complaints by the detainees about the use of torture to them, let alone taking initiative in clarifying the circumstances behind their having received visible bodily injuries. In some cases, the results of medical examination, obtained after a detainee was brought to court and took part in court hearing show that the detainee already had visible bodily injuries at the point of his or her first court appearance.

According to Viktor Kopcha, «On 30 November 2003, I was brought to court, where it was to be decided, whether I would be placed in custody or released. The judge asked me only one question, ‘What can you say in your defence?’ I said that I was innocent, that I had an alibi, that I had not been allowed to see my lawyer. The judge ordered that I be taken out and announced, ‘Give him seven more days.’ She did not respond to my request to conduct an interrogation».

In addition, for those victims, who remain in the custody of a law enforcement agency, it is even more difficult to complain about the use of torture or ill-treatment, because of their vulnerable position. Section 97 of CPC reads that «if there are relevant grounds which suggest that there is a real threat to the life and health of a person, who has stated that a crime has been committed, one must take necessary measures to provide security of the applicant, as well as members of his/her family, if by means of threats or other illegal actions against them, somebody is attempting to influence the applicant». Although practically in all cases, when allegations about torture come from a person, who is held in the custody of a law enforcement agency, one could assume some related risks, the Kharkiv Human Rights Group are not aware of any case, when this power has ever been used by prosecutors or judges. Moreover, established practice, in which the «examination» of a claim starts with questioning the law enforcement officers, possibly involved in the use of torture and ill-treatment, heightens still further the risk to the victim.

Detainees also do not often make formal complaints to the judge about ill-treatment meted out to them because they are, as a rule, usually brought to the court by exactly those people who possibly the day before subjected them to bad treatment. These officers threaten the detainees with more torture if they make any kind of complaint. In view of the fact that legislation allows a judge to extend detention in police custody, detainees are well aware of the possibility that they will remain under the control of the same people whom they complained about after the court hearing is over.

If we take into account that a judge has no authority to launch a criminal investigation, no legal obligation[14] to order a medical forensic examination, as well as the absence of real ways of protecting a detainee from the revenge of those against whom he or she complains – for example, by transferring him or her to other place of detention, – detainees consider expressing their complaints as a futile effort, which can only put them under threat of being subjected to even worse forms of ill-treatment.

One of the factors that has contributed to such a situation is the substantial reduction in the court’s competence after amendments to CPC were introduced in the summer of 2001. According to those amendments, the right to launch a criminal investigation was removed from the court’s jurisdiction.

This narrowing of ada.gov.ua/">www.rada.gov.ua. One can follow the entire Draft process, beginning with registration of the submitted draft law in parliament, on the computerized legal system «Liga Zakon» which contains all normative legal acts registered by the Ministry of Justice, draft laws, all resolutions of the Constitutional Court of Ukraine, and some resolutions of the Supreme Court of Ukraine. Access to this system is, however, on a paying basis.

It should be noted that the Ministry of Justice does not register all normative-legal acts. For example, in accordance with the President’s Decree No. 493 of 21 May 1998, acts of the General Prosecutor’s office of Ukraine are not liable to state registration in the Ministry of Justice. As a result of this many normative legal acts of the General Prosecutor’s office are not published. The section «General Prosecutor’s office» on the website www.rada.gov.ua contains only 6 documents concerning international cooperation of the General Prosecutor’s office with offices of the prosecutor of other countries and 2 documents on the procedure for presentation by the State financial monitoring agency of generalized materials on financial operations. «Liga-Zakon» includes only 4 documents adopted in 2003 and 2 documents adopted in 2004. At the same time, such important documents as the Order of the General Prosecutor of Ukraine No. 89 of 28 December 2002 «List of documents arising from the activity of offices of the Prosecutor which contain confidential information and which are classified as being of limited access ‘For official use only’», as well as the «Instructions on the procedure for consideration of and decisions on appeals, and personal reception of citizens in offices of the Prosecutor of Ukraine», approved by order of the General Prosecutor of Ukraine No. 7ãí of 9 April 2004, which clearly need to be published, are unknown, and as far as we have been able to ascertain, have never been published at all, which is a violation of Article 57 of the Constitution. This unacceptable situation must be rectified: all open normative legal acts of State executive bodies should be published and added to computerized legal systems.

The situation as regards access to normative legal acts of regional State executive bodies and bodies of judge’s jurisdiction was confirmed by a decision made by the Plenum of Ukraine’s Supreme Court of 27 December 2002 (on reversing judgments by the Kyiv City Appeal Court of 15 October 2002, and that of 13 November 2002 on launching criminal investigations against President of Ukraine Leonid Kuchma). [15]

This excessively inflexible approach by both the legislators and the Supreme Court to the problem in practice leads not to the impartiality of the court, but to indifference and excessive self-restrictions on the part of courts. In any case, as far as investigations into allegations of torture are concerned, such an approach shows itself to be especially flawed.

Such features of the legal system do not encourage courts and prosecutor’s offices to take decisive measures, where there are indications of ill-treatment, but, on the contrary, in many cases, hamper not only any effective response to complaints, but also the very submission of such complaints by victims, especially those who are already held in custody.

3.2. Independence of investigation

According to section 112 of CPC, the investigation of cases concerning a crime in which law enforcement officers are implicated is in the exclusive jurisdiction of the Offices of the Prosecutor.

In some cases this section of CPC makes it possible to infringe standards of impartiality. For example, according to point 3 of Article 112, possible ill-treatment on the part of «servicemen of the Ukrainian Armed Forces» at the first stage will be investigated by a commander of the military unit. According to point 5 of the same Article, a complaint about ill-treatment by an officer of «a penal institution, pre-trial detention centre, corrective labour and treatment centre, and corrective labour settlement» will be considered by a head of the respective facility. Only if those officials launch a criminal investigation, does the prosecutor’s office take over.

For example, Volodymyr Kucheruk was held in Kharkiv pre-trial detention centre (PTDC) No. 27 from 16 April 2002 to 17 July 2002. Although a forensic medical examination established that he was suffering from a worsening of his psychiatric disorder, he was held there for over one and a half months. On 8 July 2002, the PTDC personnel violently suppressed his inadequate behaviour, and, at the decision of the PTDC head, he was put in a disciplinary cell, where he was held handcuffed for a week. Kucheruk’s mother submitted a complaint to the Kharkiv Regional Prosecutor’s Office however the examination was carried out by the head of PTDC No. 27, who refused to initiate a criminal investigation. After this refusal was appealed, the same official conducted an additional inquiry – with the same result. Only after a second appeal, did the judge overturn the resolution by the Head of the PTDC to refuse local self-government is even worse than the situation with central State executive bodies. Local bodies do not send their acts to the central computer legal bases on a regular basis and do not always place them on their own sites, most of which only appeared in 2002. Moreover, not all local bodies have managed to create their own sites. That is why the situation quite often arises that local communities have no opportunity to access even such important acts as the local budget. Sometimes the budget is concealed deliberately, as, for example, in Severodonetsk, where the budget was made public only at the request of the town prosecutor following an appeal from the Luhansk branch of the Committee of Voters of Ukraine.

The problem of access to court decisions is only beginning to be resolved. As already mentioned, all decisions of the Constitutional Court are published, both in the Internet and in printed editions. The most important decisions of the Supreme Court are also published. As for decisions of appeal and local courts, as well as economic courts, these decisions are published rarely and at random, this being caused by their great quantity. For example, in 2004 about 3 million decisions were taken on civil cases. The huge number of court decisions causes problems in creating the appropriate databases.

One should mention that there are a certain number of normative legal acts, adopted by the President, State executive bodies or bodies of local self-government, which should be open, but are illegally classified and are not published. This problem is considered below.

 

1.5. Requests for information

Human rights organizations constantly use requests for information in their practice in order to obtain official data on the situation as regards human rights in the country. The Kharkiv Human Rights Protection Group has twice – in 2001 and 2004 – carried out an experiment whereby requests for information were sent simultaneously to the majority of central State executive bodies and the Supreme Court, all regional bodies of the Ministry of Internal Affairs (MIA), the General Prosecutor, the Ministry of Justice, the State Committee on Television and Radio, Appeal Courts to gain information and to check how state bodies implement current legislation.

According to Articles 32-34 of the Law «On information» requests for information must be considered by State bodies within 10 days; within this term the State body must inform the author of the request in writing that the request will be answered or that the requested information may not be divulged. Any refusals, furthermore, must be substantiated. The requests must be answered within a month. If the answer cannot be prepared within a month, then the State body must inform the requesting side about the delay in providing the answer, explain the reasons why the request cannot be dealt with within the legally stipulated period and state when the answer will be provided.

Not one single State body of those who we approached answered within 10 days that the request would be satisfied or turned down. Only from the Supreme Court, the Ministry of Justice, the State Department on Penal Issues and the State Department on Nationality and Migration Issues did we receive a satisfactory answer within a month. Answers arrived with infringements in the time periods from the Ministry of Employment and Social Policy, the Ministry of Internal Affairs, the Security Service of Ukraine (SSU), the Ministry of Education (after a repeat request), the Commission on Pardoning under the President of Ukraine. No replies at all were received from the Ministry of Defence, the Ministry of Health and the General Prosecutor. The responses themselves were incomplete, and we were frequently advised to turn to other departments, primarily the State Committee of Statistics. All State bodies do, indeed, pass on their information to the State Committee of Statistics in the approved form. However, we approached the departments which gather and process information in their fields and asked in the main for information which is not contained in statistical yearbooks.

We received substantial answers from the Ministry of Justice, the Supreme Court, the State Department on Penitentiary Issues and the State department on Nationality and Migration Issues. For example, the Ministry of Justice sent averaged statistical data about the financing of regional, district (town) and military courts from the state budget, as well as the number of judges against whom disciplinary measures had been taken and those dismissed. The State Department of Ukraine on Penal Issues answered our questions regarding the financing of the penal system, and gave data as to the level of illness and mortality in penal institutions. Only the department of higher education answered our questions, other department of the Ministry of education did not answer at all.

As regards regional State executive bodies, the situation here is even worse: around 30% of the bodies answer, more often than not with an infringement of the time periods stipulated by legislation. Another 30 – 40% reply after receiving a repeated request, and 30 – 40 % do not reply at all (this does not concern regional departments of Justice, which respond to requests, largely complying with legislation). Refusals to provide information are received more often than substantial responses.

Regional offices of the Prosecutor are particularly bad at responding to these requests. We approached the General Prosecutor and 27 of its regional offices in 2001 and 2004 for information regarding supervision over adherence to the law in law enforcement bodies. In 2001, we received 8 replies with the information requests, although 6 of these were only to launch a criminal investigation and sent the case-file to the regional Prosecutor’s office for an investigation to be organized. However, because the Prosecutor’s office started its inquiry only in the fall of 2004, a major part of its conclusions was based upon materials of the inquiry made by the Head of the PTDC.

3.3 Slowness of investigation

Investigations into claims of torture by law enforcement officers are conducted extremely slowly. Investigations can drag on for years.

For example, an investigation into a claim by Viktor Yatsenko (Kharkiv) began in April of 1997 and is still in process.

Oleksy Afanasyev (Kharkiv) lodged his claim in April 2000. The investigation is still continuing.

An investigation into a claim by Yevhen Bocharov (Kharkiv) began in April of 2002, but was terminated again in May of 2004. Bocharov’s complaint concerning the termination of the investigation, submitted to the court in July 2004, is yet to be considered.

Investigation concerning Volodymyr Kucheruk’s complaint is yet to begin. In December of 2004, a complaint about another refusal to open a criminal case was submitted.

3.4. Access to evidence

It is especially vital when investigating claims of torture to obtain timely and high-quality medical evidence. Doctors’ records, reports of medical examinations and conclusions of medical forensic experts can serve as evidence.

However, within the legal system, the possibility of obtaining an independent expert opinion is extremely limited.

In the first half of the 1990s, trends in legislation led us to hope that an alternative (non-governmental) expert examination would gradually develop, thereby laying the groundwork for the creation of wider access to independent expert opinion of people involved in legal proceedings.

At the end of 1992, the Basis for Ukrainian legislation on healthcare was adopted.[16] Article 6 of the Basis stipulated the citizen’s right «to have an independent medical examination conducted» in cases where he or she disagrees with the conclusion of the State medical examination, the imposition on him/her of measures of forcible treatment and in other instances». Article 73 specifically addressed this alternative medical examination: «In cases where a citizen disagrees with the conclusion of the state medical examination and in other instances prescribed by the law, at the demand of the citizen, an alternative medical (medical social, medical military, medical forensic, forensic psychiatric) examination or post mortem examination shall be conducted… Citizens shall themselves select an examination institution or experts…».

At the beginning of 1994, the Law of Ukraine «On forensic examination»[17], as well as the Law of Ukraine «On the introduction of amendments to Basis for Ukrainian legislation on healthcare»[18] were adopted. A citizen, disagreeing with the conclusions of experts who were assigned by an investigating authority or court, was limited to the option of requesting an investigating authority or court to order an additional or other examination, the latter bodies not being obliged to agree to assist..

By the Law of 23 December 1993[19], the Criminal Procedure Code of Ukraine was amended in such a way as to stipulate that a lawyer should be given «the right to collect information about facts, which could be used as evidence in a case, in particular… to obtain written conclusions by professionals on any issues requiring special expertise». However, the status of those conclusions, which were to be obtained at a lawyer’s request as evidence acceptable in court, was and remains unclear. In any case, these conclusions cannot replace the conclusions by experts, appointed by an investigating authority or court, and, at best, can lead to the ordering of another examination.

Nonetheless, from 1992 to 2000 in Ukraine there were a large number of non-State medical, forensic and other experts, and many non-State expert bureaus were set up.

On 1 June 2000, Section 4 of the Law of Ukraine «On entrepreneurship[20] was amended, as a result of which, part 2 of this section read: «activity connected with conducting forensic, medical forensic, forensic psychiatric examinations… can be carried out only by State enterprises and organizations».

Then finally, in 2004, the Law of Ukraine «On forensic examination» was amended so that several examinations, the conclusions of which are decisive in a criminal investigation, could be carried out only by «specialized state institutions».

According to the current text of Article 7 of the Law of Ukraine «On forensic examination», «forensic and expert activity connected with conducting forensic, medical forensic and forensic psychiatric examinations are carried out exclusively by State specialized institutions».

The same Article contains a list of agencies, under which these specialized institutions can operate. In particular, the «partially answered. 11 regional offices of the Prosecutor recommended that we approach other departments (5 of these recommended approaching the General Prosecutor as the highest body in the system of prosecutors) and only two prosecutor’s offices – that for the Autonomous Republic of the Crimea (ARC) and for Sevastopol – stated that the data requested was information classified as «for official use only». At that time, 4 regional offices of the Prosecutor did not respond at all. By 2004, the number of those who stated that the data requested was information classified as «for official use only» had tripled, the number of prosecutor’s offices who did not respond at all had doubled, the General Prosecutor himself did not answer, and finally, the number of regional prosecutor’s offices which satisfied the request for information had become four times lower. (More details can be found in the bulletin «Svoboda vyslovlyuvan i pryvatnist» / / «Freedom of Expression and Privacy» No. 1, 2002 and Nos. 2 and 3, 2004[1]).

This situation compelled us in June 2004 to lodge a complaint with the court about the illegal activities (or, in the case of no response, inaction) of offices of the Prosecutor. Although these complaints must, according to law, be considered within 10 days, only in one court case has a decision been taken, with the other court proceedings still continuing. The Pechersky district court satisfied the claim and bound the General Prosecutor of Ukraine to respond to the request for information, however the latter did so only four months after the decision was passed, and then not voluntarily. Having waited in vain for a response for two months, we sent a letter to the Pechersky Court with a demand to issue a writ of execution in order to approach the executive service. Instead of this, the court sent the General Prosecutor a document unheard of in procedural legislation, entitled «A Reminder of the need to carry out a court decision». Following this, we received a response, but not an answer in substance, but a standard formal reply.

One should note that regional departments of the Ministry of Internal Affairs have become much better at answering requests for information, most of all owing to the principled position of the central apparatus of the State specialized institutions» include:

– research institutions of forensic examination under the Ukrainian Ministry of Justice;

– research institutions of forensic examination, medical forensic and forensic psychiatric institutions under the Ukrainian Ministry of Healthcare;

– expert services of Ukraine’s Ministry of Internal Affairs, the Ministry of Defence, the Security Service, and the State Border Service.

Such an approach by the legislators aimed at maintaining control over the conducting of forensic examinations is hardly justifiable from the point of view of effective legal proceedings. According to an analysis carried out by the Supreme Court of Ukraine, «a great number of cases are not being considered for a long time because the examinations ordered by courts take months or even years». Such a situation shows that the number of experts and expert institutions is not sufficient.

However this approach is even more dangerous from another point of view. This turn in the legislation leads to a monopoly of «specialized State institutions» in the field of conducting expert examinations. This means not only that people involved in legal proceedings lose any possibility of seeking an independent expert opinion, but also seriously undermines the guarantees of independence of experts, who work in such «specialized institutions».

Firstly, the legislation does not set out any procedure for creating, reorganizing or closing such «specialized state institutions», nor for the criteria which govern such institutions.

Secondly, the legislation does not provide experts with safeguards adequate to protect them from unlawful pressure by their management. Guarantees of hiring and firing experts are the same as the general guarantees for hired employees, provided by Ukraine’s labour legislation. Professionally sound experts, whose work could contradict «instructions» from their management, have insufficient guarantees that they will not be dismissed. In view of the monopoly of «specialized institutions», for a forensic expert, his or her dismissal from one such institution would virtually destroy any possibility of practicing as a forensic expert. Thus, the guarantees provided by the labour legislation are not sufficient to secure his or her independence.

Therefore, the management at such specialized institutions has enormous scope for influencing the work of an expert and, in this way, for undermining the impartiality of examinations conducted or conclusions drawn.

It must be noted that in order to obtain expert status, it is necessary to receive professional attestation. However, such attestation is only available for employees of specialized institutions. Hence, employment in such an institution becomes a prerequisite for having the general possibility to obtain expert status and to conduct expert examinations. The monoMIA (for more details, see «Svoboda vyslovlyuvan i pryvatnist» No. 3, 2004).

We approached the appeal courts with requests for information regarding the number of permits for the interception of information from channels of communication, and how these were distributed between operational subdivisions that have the right to carry out investigative operations. Although we requested only de-personalized statistical data, all the courts refused to provide the information under various pretexts, referring to its secret nature. Only the Chernivetsky Appeal Court gave a general number of permits issued in 2003. We also received a reply in substance from the Supreme Court of Ukraine.

Some actions of state bodies may be regarded as indirect responses to our requests. For instance, the SSU declassified «The list of items of information that constitute state secrets» after our request for information as to the legality of the grounds for classifying the List as secret and after an active exchange of letters and phone calls on this theme. The Commission on Pardoning under the President of Ukraine has, since Autumn 2001, regularly informed the press about the number of convicted prisoners who have been pardoned.

In our opinion, the attitude on the whole of State executive bodies to their obligation to provide all interested individuals with information about their activity, in accordance with the Constitution and the Law of Ukraine «On information» is openly contemptuous. This demonstrates in the main that State executive bodies continue to pay no heed to society which has empowered them to fulfil designated functions and is entitled to except accountability.

 

2. Classification of information. State secrets

2.1. Legislative regulation

Article 30 of the Law «On Information» gives a definition of classified information which in legal terms is divided into confidential and secret.

Since confidential information consists of information which is owned, used, or managed by specific individuals or legal entities, the rules for providing or disseminating such information are determined by the owners themselves. An exception would be information, the legal procedure for which is set by Parliament (issues involving statistics, environmental protection, banking operations, taxes, etc.), as well as information, the concealment of which could cause a risk to life and health.

The only law that completely regulates limitations on access to information is the Law «On State secrets», passed in January 1994. In August 1995, a «List of items of information that constitute state secrets» was registered with the Ministry of Justice. In September 1999, significant amendments were introduced into the Law «On state secrets».

Article 1 of the Law «On state secrets» defines a state secret as being a form of secret information in the area of defence, economics, science and technology, foreign relations, state security and the protection of law and order, the divulgence of which could endanger the national security of Ukraine, and which are therefore subject to State protection. The degree of secrecy of the information is determined by the potential damage which could be caused by its divulgence, and different restrictions are introduced according to the degree of secrecy.

The criteria for determining the degree of secrecy were the responsibility of the State Committee of Ukraine on State Secrets and the Technical Protection of Information. This same Committee was a special central executive body for ensuring the defence of state secrets. However, at the beginning of 1999 the Committee was dissolved, and its powers were transferred to the SSU.

Article 9 of the Law stipulates that the classification of information as being a State secret shall be carried out on the basis of a substantiated decision by a State expert on issues of secrecy. Such State experts are the Head of the Verkhovna Rada, other officials in other State executive bodies, authorized by the President of Ukraine to fulfil these functions in the relevant fields of State activity at the application of the head of the relevant body. Article 9 contains a wide list of authorities, rights and duties of State experts. In particular, a State Expert defines the grounds on which information should be classified as a State secret, presents conclusions as to the harm to the national security of Ukraine in the case of the divulgence of the specific secret information, the degree of secrecy of the information («of particular importance», ««top secret», «secret»), the period of secrecy (30, 10 and 5 years, respectively – Article 13).

Article 8 lists the information in different spheres of State activity which may be classified as State secrets. The fact that such an article exists is, undoubtedly, a significant positive feature of the Law. However, serious doubts arise at the present in this list of such information in the area of defence as the size of the Armed Forces of Ukraine and of other military formations; in the economic sphere – of the financing of State orders for providing for defence and security requirements; in the sphere of State security and protection of law and order – of the financing of investigative operations.

One should also note that Article 8 of the Law prohibits the classifying as secret of any information if this would impinge upon the content and scope of constitutional human and civil rights and freedoms, or cause harm to the health and security of the population. Information about the state of the environment, about the quality of food products and goods may not be made secret, nor may information about accidents, catastrophes, dangerous national phenomena and other extraordinary events which havpoly of «specialized institutions» allows their management to establish «special» staff recruitment at the stage of taking on specialists. As there is no independent agency responsible for staff recruitment and attestation of experts, considerations of loyalty of a given specialist could outweigh considerations about his or her professional skill during recruitment by management.

Moreover, a part of the «specialized institutions», as before, are within the system of the Ministry of Internal Affairs, the offices of which take the side of the prosecution in most criminal cases. This fact alone, from the point of view of impartiality, could raise doubts in experts’ objectivity among participants in the legal proceedings.

In view of the nature of legal proceedings in Ukraine, and the lack of competition between expert examinations, the abovementioned flaws in the system of «specialized» expert institutions could lead and are leading to a fall in the quality of expert conclusions, loss of skills and scientific impartiality among experts, to manipulation of expert knowledge in order to fulfil objectives very far-removed from the task of objectively establishing the circumstances of a case.

Together with the vulnerable position of the victim of torture and ill-treatment, such a situation with expert examinations has a highly detrimental effect on the possibility of preventing torture and ill-treatment and of punishing its perpetrators.

3.5. Participation of victims in the investigation of torture

The European Court of Human Rights believes that adequate participation of the victim or his / her close relatives in the investigation of the case is a basic guarantee of public control. For example, in the case Anguelova v. Bulgaria, the Court noted: «There must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory, maintain public confidence in the authorities' adherence to the rule of law and prevent any appearance of collusion in or tolerance of unlawful acts. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests».[21]

Effective participation of victims of torture is seriously complicated by the fact that before the criminal investigation is formally initiated, they have no definite procedural status as far as the investigation is concerned given that the checks which are conducted before a decision whether to launch a criminal investigation take place «outside procedure». So, he or she cannot in any way influence the direction of investigation; at this stage, the rights of a victim of torture, in particular, the right to a lawyer are not available.

If we take into account the practice of delaying an inquiry, as well as the fact that prosecutor’s offices have wide discretionary powers as regards the decision to launch a criminal investigation, this flaw in many instances proves to be fatal for the effectiveness of an investigation.

In addition to the decision to launch a criminal investigation, the law requires a separate action on the part of the investigating authority to recognize the plaintiff as victim. This provision is stressed in one resolution by the Plenum of the Supreme Court:

«In accordance with Part 2 of Article 49 of CPC, a person who has suffered moral, physical, or material damage from a crime acquires the right to participate in the process, as prescribed by the law, only after he/she is recognized as victim. The recognition of a person as victim in a case or refusal toe taken place or may take place and threaten the safety of citizens. Other things which may not be classified as secret are: the state of health of the population; the standard of living, including food, clothing, housing, medical services and social security, as well as socio-demographic indicators; the state of law and order, of education and culture of the population; violations of human and civil rights and freedoms; unlawful activities by State executive bodies, bodies of local self-government and their officials; other information which, in accordance with the laws of Ukraine and the international agreements to which it is signatory, cannot be made secret. However this does not mean that the relevant information is absolutely open, since this Law covers only State secrets and does not cover other types of limitations in the field of information.

Responsibility for classifying the information listed above as secret information, as well as certain other violations of the Law on State secrets is set out in Articles 212-2 of the Code of Ukraine on Administrative Offences, and allows for a fine from one to three minimum wages before tax, and for officials – from three to ten minimum wages before tax, and for the repeated commitment of this offence within a year – from three to eight minimum wages before tax and for officials from five to fifteen minimum wages before tax, respectively.

Amendments to the Law «On state secrets», which were approved by the Verkhovna Rada of Ukraine in September 1999, significantly increased the range of information which can be classified. As well as information in the fields of defence, economics, foreign affairs, state security and protection of law and order, which could be classified as state secrets, information in the field of science and technology was added, specifically information «about scientific, scientific research, research-construction and design plans, on the basis of which one may create progressive technology, new forms of production, products and technological processes which have important defence or economic significance or significantly influence the foreign economic activity and national security of Ukraine» (Article 8). In our opinion, this is a fundamental mistake of the authors of the new version of the Law since classifying as secret in th recognize them as such must be procedurally recorded by a resolution issued by a detective inquiry unit, investigator, prosecutor, judge or a court decision».[22]

The prevailing doctrine gives the criminal investigation units additional possibilities for manipulation in order to prevent a victim, his/her relatives or a lawyer from participating in the investigation. Participation of a lawyer in this case is of decisive importance, because in many cases at the time of investigation, a victim is held in custody, thereby he/she is physically restricted in his/her possibility to take part in the investigation.

Delay in recognizing a person as victim is a common phenomenon. This is confirmed by the fact that the Plenum of the Supreme Court has specifically noted in its resolution:

«In accordance with Part 2 of Article 232 of CPC, courts are obliged to respond to disclosed facts of unwarranted delays in recognizing a person as victim (when the harm resulted from a crime is evident), caused a detective inquiry unit or criminal investigation, separate decisions (resolutions)».[23]

Another important issue concerning effective representation of a victim is worth mentioning. If a victim from torture is held in custody, then his/her legal representation is complicated by several formal hurdles.

According to CPC and the Law on Preliminary Detention (section 12), only the defending counsel, in the meaning that is attributed to this term in Article 44 of CPC, has the right of access to a detainee. A legal representative of the person, who has submitted a complaint about the use of torture to him/her, is not covered by this regulation. Consequently, if the victim from torture continues to be held in custody, he/she has no possibility of meeting with his/her legal representative, unless this legal representative and the defending counsel in the criminal investigation, where the victim is defendant, are one and the same person. In addition, the same provisions of the Law on Preliminary Detention stipulate that permission from «the person or body conducting the case» must be obtained in advance. Since, in the legal system, a «criminal investigation» begins at the moment when a formal decision to launch such an investigation is taken, a meeting between the victim, who is held in custody, with his/her legal representative is virtually impossible.

Close relatives can be representatives of victims (Article 52 of CPC). Procedurally, it is possible to ‘replace’ a person, who died in the course of investigation, with a close relative. In this connection, there could be complications with recognizing the person as victim, if the causal link between events in question and death is the subject of investigation. Relatives of a victim of torture, who died, possibly as a result of the torture, could end up in a vicious cycle: they would be unable to obtain the status of victim until it is established that the victim’s death was the result of the actions which are the subject of the complaint; at the same time they would be unable to effectively participate in the investigation, which is intended to establish this fact.

The list of close relatives determined by the law is restricted (Article 32 of CPC). This list includes parents, a spouse, siblings, grandparents, and grandchildren.

3.6. Access to material on the case

One of the most adverse consequences of the lack of legal representation at the stage before a criminal investigation is formally initiated is the complications this creates is gaining access to the material on the case. Here too there are a range of formal impediments.

For example, on 8 January 2003, on the premises of the Leninsky District Police Station in Vinnytsa, Anatoly Komakha received severe bodily injuries to the head, which, according to the conclusion of a medical expert, constituted severe bodily injuries in terms of their danger to life. Komakha approached the Vinnytsa Regional Prosecutor’s Office with an application to have a criminal investigation initiated into this matter. In order to protect his rights and interests during the investigation, he turned to a lawyer and made an agreement about receiving legal assistance.

Concerning the field of science and new technology serves only to guarantee backwardness in the future and to encourage the emigration of specialists. In the sphere of State security and law and order, new positions have appeared: information can be classified as a State secret «about the personnel of bodies which carry out investigative operations, «about the implementation of rules of secrecy in State executive bodies and bodies of local self-government, in enterprises, institutions and organizations, State programs, plans and other measures in the area of protecting State secrets», «about the organization, content, state and plans for development of the technical protection of secret information», and «about the results of inspections carried out in accordance with the law by the Prosecutor within the framework of appropriate surveillance over adherence to the law, and about the content of documents of detective inquiry units, criminal investigation and court procedures concerning the spheres mentioned in this article».

The last point is entirely incomprehensible. It is, in our view, inadmissible to classify as secret information the Prosecutor’s surveillance over adherence to the law, particularly given that the range of information which can be classified as State secret in the fields mentioned above is very wide.

New Articles have been introduced which describe in detail the permission procedure for carrying out activity connected with State secrets, as well as the activity of the SPB – secret procedure bodies (not subdivisions, but actual State bodies). SPB have a wide range of rights and levers of influence over the work of enterprises, institutions and organizations which carry out activity connected with State secrets. If the creation of SPB is foreseen by staffing distribution, the position of deputy head in charge of procedure is introduced, who has the duties and rights of a head of the SPB. The SPB are made up of specialists who have access to State secrets with the level of secrecy of «top secret» or, if necessary, «of particular importance». SPB have the right to take part in carrying out the checking procedure for employees whose work is connected with State secrets, to check the condition and organization of work from the viewpoint of protection of secret information and even to conduct searches at workplaces – as far as we can see, this is what is meant by the right «to carry out checks on adherence to the rules of secrecy in the working place of employees who have access to State secrets».

Most unfortunately, we have to state that the State policy on protection of State secrets has changed in the direction of creating still greater secrecy.

Article 39 sets out responsibility for infringing legislation on State secrets, in particular, for classifying information as secret which, in accordance with Article 8, may not be made secret, for applying the stamp for secret information to information which is not a State secret, and also for classifying something as secret without grounds. However, since all this activity is effectively secret and covers wide spheres of activity of the State, and considering that for many decades virtually all State activity was basically secret, it is difficult to expect swift progress in this sphere. It is precisely for this reason that free access to the «List of items of information that constitute state secrets» is of great importance.

Amendments to the Law «On state secrets» did not affect the procedure for compiling or publishing the List of items of information that constitute state secrets (hereafter LIISS). According to Article 12 of the Law (Article 10 in the 1994 version), amendments and additions to LIISS are to be published in official publications not more than three months from the day of receipt of the appropriate decision of the State expert on issues of secrecy. LIISS was printed in the «Uryadovy kuryer» («Government messenger») in August 1995, and reprinted several times in various publications. However, the first amendments to LIISS, introduced by Orders of the National Committee on State Secrets ¹2 of 29 September 1995, ¹3 of 12 December 1995, ¹1 of 16 January 1996 and ¹2 of 6 February 1996 were not published: the first two have the classification «secret», the last two – the classification «for official use only», and then LIISS itself received the classification «secret», this being a direct violation of the Law. The latter was only declassified in March 2001.

LIISS is rather wide-ranging, detailed and covers the spheres of activity of the State which are defined in Article 8 of the Law «On State Secrets». Since a detailed analysis of LIISS is beyond the scope of this article, we will limit ourselves to certain comments.

While the first part of LIISS, concerning the sphere of defence, does not raise any serious questions (particularly given that, in contrast to the Law, there is no prohibition on information about the size of the Armed Forces), part two – the economic sphere – arouses certain bemusement. For example, Paragraph 2.6 classifies the amount of medical supplies and food supplied to the Armed Forces in time of peace. How could this threaten the national security of Ukraine? Paragraph 2.36 classifies information about the financial expenditure on defence orders as a whole in Ukraine. It is not clear what defence secrets this could reveal, however it makes the budget less transparent and controllable, and this affects the interests of taxpayers.

Paragraph 2.25 also looks odd in that it classifies information about special purpose automobile roads (a description of roads leading to military and other closed access objects, as well as to big railway junctions, stations, bridges, sea and river ports). It would be diffiis case, the Vinnytsa Regional Prosecutor’s Office issued several resolutions to refuse to open a criminal case. When, after another refusal to open a criminal case, Komakha’s representative asked the Prosecutor’s office for access to the material which had formed the grounds for such a decision, she was denied it. An investigator of the Prosecutor’s office explained this by saying that legislation did not allow for interested parties and their lawyers familiarizing themselves with the material of the inquiry.

The investigator’s argument is not unfounded, since CPC does, indeed, lack a clear norm, which would provide for such a right. This right is enshrined in Article 59 of the Constitution of Ukraine and in the Ruling from 16 November 2000 by the Constitutional Court of Ukraine. This Ruling states that «by fixing the right of any individual to legal assistance, the constitutional norm ‘Everyone is free to choose the defender of his or her rights’ (Part 1 of Article 59 of the Constitution of Ukraine)», in its meaning is general and applies not only to a suspect, accused person or defendant, but also to other individuals, who are guaranteed the right to freely choose defending counsel in order to defend their rights and lawful interests… The general meaning of the provisions in Article 59 (1) of the Constitution of Ukraine is confirmed by provisions in Article 63 of the Constitution, which separately affirms the right of a suspect, accused person or defendant to defence» (Part 5).[24]

However, it would be highly desirable to directly provide clear provisions in CPC in order to secure effective participation of a legal representative of the victim of torture or ill-treatment, especially, when such a victim continues to be held in custody. This is also required by the Basic Principles on the Role of Lawyers adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (1990) which reads: «It is the duty of the competent authorities to ensure lawyers access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients. Such access should be provided at the earliest appropriate time». (Principle 21)[25].

3.7. Access to medical documents

At the present time it has become common for victims, having turned to a medical forensic expert institution and undergone medical forensic examination, to not be able to receive the relevant certificate. Very often, as well, it is impossible to obtain documents from medical institutions, where a victim was examined or treated. Medical institutions refuse to give such information referring to some instruction by prosecutor’s offices, but it is impossible to find out more about the subject matter of this instruction.

For example, Andriy Yatsuta, detained on 24 May 2004 by police officers, on 27 May turned to the Kharkiv Bureau of Medical Forensic Examination where he underwent examination. He was then treated in two medical institutions in Kharkiv. In July 2004, Yatsuta turned to the Bureau of MFE, asking them to provide him with a copy of the medical forensic certificate, as well as to both medical institutions, asking them to give him his medical documents. His lawyer also submitted the same requests. Yatsuta’s requests for the documents were turned down. In his response, the Deputy Head of the Kharkiv Bureau of Medical Forensic Examinations wrote the following:

«We cannot give you a copy of the medical forensic examination certificate because all examinations (or research certificates) are material of prelimicult to imagine special roads leading, say, to large stations which could be kept secret.

As for the sphere of State security and protection of law and order, here any information connected with investigative operations is classified (Paragraphs 4 .1 – 4.9). The Security Service, in turn, becomes entirely closed to society given that even information about the size of its staff (Paragraphs 4 .14) may not be published. Paragraph 4.17 classifies information about the status, results and prospects for cooperation between SSU and security services of other countries. It is baffling as to why information about the fact itself of cooperation, its directions, specific results and even prospects need to be concealed from society, especially given that such information appears in various media outlets and, manifestly, causes no harm to Ukraine’s interests. In our opinion, this point is clearly out of date, and requires significant editing. Paragraph 4.49 prohibits society as a whole from knowing about the actual status of protection of State secrets. It is also unclear what is understand by the words «actual status», however one gains the impression that Paragraphs 4.14, 4.18 and 4.49 are designed more to protect the interests of some agencies than those of the state.

Paragraph 4.48, connected with archival information about the death penalty, also warrants special attention. Firstly, it is not clear why this information is given the highest degree of secrecy – that of a State secret, when the sentence itself was announced quite openly. If this was for humane reasons, then it is not clear why relatives were not allowed to bury those executed and are not told where their burial place is. If the death penalty itself was imposed as a lesson and deterrent to serious criminals, as the State representatives claimed, then it should have been carried out in public. Perhaps it was in fact explained by a subconscious recognition by the State that such an act was immoral? Incidentally, according to the sense of Paragraph 4.48, the number of executions should not be classified as secret. Although the formulation is given in such a way as to allow the authorities to treat statistical data on executions as State secrets, and such cases have indeed occurred at the local level.

One positive feature can be seen in tnary inquiry and, in compliance with the Order of the Ministry of Healthcare from 17 May 1995 (point 2.21.1), a medical forensic expert is not entitled to make public data of a medical nature, which he/she has become aware of in the course of fulfilling his/her official and professional duties. A copy of the medical forensic examination certificate can be obtained only by court and investigating authorities on a request in writing».

Complaints about unlawful actions on the part of the expert institution and two medical institutions were submitted to court. At present, the complaint to one of the medical institution has been recalled, because the latter, albeit with a delay, provided the necessary documents.

This practice entirely contravenes legislation. Moreover, on a similar issue, a decision by the Constitutional Court of Ukraine was made in the case of Ustimenko,[26] according to which «the constitutional human and civil rights to information, its free access … in the amount needed for every person to exercise his/her rights, freedoms and lawful interests are fixed and guaranteed by the current legislation»; «medical information, i.e. information about a person’s health, his/her medical history… is information with restricted access. A doctor is obliged, at the patient’s request … to give (him/her) such information in full and accessible form».

The response by the deputy head also vividly illustrates how distorted the perceptions of different professional groups involved in criminal proceeding are over what constitutes investigation confidentiality. It is worthy of note that the Deputy Head of the Bureau refers to investigation confidentiality, even though in that case there was no criminal investigation to which the medical documents pertained, and the victim wanted them for the specific purpose of initiating such an investigation.

4. Recommendations

1. To clearly define the scope of the crime «torture» in Chapter XVIII «Official crimes» of the Criminal Code of Ukraine, and to agree the elements of this scope of the crime with the conceptual apparatus of the General Provisions of the Criminal Code;

2. To introduce statistics in courts and law enforcement agencies concerning crimes, which contain elements of «torture» in the meaning of Article 1 of the UN Convention against Torture;

3. To create legislative provisions, which make it impossible to apply amnesty and parole for people who have committed actions, which have elements of «torture» in the meaning of Article 1 of the UN Convention against Torture;

4. To create effective mechanisms of public control over investigations into complaints about torture and ill-treatment, which take place in law enforcement agencies and other closed institutions;

5. To review the legislative framework of forensic examination in order to provide the involvement of non-state experts and expert bureaux;

6. To exclude from legislation those provisions which make it impossible or complicated for victims and their legal representatives to obtain documents containing medical information concerning victims, including conclusions by medical experts, regardless of the title and nature of those conclusions;

7. To review the provisions of evidence law, which are present in the Criminal Procedure Code of Ukraine and court practice in order to assign the same validity as evidence to conclusions provided by independent medical and other experts, who conduct studies at the request of the alleged victim of torture, as that of conclusions made by experts assigned by an investigator or court;

8. To amend legislation in order to provide legal aid for people on low incomes, who seek to have criminal investigations and other legal proceedings concerning alleged torture and ill-treatment initiated;

9. To introduce provisions into the legislation stipulating that it is inadmissible to use as evidence any testimony from an accused (suspected) person, obtained at pre-trial stages of a criminal investigation without the assistance by lawyer. Before these amendments are introduced, it would be desirable, if the Supreme Court develop regulations concerning admissibility of confessions and procedures for examining whether they were given voluntarily. Suche appendix to the section of the LIISS «General Provisions» Paragraph 5, where the terms and concepts used in the LIISS are defined (Order of the SSU, ¹3 58 of 2 July 2004).

Responsibility for disclosure of state secrets is regulated by Article 328 of the Criminal Code of Ukraine (Article 67 of the CCU in the 1960 version) and is punishable by deprivation of liberty for a period from two to five years, or, if the disclosure had grave consequences, then for a period from five to eight years. This Article may be applied only to those persons who were entrusted with this information or learned about it in the course of their official activity.

There were not many criminal cases concerning disclosure of secret information in 2004. According to information from the Ukrainian Security Service[2], six citizens of Ukraine were stopped while trying to pass information which constitutes a State secret, as well as confidential information which is the property of the State, to representatives of foreign countries. The illegal plans of Ukrainian citizens, connected with passing on state secrets, were foiled.

2.2. Access to protected information which does not constitute a State secret

In accordance with Statute 30 of the Law «On Information», secret information is that which constitutes « a State secret or other secrets allowed for by legislation, the disclosure of which could be harmful to an individual, society or state».

The definition of state secrets and the rules for access to information which is deemed a state secret are prescribed in the Law of Ukraine «On State secrets». As for «the other secret information allowed for by legislation», the situation is much less clear. The procedure for classifying information as secret in accordance with Statute 30 of the Law «On information», is determined by the appropriate bodies in compliance with the demands of the Law «On information». Since Statute 21 of this law stipulates that the sources and procedure for receiving, using, circulating and keeping official information from state bodies at all levels shall be defined by the laws relating to these bodies, it is entirely reasonable to except this to be reflected in the relevant laws, for example, «On the Police» (1990) or «On the Security Service of Ukraine» (1992). Article 3 of the Law «On the Police» prohibits the disclosure of information which constitutes official secrets, while Article 7 of the Law «On the Security Service of Ukraine» – prohibits the disclosure of military, official and commercial secrets, however nowhere in the law is there a definition of these terms.

In this way, the classification of information as secret is, presumably, determined and regulated by internal departmental acts or instructions, and the basis for their creation can only be Article 37 of the Law «On information», which contains general provisions about information which does not have to be provided on request, in particular, «information that are not subject to disclosure in accordance with other legislative or normative acts». One should note here that, in accordance with Article 21 of the Law «On information», unpublished normative acts which concern human rights and freedoms do not have legal force.

Which information does the state protect and on what grounds? Some kind of answer to these questions is provided by the Concept of Technical Protection of Information (hereafter TPI), approved by the Cabinet of Ministers of Ukraine in October 1997. According to the Concept, the leak of information which constitutes a State secret or other secrets allowed for by legislation, confidential information which is the property of the State, is one of the main potential threats to Ukraine’s national security in the sphere of information. The threat to the security of information in Ukraine is explained, according to the Concept, by various factors, among which in first place would be a «lack of a thought-out State policy in the sphere of information technology, which could lead to uncontrolled and illegal access to information and its use», and also «the activity of other states aimed at gaining an advantage in foreign policy, economic, military and other spheres».

Technical protection of information is defined in the Concept as «activity aimed at ensuring through technical and engineering means of the procedure for access, the integrity and accessibility of access (making it impossible to block access) of information, which constitutes a State secret or other secrets allowed for by legislation, confidential information, as well as the integrity and accessibility of open information which is important for individuals, society or the State». This definition is made more precise by one of the principles of the formation and implementation of State policy in the sphere of TPI: «the need to protect, through technical and engineering means, information which constitutes a State secret or other secrets allowed for by legislation, confidential information, which is the property of the State, open information which is important for the State, regardless of where this information is circulated, as well as open information which is important for individuals or society if this information is circulated in State executive bodies and bodies of local self-government, the National Academy of Sciences, the Armed Forces or other formations, law enforcement bodies, in State enterprises, in State institutions and organizations».

Of the concepts mentioned in this list, only the concept of State secret is clearly defined by the law. The concept of «confidential information, which is the property of the State» remains unclear. «Open information which is important for the State, rh regulations should provide for the following:

- when there is a claim by a defendant concerning the involuntary nature of his/her confession made during a pre-trial investigation, it should be excluded from the evidence, unless a prosecutor proves the opposite beyond reasonable doubt;

- when determining whether a confession was voluntary, the court should take into account all circumstances, which accompanied the obtaining of the confession: the conditions and period of being held in custody by a law enforcement agency, access to a lawyer, possibility to communicate with outside world, etc.;

- the fact of bodily injuries should always entail the obligation on the part of a prosecutor to prove beyond reasonable doubt that no official was involved in inflicting these bodily injuries, or that the obtained confession was not connected with events, which resulted in the bodily injuries;

- absence of medical evidence concerning the use of torture or other forms of ill-treatment cannot as such exclude the trustworthiness of the claim about such treatment;

- when assessing why medical evidence is absent, the court should take into account the possibility for a defendant to approach a doctor or expert of his/her own choosing in timely manner, his/her access to a lawyer, the possibility to communicate with outside world, etc.;

- in cases, when a defendant earlier did not claim about extortion of her or his confession with the use of any form of ill-treatment, a prosecutor should prove that the defendant had a real opportunity to claim it shortly after the respective events, taking into account, among other things, access to a lawyer, period of detention without court control, grounds for delay in his/her bringing to a judge after arrest, etc.;

- assessing the trustworthiness of defendant’s claim about the use of any form of ill-treatment meted out to him or her, the court should assess the due diligence of the investigation into his/her claim, if such an investigation was conducted, in particular, the time of ordering expert examinations and conducting other investigations in order to determine whether the defendant received sufficient and practical possibilities to make the necessary claims and provide necessary evidence;

- to give the necessary instructions to prosegardless of where this information is circulated» is also an endlessly vague concept.

Such formulations lead to only one conclusion, this being that, ultimately, State officials would like to take any decisions about which information should be protected solely at their own discretion. Moreover, the Concept foresees the creation of TIP units in all places where there is a need to protect information. In our view, this gives serious grounds for believing that the implementation of the Concept will significantly and unwarrantedly restrict the access of the community and, simply, of individuals, to entire categories of information which they require.

As time was to tell, our fears were not unfounded. On 11 May 2004, the Verkhovna Rada of Ukraine passed the Law «On amendments to certain legislative acts of Ukraine (concerning the protections of State secrets)». This law had previously been passed on 9 July 2003, however the President had used his power of veto after severe criticism of this Law from both Ukrainian and foreign experts, and paragraph 6 of the President’s comments had demanded that «a definition be given of confidential information which is the property of the State». Nevertheless, the Law was passed again in virtually the same form. It significantly narrows the boundaries of the constitutional right to information (this in itself being a violation of Statute 64 of the Constitution which prohibits any limitation on constitutional rights and liberties, aside from cases specifically allowed for by the Constitution). We would mention Part 1 of Article 34 of the Constitution: « Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice». Part 1 of Article 2 of «Freedom of the Activity of the Printed Mass Media», the Law on the press now declares «the right of every citizen to freely and independently look for, receive, locate, retain, use and disseminate any information which is open under the rules of access with the help of printed means of mass media». The main right of journalists to information is similarly narrowed: a journalist now has «the right to freely receive, use, circulate (publish) and keep that information which is open under the rules of access (p.1 of Part 2 Article 26 of the Law on thecutors and judges to take measures for providing protection to individuals who claim that they have been subjected to torture. In particular, if this person is held in custody, to provide for his/her transfer to another place of detention;

- to exclude from the legislation the opportunity for the judge to «extend detention» of suspects held in police custody, or, at least, to introduce necessary amendments in order to transfer people, whose detention is extended by a judge, to a pre-trial detention centre, and not leave them held in police custody;

– to introduce into legislation an enforceable right of access to an independent doctor and independent expert of the detainee’s own choosing, especially for persons, who are held in custody, and to create appropriate procedure;

– to review provisions of current legislation in order to provide the right to legal representation to people who submit claims about the use of torture, regardless of whether or not a criminal investigation is launched;

– to give clear instructions to prosecutors and judges concerning immediate consideration of claims and complaints related to investigations into torture.



[1] See more details in the article by Yevhen Zakharov and Iryna Rapp: «Access to information in prosecutor’s offices regarding legality of law-enforcement agencies activity // News-letter «Svoboda vyslovluvan i privatnost» [«Freedom of Speech and Privacy»] No. 2, 2004

[2] «Podrobitsy» («Details») from 16 June 2004.

[3] The following people contributed to the research: Professor V.A. Sobolev, Doctor of Sociology (PhD); Professor I.P. Ruschenko, Doctor of Sociology (PhD); Lecturer Yu.A. Svezhentseva, Candidate of Sociology (PhD); Yu.L. Bilousov, Candidate of Sociology (PhD).

[4] ECHR, McCann and Others v. the United Kingdom: Judgment of 27 September 1995

[5] ECHR, Assenov and Others v. Bulgaria: Judgment of 28 October 1998

[6] Newspaper «Novy Den’ [«New Day»] (Kherson), 22 April 2004

[7] Newspaper «Vecherni Visti,’ [«Evening News»] 22 June 2004

[8] Newspaper «Svoboda», [«Freedom»] No. 5, 10-16 February 2004

[9] Newspaper «Sevodnya» [«Today»] No.96, 29 April 2004

[10] Newspaper «Sevodnya», ¹100, 7 May 2004 ð.

[11] See, for example, ECHR, Labita v. Italy: Judgment of 6 April 2000, § 131; ECHR, Assenov and Others v. Bulgaria: Judgment of 28 October 1998, § 102

[12] See, for example: ECHR, Denizci and Others v. Cyprus: Judgment of 3 May 2001 § 359

[13] Fourteenth General Report of the European Committee for the Prevention of Torture, § 29

[14] The very fact that a judge has such authority could be doubtful..

[15] Journal «Yuridichny Visnik Ukrayiny», No. 1-2, 4-17 January 2003.

[16] Newsletter «Vidomosti Verkhovnoyi Rady Ukrayiny», 1993, No. 4, Article 19

[17] Newsletter «Vidomosti Verkhovnoyi Rady Ukrayiny», 1994, No. 28, Article 234.

[18] Ibid., section 236.

[19] Newspaper «Golos Ukrainy», 1994, No. 39.

[20] Newsletter «Oficialnyi visnyk Ukrayiny» of 21 July 2000, No. 27, p.1, Article 1109.

[21] ECHR, Anguelova v. Bulgaria: Judgment of 13 June 2002, § 140

[22] Resolution No. 13 of 2 July 2004 of the Plenum of the Supreme Court of Ukraine «On practice of court use of the legislation, which provides rights of victims from crimes», point 2.

[23] Ibid., point 5.

[24] Decision by the Constitutional Court of Ukraine No. 13-ðï/2000 of 16 November 2000 (Case No. 1-17/2000) in the case concerning a constitutional claim by Mr. Gennadiy Soldatov as to the official interpretation of provisions in Article 59 of Ukraine’s Constitution, section 44 of Ukraine’s Code of Criminal Procedure, sections 268 and 271 of Ukraine’s Code of Administrative Offences (case about the right of free choice of a defender).

[25] Basic Principles on the Role of Lawyers Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990

[26] Decision by the Constitutional Court of Ukraine in the case of the official interpretation of sections 3, 23, 31, 47, 48 of the Law of Ukraine «On Information», and section 12 of the Law of Ukraine «On the offices of the prosecutor» (case of K.G. Ustimenko).


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