IV. Governance issues
A Ukrainian Independent Political Research Centre survey of 85 governmental body websites found that the "average level of openness in providing information is 68%" and that the Ministry of Transport and Communications provides the most information, while the Ministry of Environmental Protection has the least.1 The study also found that there was little information about "the procedure for appealing against decisions taken by the relevant agency."2
On May 25, 2006 the Cabinet of Ministers announced that "all court judgments, except those qualified as state secrets court rulings" are to be sent to a single state register "no later than 15 calendar days after the ruling is made."3 The register will be free for all to access, creating more judicial transparency.
The 1992 Act on Information4 defines only general principles of citizens' access to information personally related to them. The Act provides a right of access to government records. Individuals have the right to get access to information concerning them (Article 9). Exceptions are to be defined by law. There are methods for making official information public, including disclosing it to interested persons orally, in writing or in other ways (Article 21). Article 23 of the Act prohibits the collection of personal data without the data subject's consent.5 Any data subject has the right to know about data collection (Article 23). The right to obtain non-covert information is limited (Article 29), although there are many exceptions to this rule (Article 37). The author of a rejected or postponed request has a right to appeal the decision to a higher echelon or court (Article 34). There is limited access to the files of the former secret police under the Act "on rehabilitation of victims of political repressions," which gives the rehabilitated citizen or his heirs the right to read his personal file kept in the KGB archives. There are exceptions for national security and economic well-being reasons. Information that would affect another individual's rights and freedoms is also exempted. Confidential information includes, in particular, information about a person such as education, marital status, state of health, date and place of birth, property status and other personal details.
Access to public and private archives is regulated by the Law on National Archival Fund and Archival Bodies of December 24, 1993 (No. 3814-XII) in the version of the Law of December 13, 2001 (No. 2888-III). Article 16 provides that archival bodies have the right to limit access to documents owned by state or local communities containing state secrets, or other secrets protected by the laws until the documents are declassified by state secrecy experts. The Law on State Secret of November 21, 1999 regulates the duration of access limitation. It ranges from five to 30 years depending on the level of secrecy. Public access to confidential personal data, the disclosure of which could threaten life or the inviolability of the home, is barred for 75 years. It is possible to get access to such documents with the permission of the data subject or his heirs. Access is permitted to the staff of archival bodies, courts, law-enforcement and tax bodies if provided by laws.
On May 11, 2004, the Verkhovna Rada adopted the Law on Amendments (No. 1703-IV) to amend a number of laws in the field of protection of state secret, administrative liability for the illegal use of wiretapping, access to information, etc. The right of print media journalists to freely receive, use, disseminate and store information will be limited to information that has "open access" status (amendments to Articles 2(1) and 26(2) of the Law on Printed Mass Media). After the law had been initially adopted in July 2003, it was strongly opposed by the EU representatives, the Organization for Security and Cooperation in Europe (OSCE), the International Federation of Journalists (IFJ), domestic NGOs, and the Parliamentary Committee on freedom of speech and information. In an open address, a number of NGO representatives and politicians appealed to the President not to promulgate the law as far as its provisions violate the Constitution of Ukraine and global freedom of information standards. Due to external and internal pressure, a number of amendments were introduced at the final stage, improving the final draft. The Law on Amendments introduces the term "state-owned confidential information." This includes all information owned by the state and used by state entities, bodies of local self-government, as well as organizations and companies with mixed ownership. Access to this data is restricted. The authority to establish rules for storing and using documents containing confidential information owned by the state is given to the government (amendments to Article 30 of the Law on Information). According to the Law, it is not allowed to classify as confidential environmental information, information on disasters, statistical data, information on violations of human rights and breaches of law, as well as information that should be publicly accessible according to domestic and international laws. The Cabinet of Ministers of Ukraine is empowered to adopt a list of what is considered "confidential information" taking into consideration the provisions of the Ukrainian Constitution and international law obligations (including the provisions of Article 10 of the European Convention on Human Rights).6
Ukraine is a member of the Council of Europe (CoE). It signed, but has not ratified Convention No. 108, which provides guarantees in relation to the collection and processing of personal data, it outlaws the processing of "sensitive" data on a person's race, politics, health, religion, sexual life, criminal record, etc. in the absence of proper legal safeguards. The Convention also enshrines the individual's right to know that information is stored on him or her and, if necessary, to have it corrected. On the same day the Ukraine signed Convention No. 181, which provides for a national supervisory authority responsible for ensuring compliance with laws and regulations adopted by in pursuance of the convention and mandating that data may only transfer data to third countries if the recipient State or international organization is able to afford an adequate level of protection.7 Neither Convention has been ratified. Ukraine has signed and ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms, which forms part of its national legislation.8 The Ukraine has also signed and ratified the Council of Europe's Convention on Cybercrime (ETS No. 185), which entered into force in the Ukraine on July 1, 2006.9 The European Parliament adopted an action plan for seven countries, including the Ukraine on December 9, 2004, which has not been ratified. The aim of the plan is "to hold out the prospect, not of membership but of gradual integration into certain EU policies (e.g. education, research, environment), to improve cooperation in fighting crime and in managing borders and population movements, and also to bring national laws gradually into line so that these countries can enjoy the benefits of the internal market."10 The Ukraine has also signed and ratified Convention No. 90 (European Convention of the Suppression of Terrorism), No. 196 (Council of Europe Convention on the Prevention of Terrorism) and No. 190 (Protocol amending the European Convention on the Suppression of Terrorism), all of which attempt to establish procedures for counterterrorism measures while protecting privacy.11
- 1. http://www.khpg.org/en/index.php?id=1180732399
- 2. Id.
- 3. U.S. Dep‚Äôt of State, Country Reports on Human Rights Practices, Ukraine 2006, supra.
- 4. Law No. 2657-XII, Statute on Information, adopted by Parliament on October 2, 1992.
- 5. The Constitutional Court of Ukraine ruled in October 1997 that Article 23 prohibited not only the collection of information, but also the storage, use and dissemination of confidential personal information without the individual's consent. Verdict of the Constitutional Court of Ukraine concerning the case of the official treatment of Articles 3, 23, 31, 47, 48 of the Law of Ukraine on Information and Article 12 of the Law on the Prosecutor's Office (case of K. G. Ustimenko), October 30, 1997.
- 6. http://www.edri.org/cgi-bin/index?id=000100000150
- 7. http://conventions.coe.int/Treaty/EN/Archives/News/V3News_2005.asp
- 8. Signed November 9, 1995; ratified September 11, 1997; entered into force September 11, 1997.
- 9. http://www.welcometo.kiev.ua/pls/ili/ilic.frame_law_result2.show?p_arg_n...
- 10. http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+PRESS+B...
- 11. http://conventions.coe.int/Treaty/Commun/ListeTraites.asp?PO=U&MA=999&SI...