Justice achieved – but wheres the information?!
08.06.06 | Georgy Kobzar
On 5 May 2005 the Chukhuyivsky City Court of the Kharkiv Region, in considering the civil suit filed by journalist of the KHPG bulletin “Prava Ludyny”, Yury Chumak, found the inaction of the President of Ukraine unlawful.
On 5 May last year, the Kharkiv Human Rights Group journalist sent a letter to President Yushchenko formally asking to be provided with information about Presidential Decrees bearing the stamps restricting access “““Not to be printed” and “Not to be published”.
According to the Law of Ukraine “On information”, an answer to a formal request for information needed to be provided within a month. Having not received any response, on 11 July 2005, Yury Chumak filed a suit with the Pechersky District Court in Kyiv against the inaction of the President of Ukraine demonstrated by the lack of response to his formal request for information.
The court hearing was postponed four times, and then on 21 December the Pechersky Court decided to refer the case to the Chukhuyivsky City Court of the Kharkiv Region according to the place of residence of the claimant.
On 5 May the panel of judges of the Chukhuyivsky City Court was ready to begin its consideration, however the Respondents representative did not appear at the hearing, and the case was postponed until 30 May. On 30 May the Presidents representative in court presented the respondents objections to the suit brought by Yury Chumak, and also said that she had approached the Presidents Secretariat with a request for official information on the fate of the journalists formal request for information from the President. In connection with this, the court adjourned until 6 June.
And finally, on 5 June 2006, exactly 13 months after the original request for information was lodged, the Chukhuyivsky City Court handed down its ruling on the case.
Lets follow the course of the court ruling:
The Presidents representative in court submitted to the court a copy of the response from the
Presidents Secretariat to the formal request for information lodged by Y.V. Chumak, dated … 01.01.2006. On the instruction of the President of Ukraine, the Secretariat notify of a number of particular measures which the President, the Ministry of Justice and the Cabinet of Ministers of Ukraine have taken to improve the situation in the area of information. Although the Secretariat apologizes for the delay in providing a response “due to technical reasons”, Y.V. is effectively still refused the actual information requested regarding Presidential Decrees with stamps restricting access.
“In order to see, in case of need, the acts issued by the Head of the State, other normative legal acts bearing stamps restricting access, in accordance with the Law of Ukraine “On state secrets”, a relevant permit is required”.
Commentary, in my opinion, in the given case would be superfluous.
After reading the letter from the Secretariat, Yury Chumak presented his comments regarding the suit.
To the Chukhuyivsky City Court of the Kharkiv Region
In the Case brought by Y.V. Chumak
against the Respondent – the President of Ukraine
for the inaction of the President of Ukraine
The Presidents representative in court – Chief Specialist of the Kharkiv Region Department of the Ministry of Justice, Ms Savina, has presented the court with objections to my suit. These state that:
«The letter of Y.V. Chumak to the President of Ukraine does not comply with the definition of the “formal request for information in writing” contained in the Law of Ukraine “On Information”.
In accordance with Article 32 § 3 of the Law of Ukraine “On Information”, a “formal request for information in writing or verbally” in this Law is understood to be an appeal asking for information to be provided in written form or verbally as to the activities of bodies of legislative, executive or judicial power of Ukraine, their state officials on specific issues.
According to Article 6 of the Constitution of Ukraine, state power in Ukraine is exercised on the principles of its division into legislative, executive and judicial power.
According to Article 102 of the Constitution of Ukraine, the President of Ukraine is the Head of State and acts in its name. The President of Ukraine is the guarantor of state sovereignty and territorial indivisibility of Ukraine, the observance of the Constitution of Ukraine and human and citizens rights and freedoms.
From the above it is evident that the President of Ukraine has a special legal status, established by the
Constitution of Ukraine and is not a body of legislative, executive or judicial power».
Effectively, the Presidents representative in court is arguing that, following from the fact that the President is not part of legislative, executive or judicial power, then there is no point in sending formal requests for information to him since he has no duty to respond to them. Such supposedly is the legal collision. However this is a manifestly wrong interpretation of the norms of Ukrainian legislation since, according to Article 18 of the same Law of Ukraine “On Information” types of information include information about the activities of state bodies of power and bodies of local and regional self-government. Then Article 21 directly states that “information of state bodies of power and bodies of local and regional self-government shall be understood as official documented information developed in the course of current activity of legislative, executive, judicial power, and bodies of local and regional self-government. The main sources of this information shall be: legislative acts of Ukraine; other acts enacted by the Verkhovna Rada and its bodies; ACTS OF THE PRESIDENT OF UKRAINE [my highlighting – Y. Chumak); acts of subordinate legislation; non-normative acts of state bodies; acts of bodies of local and regional self-government”. The Law thus contains direct reference to the fact that one of the kinds of information of state bodies of power and bodies of local and regional self-government are acts of the President of Ukraine. I would mention again that it was specifically written information about acts of the President of Ukraine (his decrees) that I asked for in my formal request for information.
Furthermore, the argument of the Presidents representative in court that, given the fact that the Constitution of Ukraine does not place the President of Ukraine in any of the branches of state power, the requirements imposed on bodies of legislative, executive and judicial power do not apply to him are legally flawed, and may lead to other erroneous conclusions. If one follows Ms Savinas logic, then the President of Ukraine is also not bound by Article 6 § 2 of the Constitution of Ukraine which states: “Bodies of legislative, executive and judicial power exercise their authority within the limits established by this Constitution and in accordance with the laws of Ukraine”.
Should we understand then that the President is altogether outside the legal framework in Ukraine? Clearly not.
On the contrary, as Guarantor of the observance of the Constitution of Ukraine, human and civil rights and freedoms, the President is a state official in whom is vested the duty to uphold human and civil rights and freedoms, to be a figure providing an example of law-respecting behaviour.
The Presidents representative in court, among her objections to my claim against the President of Ukraine, turns to the text of the Presidential Decree “On the procedure for official publication of normative legal acts and their gaining of legal force”, No. 503/97 from 10.06.1997 which contains a norm stating that «Acts of the Verkhovna Rada of Ukraine, of the President of Ukraine and of the Cabinet of Ministers of Ukraine which do not have general significance or normative nature may not be published at the decision of the particular body. These acts and acts with stamps limiting access are officially made public by sending them to the relevant State bodies or by the bodies of local self-government and their notification of businesses, institutions, organizations and individuals on whom the act has legal force”
However, firstly, the Presidential Decree which is quoted above is not in any way a legislative act, and, in accordance with Article 34 of the Constitution of Ukraine the right to freely collect, store, use and disseminate information may be restricted only by LAW [my highlighting – Y. Chumak). Furthermore, I did not demand that the President published the texts of his Decrees, but asked only for the names and issue details about the Presidential Decrees bearing stamps restricting access.
In her “Objections”, the Presidents representative in court quite fairly notes that in accordance with the Law of Ukraine “On information” “confidential information shall be understood as information in the possession of, used by or at the disposal of particular individuals or legal entities, to be disclosed at their discretion, subject to conditions which they impose. The procedure for registering, storing and using documents and other forms of information containing the above-mentioned information shall be defined by the Cabinet of Ministers of Ukraine” (paragraphs 1 and 3 of the said Law).
However, in this, whether inadvertently or deliberately, Ms Savin somehow “forgot” to cite paragraph 2 of the Article of the Law which she quotes, with this paragraph clearly stating: «With regard to information which is owned by the state and used by state bodies and bodies of local self-government, businesses, institutions and organization regardless of their form of property, in order to protect this information, it may IN ACCORDANCE WITH THE LAW [my highlighting – Y. Chumak).be classified as on restricted access and confidential”. Yet again I must repeat that there is no law whatsoever in Ukraine which imposes restrictions on access to information through the use of the stamps “Not to be printed” and “Not to be published”!
“The issuing by the President of Ukraine of acts with stamps restricting access is carried out in the interests of national security, public order, to protect the health of the population, to defend human rights and in other cases foreseen in the Constitution and Laws of Ukraine”, the Presidents representative in court argues. The sole law imposing stamps restricting access to information is the Law of Ukraine “On state secrets” which establishes in legislation the classification stamps “of particular importance”, “top secret” and “secret”
There is not a word about the stamps “Not to be printed” and “Not to be published”.
In his letter ¹ Ñ-32705-22 from 21.01.2006, addressed to O.Y. Severyn, member of KHPG and Legal Advisor to the “Maidan” Alliance), the Deputy Minister of Justice, M. M. Shupenya acknowledges:
“ The Ministry of Justice of Ukraine has carried out an analysis of acts issued by the Cabinet of Ministers of Ukraine over the years 1991 – 2005 with the stamps restricting access: “Not to be printed” and “Not to be published” which are not allowed for by Ukrainian legislation.
As a result of their analysis, the Ministry of Justice of Ukraine has approached the Cabinet of Ministers suggesting that they give instructions with regard to the inadmissibility of future use of the above-mentioned stamps limiting access and to the publication of acts previously issued by the Cabinet of Ministers bearing these stamps”.
In the same letter the Ministry of Justice of Ukraine confirms that “Classifying normative legal acts with stamps restricting access, which is not envisaged by legislation, is a violation of the rights of citizens to access to legal information”.
The Court should also note that, in accordance with Article 29 of the Law of Ukraine “On information”, “.
“The right of priority in receiving information shall be vested in citizens requiring such information in the line of professional duty”. I am a journalist, the Deputy Editor of the print issue of the Kharkiv Human Rights Groups bulletin “Prava Ludyny”, and am thus a person requiring this information in the line of professional duty.
All of the above-mentioned objectives of the Presidents representative in court are, in my view, unfounded. The failure by the President of Ukraine to provide an answer to my formal request for information is undoubtedly unlawful inaction. I would therefore ask the court to fully satisfy my suit against the President of Ukraine
05.06.2006. Yury Volodymyrovych Chumak
Yury Chumak further stated, during the court proceedings, that Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which Ukraine has ratified and which is a part of domestic legislation in our country, stresses that restrictions on information may only be imposed where “necessary in a democratic society”, The information requested from the President did not fall into the category of that which is subject to restrictions as are prescribed by law and which are necessary in a democratic society. The President therefore was obliged to provide an answer within the month stipulated by the Law of Ukraine “On information”.
Since no evidence of the legality of the Presidents inaction (or of an answer having been forthcoming to the request for information), had been given by the Presidents representative in court, Yury Chumak asked the Court to satisfy his claim in full, that is:
1. To find the inaction of the President of Ukraine seen in not providing an answer to Y.V. Chumaks formal request for information illegal;
2. To bind the President of Ukraine to provide a thorough response to Y.V. Chumaks formal request for information, providing the actual information;
3. To order the President of Ukraine to pay the Claimant, Y.V. Chumak, the amount paid in state duty, that being 3 UH 40 kopecks.
Yury Chumak added: “If the President of Ukraine loses this case in court today, the process of democratic transformation in Ukraine, begun by the President himself, can only benefit “.
After the Court had heard the arguments of the parties, it retired to reach its verdict.
When the Judges returned, they read the following Resolution which we cite here almost in full.
Case ¹ 2-à-101/2006
IN THE NAME OF UKRAINE
On 5 June 2006 the Chukhuyivsky City Court of the Kharkiv Region
sitting as a panel of judges consisting of:
The Chairperson Humenny, Z. I.
and judges: Katynova, V.V. and Samoilova, V.V.
and with the Registrar: Sarmatytska, O.O.
Having reviewed in an open court hearing in a courtroom in the city of Chukhuyiv the case based on the suit of Yury Volodymyrovych Chumak v. the President of Ukraine for the inaction of the President of Ukraine which violates the rights of citizens,
Governed by Articles 19, 34, 40, 55 §. 2 of the Constitution of Ukraine, Articles 29, 32, 33, 45 of the Law of Ukraine “On information”, Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which was ratified by the Verkhovna Rada of Ukraine on 17.07.2006 and by Articles 5-15, 94, 158-163, 167 of the Code of Administrative Justice of Ukraine, the court
To satisfy the claim in part.
To find the inaction of the President of Ukraine in not providing a response to the formal request for information made by Yury Volodymyrovych Chumak on 05.05.2005 unlawful.
To pay court expenses of 3 (three) UH 40 kopecks from the State Budget of Ukraine.
To not satisfy the rest of the demand.
This Resolution may be appealed according to established procedure in the Appeal Court of the Kharkiv Region.
Given that the court did find the inaction of the President of Ukraine unlawful must be considered a positive precedent.
Nonetheless, the main thing that was requested, that is the actual information about “secret” Presidential Decrees, has still not been received, and the court did not bind the President to provide it.
So, it would seem, the battle continues.