Secret State

Democracies need openness to flourish, while autocracies thrive on secrecy. By that standard, Ukraine – nearly 20 years into national independence – is stuck in the Soviet past, with leaders denying citizens essential information.

In the Soviet Union, everything belonged to the state, including information. It was tightly controlled under the watchful eye of one party, and publicly delivered through state-run media outlets.

It was a true monopoly of power.

The unraveling of that empire was hastened by its last leader, Mikhail Gorbachev, whose policies of glasnost and perestroika eventually revealed to society many of the sinister crimes the Soviet state had committed against its citizens for 70 years.

Nearly 20 years since Ukraine’s independence, the nation’s rulers have not advanced far from that authoritarian heritage.

A pervasive culture of withholding government information from citizens persists.

If democracy flourishes in openness, then Ukraine’s form of government is closer to autocracy – in which officials pull curtains of secrecy around their actions and decisions that affect the lives and fortunes of 46 million people.

Such a method of governing only fuels Ukraine’s endemic corruption as officials abuse their powers in secrecy and with impunity.

The public, meanwhile, is left in the dark and denied their democratic powers to provide meaningful checks on the powers of the people they elect to govern.

As a result, few know how national and local governments spend money — efficiently and for the public good, or ineffectively and for private gain.

On Nov. 1, parliament chose to let government continue functioning under the cloak of darkness when lawmakers postponed a vote for a public access to information bill on the eve of the scheduled vote.

The bill, championed by Bloc of Yulia Tymoshenko parliamentarian Andriy Shevchenko, was supposed to ensure public and expedient access to government and municipal actions and budgets as well as open up other previously closed information. It had the endorsement of the Parliamentary Assembly of Council of Europe.

“I view this law as part of a package of laws I’ve drafted that make civil society as strong as possible in the current political situation; the more we know, the more we have access to information, the better Ukraine will function as a state,” Shevchenko said. “It’s really not about legislation, it’s about the culture of bureaucracy, and this law will make politicians more open and transparent.”

President Viktor Yanukovych promised in July to ensure the bill gets passed.

Hanna Herman, deputy chief of the presidential administration, also pledged on Oct. 13 to Dunja Mijatovic, the Organization for Security and Cooperation in Europe’s representative on freedom of media and speech: “The president asked me to say that we’ll do everything possible so that the public access to information law will be adopted as soon as possible in parliament…”

The nixed vote was seen by experts as another democratic milestone missed by the Yanukovych administration.

Instead lawmakers from his allied Party of Regions party registered a different law, which it will consider on Nov. 5.

The Party of Regions have twice stalled the “right to know” bill’s adoption in July and October.

Ukraine has already postponed to Jan. 1 the date when a package of European-endorsed anti-corruption laws was supposed to enter force.

The anti-corruption bill is part of Ukraine’s obligation before the Council of Europe’s Group of States against Corruption (GRECO), which it joined in 2006.

Earlier in October, Drago Kos, the president of GRECO, said that his organization sees no improvement in Ukraine’s efforts to fight corruption.

“Any real fight against corruption is not noticeable. Some institutions are created and that’s it. It looks as though something is being done, but in fact nothing is happening,” he said.

More than half the countries of the world have not yet adopted so called “right to information” laws and many that have done so have failed to implement them adequately, according to Article 19, a British freedom of expression and information organization.

This means the Soviet practice of arbitrarily classifying public information as “secret,” “for internal use only” and “not for publication” will remain in place.

For this 90-year habit to change, “political will is needed as well as the understanding that the public owns information,” said Yevhen Zakharov of the Ukrainian Helsinki Human Rights Association.

According to Zakharov, there is no way of knowing how many existing presidential and Cabinet of Ministers’ decrees are classified.

For example, Yanukovych issued three decrees in August whose contents are unknown and not listed on the preisential website.

“The information requested regarding a list of all acts bearing the stamp ‘for internal use only,’ which contain confidential information that is state property, is itself confidential,” was the Kafkaesque response of Olena Lukash, first deputy head of the presidential administration, in a letter dated July 27 to freedom-of-information activist Oleh Severin.

This broad culture of secrecy is one reason why the Kyiv Post still hasn’t received a response from Deputy Prime Minister Sergiy Tigipko to a July 27 faxed inquiry regarding allegations that he tried rigging an exit poll in 2004 for $1 million.

According to legislation, government officials must respond within 30 days of receiving inquiries.

The Kyiv Post has also twice sent information inquiries to the State Affairs Department and to Yanukovych asking how much was spent on his lavish 60th birthday party on July 9, but twice received formal responses that money from the state budget was not spent on it, but provided no further details.

Online news source Ukrainska Pravda is currently suing Yanukovych in court for not revealing which joint-stock company he founded.

And it also remains a mystery why the Security Service of Ukraine, known as the SBU, recently classified as “top secret” its criminal case against Ruslan Zabily, a historian and former director of a Lviv historical museum. Zabily was detained by six state security operatives on Sept. 8 on “suspicion of disseminating state secrets and collecting information in an unlawful manner”.

According to Zabily, his research has focused on declassified materials dating to the Soviet-era and centered on the strategy and tactics of the Ukrainian Insurgent Army, known by the UPA acronym, the guerrilla fighters who battled Soviets to achieve Ukrainian national independence during World War II.

Human rights activists said classifying Zabily’s case top secret restricts his right to a defense and is being used to restrict public scrutiny over the case.

“This is absurd. We’re talking about declassified, Soviet documents, which can’t be secrets of the Ukrainian state,” Helsinki’s Zakharov said.

Yevhen Zakharov

“Now that the case is top secret, Zabily would need a lawyer with access to state secrets, which makes it a violation of Article 6 of the European Convention on Human Rights,” he said referring to the basic civil rights people have when facing criminal charges.

According to Bloc of Yulia Tymoshenko lawmaker Shevchenko, the SBU would have a hard time classifying Zabily’s case “secret,” since the bill has a three-step justification process in place through which a government body must go through in order to classify something.

A study conducted by the Kharkiv Human Rights Protection Group revealed that only 55 percent of 1,528 inquiries submitted by non-government organizations to government bodies in 2005-2007 were answered, of which 40 percent were answered in full, while 169 responded after the legally prescribed 30-day period.

The same study showed that 1,274 responses contained parts that said information cannot be supplied due to classification.

Even lawmakers get rejected on information requests.

Hennady Moskal, an Our Ukraine parliamentarian within the opposition faction, told the Kyiv Post that “90 percent of my inquiries as an MP aren’t satisfied.”

Apparently, the authorities have something to hide, he concluded.

Another study conducted by the Ukrainian Independent Center for Political Research, a reputable Kyiv think tank, in May 2007 revealed that 58 percent of the websites of central executive government bodies had the legally stipulated information listed according to a 2002 law on the activities of executive government bodies.

The vast majority of Ukrainian municipalities are not open to public scrutiny, despite the integral public interest roles they carry out.

According to the East-Ukrainian Center for Civil Initiatives, only three out of 200 cities fully complied with requests from non-profit organizations to access city plans, including both text and cartographic information.

“A significant quantity completely failed to respond, and we counted over 15 different ways they directly or indirectly refuse public access to the plans, most of which have legal foundation in law,” said East-Ukrainian Center for Civil Initiatives head Volodymyr Shcherbachenko.

The vast majority of municipalities said such plans bore the stamp “for internal use only,” according to Shcherbachenko.

Some cities such as Kyiv, the nation’s capital, even classify their entire general municipal development plans as “secret.” While a handful of cities – Donetsk, Lviv and Odesa – claim to provide access to general plans on their websites, in fact these websites display only rudimentary cartographic information.

The culture of secrecy is perpetuated from the top.

Political observers have noted that Yanukovych has only given one open press conference to journalists in the eight months he’s been in office.

According to an Oct. 29 issue of Korrespondent weekly magazine, only loyal journalists who toe the presidential line are allowed to accompany the president and ask him questions during in-country and foreign trips.

And often, requests for basic public information just linger and die.

For instance, Ukraine’s treasury department still hasn’t responded to journalists’ requests asking where the $4.8 billion from the sale of the previously state-owned Kryvorizhstal steel plant, the nation’s largest, had been transferred.

“This trend of not disclosing what essentially is public information and owned by the public is worsening in the current political situation because we have a top-down form of governance and the lower ranking officials see what those at the top are doing and copy their actions,” Shevchenko, the public information-crusading lawmaker, said.

An information law dating to 1992 regulates public access. Another law on state secrets dating to 1994 regulates what can and cannot be classified. The latter emulates the Soviet practice of having “experts” based in every government agency who determine what information is public and what is not.

“These so-called experts have a very wide spectrum through which they could classify information and most often this depends on the will of the person classifying information,” Zakharov said of the arbitrary way in which public information gets restricted.

“The concept of public ownership isn’t developed in Ukraine. Many Soviet habits persist today.”

The human rights activist noted that every oblast administration has its own list of items of what can be classified and limited to public disclosure yet they all have the same amount of authority according to law.

The law on information currently in place is outdated compared to international best practice, making a mockery of the country’s international obligations including to the Parliamentary Assembly of the Council of Europe.

“There’s been a huge leap forward internationally and Ukraine has so far missed the boat,” said Helen Darbishire, head of Access-Info, a leading European non-governmental organization pushing for freedom of information.

According to Darbishire, the main elements of the last decade’s revolution in access to information encompass the clear presumption that it’s the public that owns information, and that all public bodies, branches of power and private bodies performing public functions are covered.

Meanwhile, Ukraine lags decades behind with Soviet-level access to information that should be public.

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