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Decisions of Ukrainian courts

Court decision regarding the unlawful actions of the head of the Chernihiv Department

   
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Judgment of the Budyonny District Court of Donetsk of 14 September 2007 regarding the administrative claim of Oleksandr Bukalov, head of the human rights organisation “Donetsk Memorial”, concerning the unlawful refusal to provide information by V. I. Lopatin, Head of the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region. Provided are the texts of the court judgment, the administrative claim, the statement of defence by the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region against the administrative claim of O. Bukalov, and his observations regarding these objections.

Judgment of the Budyonny District Court of Donetsk of 14 September 2007 regarding the administrative claim of Oleksandr Bukalov, head of the human rights organisation “Donetsk Memorial”, concerning the unlawful refusal to provide information by V. I. Lopatin, Head of the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region. Provided are the texts
of the court judgment,
of the administrative claim,
of the statement of defence by the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region against the administrative claim of O. Bukalov, and his
observations regarding these objections.

Case No. 2-a-68/2007

JUDGMENT IN THE NAME OF UKRAINE
14 September 2007 Donetsk
The Budyonny District Court of Donetsk, composed of:
Presiding judge: O. O. Tymchenko,
Court secretary: O. O. Avramenko
With the participation of:
The Plaintiff: O. P. Bukalov,
having considered in open court the administrative case regarding the claim of Oleksandr Pavlovych Bukalov against the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region concerning the unlawful refusal to provide information by the Head of the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region, -
HAS DETERMINED
On 12 December 2006, the Plaintiff appealed to the Budyonny District Court of Donetsk with an administrative claim regarding the unlawful actions of the Head of the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region, stating that he, as the head of the council of the “Donetsk Memorial” organisation, conducts research in the sphere of reforming the penitentiary system. In connection with this, he appealed with a letter, No. 86 of 18 July 2006, containing an information request to the Head of the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region, V. I. Lopatin, with a request to provide information regarding the activities of penal institutions in the Chernihiv Region. In the received response, No. 1-1599 of 24 July 2006, signed by the Head of the Department, it was stated that he could obtain the requested information from the Department for the Execution of Sentences in Kyiv. In effect, the aforementioned letter constituted a refusal to provide information. After that, he appealed to the Defendant once more with a letter, No. 95 of 29 July 2006, in which he pointed out that since their department is the primary source for obtaining the information, he is specifically addressing them to obtain it. To date, he has not received a response to his repeated request. He considers the refusal to have the hallmarks of an offence provided for by paragraph “g” of Article 5 of the Law of Ukraine “On Combating Corruption”, and that his constitutional right has thus been violated. He requests the court to recognise the failure of the Head of the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region, V. I. Lopatin, to provide the requested information as unlawful, and to oblige the Head of the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region, V. I. Lopatin, to provide the requested information regarding the activities of the penal institutions of the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region in accordance with the information request of 18 July 2006.
In the court hearing, the Plaintiff supported his claims in full, providing explanations in justification thereof similar to those indicated in the administrative claim.
The Defendant did not appear at the court hearing, although duly notified, as evidenced by the receipt of the court summons; however, the Defendant’s representative authorised by power of attorney, L. P. Zamura, questioned in court in accordance with the mandate of the Budyonny District Court of Donetsk, explained that they do not recognise the administrative claim and substantiate all arguments in the written explanations attached to the claim. The Defendant personally does not wish to participate in the case, except through a representative. In accordance with the written objections to the claim, the Defendant’s representative refers to the fact that a concise response was provided to the Plaintiff within the time limits established by law, under ref. No. 86 of 18 July 2006, and the Plaintiff was invited to apply for the information to the central body of the State Department of Ukraine. After that, upon the Plaintiff’s second appeal, he was invited to obtain the information on the official website of the State Department. Furthermore, the Defendant’s representative considers that the time limits provided in the response to the Plaintiff were not violated, and that in the request, the Plaintiff asked for information pertaining to confidential data. Also, no agreement for the receipt of information was concluded between the Plaintiff and the Defendant, as provided for by Article 29 of the Law of Ukraine “On Information”.
Since the Plaintiff and his representative were duly notified of the time and place of the case consideration and provided written objections, the court considers it possible to hear the case in the absence of the Defendant and his representative, as there is no need for their personal explanations, based on the materials of the case.
The court, having heard the Plaintiff and examined the case materials within the scope of the stated claims, considers the claim to be well-founded and subject to satisfaction for the following reasons.
In accordance with Article 40 of the Constitution of Ukraine, everyone has the right to send individual or collective written appeals or to address personally to state authorities, local self-government bodies, and officials of these bodies, who are obliged to consider the appeals and provide a reasoned response within the time limit established by Law.
As follows from the requirements of parts 1 and 2 of Article 55 of the Constitution of Ukraine, the rights and freedoms of man and citizen are protected by the court. Everyone is guaranteed the right to challenge in court the decisions, actions, or inaction of local self-government bodies, officials, and officers.
According to request No. 86 of 18 July 2006, the Plaintiff did indeed address the Head of the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region with a request to provide the following information: the number of persons held in places of imprisonment in the Chernihiv Region as of 01.01.2006 and 01.07.2006, including separately: convicts, those in pre-trial detention centres (SIZO), those sentenced to life imprisonment, HIV-infected persons, and tuberculosis patients; the number of persons who arrived at the penal institutions of the region during
2005 and separately in the first half of 2006; the number of persons released from places of imprisonment
in 2005 and separately in the first half of 2006: in total, including those on parole; the number of persons registered with the criminal-executive inspection of the region
as of 01.01.2006 and separately as of 01.07.2006; the number of persons who died while
in the institutions of imprisonment of the Chernihiv Region in 2006 and separately in the
first half of 2006, including cases of suicide; the number of complaints from convicts
sent to the Department of the State Department during 2005 and separately in the first half of
2006, in total, as well as the number of complaints satisfied or recognised as unfounded; the total area allocated for the housing of convicts in the Department of the
State Department of the region, as well as the total area in the SIZO of the region allocated for housing
detained persons as of 01.01.2006.
According to the response of the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region of 24.07.2006, No. 1-1599, O. P. Bukalov was informed that he could obtain the information in accordance with his request by applying to the State Department of Ukraine for the Execution of Sentences at the address: Kyiv, Melnykova Street, 81.
As follows from letter No. 95 of 29 July 2006, the Plaintiff again appealed to the Defendant with a request to provide him with an answer to the previously sent request, referring to the requirements of the Law of Ukraine “On Information” and the Constitution of Ukraine.
After that, as follows from the letter of the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region of 07.09.2006, No. 11-1921, the Plaintiff was informed that he could obtain all the necessary information on the information website of the DDUGPVP (State Department of Ukraine for the Execution of Sentences).
Having examined the above-mentioned evidence, the court considers that the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region effectively refused the Plaintiff the provision of the requested information.
In accordance with the requirements of Article 32 of the Law of Ukraine “On Information”, an information request (hereinafter - request) regarding access to official documents under this Law is understood as an appeal with a demand to provide the opportunity to familiarise oneself with official documents. A request can be individual or collective. It is submitted in writing.
A citizen has the right to address state bodies and demand the provision of any official document, regardless of whether this document concerns him personally or not, except for cases of restricted access provided for by this Law.
Under a request for the provision of written or oral information in this Law, it is understood as an appeal with a demand to provide written or oral information about the activities of the legislative, executive, and judicial authorities of Ukraine, and their officials, regarding specific issues.
Citizens of Ukraine, state bodies, organisations, and associations of citizens (hereinafter - requesters) submit a request to the appropriate legislative, executive, or judicial authority, or its officials.
The request must specify the surname, first name, and patronymic of the requester, the document, written or oral information of interest, and the address to which he wishes to receive a reply.
Legislative, executive, and judicial authorities of Ukraine and their officials are obliged to provide information concerning their activities in writing, orally, by telephone, or using public speeches by their officials.
As follows from request No. 86 of 18 July 2006, the Plaintiff complied with all the requirements of the current legislation when sending the request, and according to the response of the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region, the Defendant violated the requirements of part 6 of Article 32 of the Law of Ukraine “On Information”.
The court also cannot agree with the Defendant's arguments regarding the fact that the Plaintiff sent them not an information request, but a request concerning confidential information.
Since, in accordance with the “List of confidential information which is state property, in the bodies and institutions for the execution of sentences, pre-trial detention centres and educational institutions of the State Criminal-Executive Service of Ukraine”, and which is granted the restricted access stamp “For Official Use”, approved by the Order of the State Department of Ukraine for the Execution of Sentences of 19.12.2006 No. 248, the information requested by the Plaintiff is not included.
Furthermore, the court cannot agree with the arguments of the Defendant and his representative regarding the fact that under Article 34 of the Constitution of Ukraine, the right to collect information can be limited, because Article 34 of the Constitution of Ukraine states that everyone is guaranteed the right to freedom of thought and speech, and to the free expression of their views and beliefs. Everyone has the right to freely collect, store, use, and disseminate information orally, in writing, or in any other way of their choosing. The exercise of these rights may be limited by law in the interests of national security, territorial integrity, or public order with the aim of preventing unrest or crimes, for the protection of public health, for the protection of the reputation or rights of other people, for the prevention of the disclosure of information received in confidence, or for the maintenance of the authority and impartiality of justice. By refusing the Plaintiff the provision of information, the Defendant did not provide reasoned arguments as to why in this case the information could be limited and which norm of the Law he is guided by.
The court also cannot agree with the Defendant's arguments regarding the fact that information under an information request is provided only under contractual terms, since, in accordance with the requirements of part 2 of Article 29 of the Law of Ukraine “On Information”, the procedure and conditions for providing information to citizens, state bodies, legal entities, and representatives of the public upon requests are established by this Law or by contracts (agreements), if the provision of information is carried out on a contractual basis; in this case, the Plaintiff was guided by the norms of the Law.
Based on the requirements of the Law, the provision of information under a contract is applied when the parties have agreed to conclude a Contract, but the Law does not provide for the mandatory conclusion of a contract for obtaining information; therefore, the court considers the Defendant's arguments to be unfounded.
Based on the foregoing, the court has come to the conclusion that the actions of the Head of the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region regarding the failure to provide the Plaintiff with a response to the request of 18.07.2006 were indeed unlawful, and considers it necessary to oblige him to provide a response to the Plaintiff.
On the basis of the stated and guided by articles 11, 12, 158-163, 167 of the Code of Administrative Legal Proceedings of Ukraine, the court -

HAS JUDGED:

The claims of Oleksandr Pavlovych Bukalov are to be satisfied in full.
To recognise the failure of the Head of the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region, V. I. Lopatin, to provide the information requested by O. P. Bukalov as unlawful.
To oblige the Head of the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region, V. I. Lopatin, to provide the requested information regarding the activities of the penal institutions of the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region in accordance with the information request of 18.07.2006 under No. 86.
An application for appeal and an appeal against the judgment of the court of first instance are submitted to the administrative court of the appellate instance through the court of first instance that delivered the contested court judgment. A copy of the appeal is simultaneously sent by the person filing it to the appellate instance.
An application for appeal against the judgment of the court of first instance is submitted within ten days from the day of its pronouncement.
An appeal against the judgment of the court is submitted within twenty days after the submission of the application for appeal.
An appeal may be filed without the prior submission of an application for appeal if the appeal is filed within the time limit established for the submission of an application for appeal.

Judge: [signature]
The judgment entered into force in October 2007
ADMINISTRATIVE CLAIM
To the Budyonny District Court of Donetsk
of Oleksandr Pavlovych Bukalov
regarding the unlawful refusal to provide
information by the Head of the Department
of the State Department of Ukraine for the
Execution of Sentences in the Chernihiv Region
Mr. LOPATIN V. I.

I, as a citizen and as the head of the council of the “Donetsk Memorial” organisation, appealed by letter No. 86 of 18 July 2006 with an information request to the Head of the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region with a request to provide information regarding the activities of the penal institutions of the Chernihiv Region. The information request was sent by letter (copy attached) in accordance with Article 40 of the Constitution of Ukraine and with Articles 29, 32, 33 of the Law of Ukraine “On Information”.
In the received response No. 1-1599 of 24 July 2006, signed by the Head of the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region, Mr. LOPATIN V. I., it is reported that I can obtain the requested information from the Department for the Execution of Sentences in Kyiv. In fact, by this letter, Mr. LOPATIN V. I. refuses the requested information, as he does not provide it.
By letter No. 95 of 29 July 2006, I appealed to the Head of the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region, Mr. LOPATIN V. I., in which it was noted that “since the primary source of the information requested by us is your department itself, we are therefore addressing this information request specifically to you. If you need the consent of the Department to provide it, please, we ask you to properly coordinate the provision of this information with the Department and nevertheless provide us with this information”.
I also drew attention to the fact that “by your refusal to provide us with information that is not classified, you are creating the prerequisites for our appeal to the court regarding a violation of legislation, in particular, the Law of Ukraine “On Information””.
The repeated request was received by the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region on 2.08.2006, which is confirmed by the Notification of delivery of the postal item.
I have not received a response to the repeated request within four months.
Thus, my constitutional right to receive information, provided for by Article 40 of the Constitution of Ukraine, has been violated.
Taking the above into account, on the basis of Articles 34, 55 of the Constitution of Ukraine, Article 48 of the Law of Ukraine “On Information”, Articles 6, 104, 162 paragraph 2 of the Code of Administrative Legal Proceedings of Ukraine, and Article 302 of the Civil Code of Ukraine
I REQUEST
1. To recognise the failure of the Head of the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region, Mr. LOPATIN V. I., to provide me with the requested information as unlawful.
2. To oblige the Head of the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region, Mr. LOPATIN V. I., to provide the requested information regarding the activities of the penal institutions of the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region in accordance with the information request of 18.07.2006.

Appendices
1. Copy of information request No. 86 of 18 July 2006 – 2 copies.
2. Copy of reply letter No. 1-1599 of 24 July 2006 – 2 copies.
3. Copy of repeated information request No. 95 of 29 July 2006 – 2 copies.
4. Copy of Notification of delivery dated 02 August 2006 – 2 copies.
5. Copy of the COMPLAINT.
6. Receipt for payment of the court fee.
27 November 2006 Oleksandr BUKALOV


To the Budyonny District Court of Donetsk
14.05.2007 No. 11-1082
OBJECTIONS TO THE ADMINISTRATIVE CLAIM
Lopatin Viktor Ivanovych, as Head of the Department of the State Department of Ukraine for the Execution of Sentences (DDUVP) in the Chernihiv Region (hereinafter - Defendant), is an official of a full-power structure, in his activities is guided by the Constitution, laws of Ukraine, acts of the President and the Cabinet of Ministers of Ukraine, regulatory legal acts of the State Department of Ukraine, and the regulations on the Department. Within the limits of his powers, he ensures the implementation of state policy regarding the protection of state secrets and exercises control over their preservation in the department apparatus and subordinate institutions. The Department, represented by its Head, in the process of fulfilling the tasks assigned to it, interacts with local executive bodies, local self-government bodies, and public organisations.
The Defendant, implementing a unified state policy in the sphere of the execution of criminal sentences, cooperates closely with various charitable organisations within the limits of his powers on the basis of concluded agreements.
Relying on Articles 34, 40 of the Constitution of Ukraine and on Articles 29, 32, 33 of the Law of Ukraine “On Information”, the Plaintiff appealed to the Defendant with letter ref. No. 86 of 18 July 2006 for the receipt of information which is confidential. A concise response was provided within the time limits established by legislation, ref. No. 1-1599 of 24.07.2006, in which it was noted that the Plaintiff, regarding the information set forth in the letter of 18.07.2006, could apply directly to the central body of the State Department of Ukraine where a department for interaction with mass media and public relations has been created; this does not contradict the requirements of the Law “On Information”, specifically paragraph 2 of Article 10 “guarantees of the right to information”. Where it is stated that the right to information is ensured by the creation in state bodies of special information services or systems that provide access to information in the established order. Therefore, to the second appeal which arrived at the Defendant's address, ref. No. 95 of 29.07.2006, a response was provided in accordance with the requirements of the above-mentioned law, ref. No. 11-1921 of 07.09.2006, informing the Defendant that all available information concerning the activities of the criminal-executive system is posted on the website of the State Department E-mail: www.kkvs.gov.ua. In the statement of claim, the Plaintiff omits the fact of his receipt of this response (copy attached).
The information which is on the website of the State Department is statistical and, in accordance with the requirements of Article 19, is official documented state information that provides a quantitative description of the mass phenomena and processes taking place in the criminal-executive system. The State Department, by posting information on the website, ensures open access for citizens, scientific institutions, and interested organisations to unpublished statistical data which do not fall under the action of the restrictions established by the Law of Ukraine “On Information”, as well as the Law of Ukraine “On State Statistics”.
In his letters and in the statement of claim, the Plaintiff indicates that the Defendant violated Articles 34, 40 of the Constitution, but this is not the case, because in part 3 of Article 34 of the Constitution it is indicated that the right to collect and disseminate information may be limited by legislation, and Article 40 relates more to the Law of Ukraine “On Citizens' Appeals”, according to this law and the Law of Ukraine “On Information”, the time limits for providing responses by the Defendant were not violated.
The Plaintiff also refers to the fact that the Defendant violated articles of the Law “On Information”, Article 29, which provides for access to information, but in part 2 of this article it is also indicated that the procedure and conditions for providing information to citizens, state bodies, legal entities, and representatives of the public upon requests are established by this law or by contract; no contract for the receipt and dissemination of information within the scope of his competence was concluded between the Defendant and the Plaintiff. Also Article 32, but in part 1 of this law it is stated that an information request under this Law is understood as an appeal with a demand to provide the opportunity to familiarise oneself with official documents, but the information request was about the receipt of confidential information.
Article 30 of the Law gives the concept of what confidential information is - it is information which is in the possession, use, or control of individual natural or legal persons and is disseminated at their discretion in accordance with the conditions provided by them. Legal entities that possess information of a professional, business nature, which is the subject of their professional, business interest and does not violate the secrecy provided by law, independently determine the access regime to it, including its belonging to the category of confidentiality, and establish methods of protection for it. Article 37 of the Law interprets which documents and information are not subject to provision for review upon request; these include: confidential information (paragraph 2, part 1, Article 37); information subject to disclosure in accordance with other legislative or regulatory acts (paragraph 4, part 1, Article 37).
The information requested by the Plaintiff relates to confidential information and therefore, not violating the Laws of Ukraine “On Citizens' Appeals” and “On Information”, the Defendant in his responses refers to the fact that the Plaintiff has the right to apply to the central body for information and to familiarise himself with information about the activities of the criminal-executive system by region on the website of the State Department. General norms in which the Plaintiff is interested in his appeal and which concern directly the activities of the criminal-executive system are found in regulatory legal acts in the Criminal-Executive Code of Ukraine and in the orders of the State Department which do not have a stamp (secret) and with which any citizen can familiarise himself on a legal website on the internet. The requirements of which the Defendant observes in his activities.
I would like to note that if a public organisation, established in accordance with the Constitution of Ukraine for the exercise and protection of the rights and freedoms of citizens and the satisfaction of their political, economic, social, cultural interests, in accordance with the Regulations on its activities, has the right of control over the activities of a Military organisation and law enforcement agencies (the Defendant does not belong to a military formation), then the subject of civil control in accordance with Article 5 of the Law of Ukraine “On Democratic Civil Control over the Military Organisation and Law Enforcement Agencies of the State” in the sphere of defence and security, law enforcement activity of the state is:
the validity of decisions of state bodies on military issues and issues of law enforcement activity from the point of view of their compliance with the principles of internal and external policy, international obligations of Ukraine under concluded treaties, the consent for the binding nature of which was granted by the Verkhovna Rada of Ukraine;
the progress of the implementation of programmes for the reform of the Armed Forces of Ukraine, other military formations, in particular programmes for transferring the Armed Forces of Ukraine to a contract form of personnel recruitment, solving problems of social and professional adaptation of servicemen subject to discharge or discharged into the reserve or retired, their provision with housing, and the conversion of former military facilities, military, military-political, and military-technical cooperation with other states and interstate unions, the creation and development of the production of new types of armaments and military equipment, the conversion of defence enterprises and production facilities, the alienation and sale of military property, the privatisation of enterprises that are classified to the sphere of management of the Ministry of Defence of Ukraine and other central executive bodies, other general state programmes in the sphere of defence and national security, law enforcement activity; formation and implementation of personnel policy in these spheres;
the state of military-patriotic education of youth, preparation of citizens for the defence of the Homeland;
issues of export and import of armaments and military equipment;
compliance with the requirements of the Constitution and laws of Ukraine regarding the rights and freedoms of citizens who are in service in the Armed Forces of Ukraine, other military formations, law enforcement agencies, the state of legal and social protection of persons who are subject to call-up for military service, are undergoing military service or are in the reserve, as well as those discharged from military service and members of their families;
formation, approval, and use of expenditures defined by the Law on the State Budget of Ukraine for the needs of defence, national security, law enforcement activity; compliance with budget legislation in these spheres;
formation, financial provision, and execution of the defence order, plans of mobilisation preparation and mobilisation, measures for the disposal and liquidation of armaments, prevention of emergencies, and overcoming their consequences;
participation of units of the Armed Forces of Ukraine in international peacekeeping operations and anti-terrorist actions, joint military exercises, and other actions within the framework of international military and military-technical cooperation;
compliance with the laws of Ukraine when resolving issues about the admission of units of the armed forces of other states to the territory of Ukraine and during their stay on its territory;
compliance with legality when considering by state authorities and military officials appeals and complaints of servicemen, persons discharged from military service, and members of their families.
Not violating the requirements of this Law, specifically Article 21, “Duties of bodies of military management, officials of the Armed Forces of Ukraine, other military formations, law enforcement agencies regarding assistance in the exercise of civil control.” Informing the public, carrying out interaction of the Armed Forces of Ukraine, other military formations, law enforcement agencies with the Verkhovna Rada of Ukraine, public organisations, mass media is entrusted to one of the deputies of the head (state secretary) of the ministry, another central executive body, to whom the press services and public relations units created in the aforementioned bodies are subordinate; the Defendant proposed to apply to the central body of the State Department and to the website of the central body. Therefore, the Defendant's actions do not fall under Article 5 of the Law of Ukraine “On Corruption”, as referred to by the Plaintiff in the subsequent appeal.
On the basis of the above stated and guided by current legislation, there are no violations of legislation or the rights of the Plaintiff in the actions of the Defendant. Therefore, we consider the claim groundless and unfounded.
We ask the court to leave the claim without satisfaction.

Representative of the Defendant
by power of attorney No. 245 of 14.05.2007
(power of attorney attached) L. P. Zamura


To the Budyonny District Court of Donetsk
of Oleksandr Pavlovych Bukalov
OBSERVATIONS ON THE OBJECTIONS
of the Department of the State Department of Ukraine
for the Execution of Sentences in the Chernihiv Region
I appealed to the Budyonny District Court of Donetsk with an administrative claim regarding the unlawful refusal to provide information by the Head of the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region, Mr. LOPATIN V. I.
The Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region provided its objections to my claim.
These objections are unacceptable, and in some positions are untrue.
1. Thus, the Defendant asserts that according to paragraph 2 of Article 10 of the Law of Ukraine “On Information”, “the right to information is ensured... by the creation in state bodies of special information services or systems that would ensure access to information in the established order”. This is so. But the Law does not speak about central state bodies, so such a service must also be created in the Department of the State Department of Ukraine for the Execution of Sentences in the Chernihiv Region. In what way the necessity of creating such a service, provided for in the Law, justifies the non-provision of information to me is not clear. In my opinion, the cited provision of the Law in no way explains the refusal to provide information.
Unfortunately, the Defendant does not cite another norm, fixed in the same article, which states that “The right to information is ensured... by the duty of bodies of state power, as well as bodies of local and regional self-government to inform about their activities and adopted decisions”. And it is exactly this requirement of the Law that was violated by the Defendant.
2. In his Objections, the Defendant asserts that “all available information concerning the activities of the criminal-executive system is posted on the website” of the agency. This is not so, because “all available information” is information, excluding only that to which access is restricted. Therefore, I believe that this assertion is untrue.
3. With reference to Article 34 of the Constitution of Ukraine, the Defendant assures that he did not violate it, because paragraph 3 of Article 34 contains a norm according to which “the right to collect information may be limited”. Such a norm indeed exists. However, it seems that the Defendant, while preparing the Objections, did not read this article of the Constitution in full, as it indicates further when and for what reasons restrictions can be applied. And in the Constitution it is said:
“The exercise of these rights may be limited by law in the interests of national security, territorial integrity, or public order with the aim of preventing unrest or crimes, for the protection of public health, for the protection of the reputation or rights of other people, for the prevention of the disclosure of information received in confidence, or for the maintenance of the authority and impartiality of justice.”
The Defendant does not explain by which of the listed reasons he was guided when refusing me the receipt of information. Without such an explanation, his assertion remains only a statement of the norm of the Constitution and in no way can be applied in justification of the refusal to provide me with information.
4. Furthermore, the Defendant draws attention to the norm of part 2 of Article 29 of the Law of Ukraine “On Information”, which provides that the provision of information upon requests “are established by this Law or by contracts (agreements)”. And there is no such Contract between me and the department headed by the Defendant. This is so, indeed there is none. However, the Defendant reads the norm of the Law in a surprisingly selective way, which actually establishes the procedure and conditions for providing information nevertheless “by this Law or by Contract, if the provision of information is carried out on a contractual basis”
That is, the provision of information under a Contract is applied when a Contract exists, when the parties have agreed to conclude such a Contract. Concluding a Contract is not a mandatory element of obtaining information, and its conclusion is the choice of the parties, not a requirement for them to carry out information relations. Its absence does not prevent anyone from requesting information. Thus, the absence of a concluded Contract in no way prohibits me from requesting information, just as it in no way relieves the Defendant of the duty to provide me with such information without fail. Thus, the absence of a Contract does not give the Defendant the right not to provide the requested information.
5. The Defendant also notes that part 1 of Article 32 of the Law of Ukraine “On Information” grants the right of “familiarisation with official documents”. However, in the Defendant's opinion, my request speaks about obtaining confidential information. At the same time, the Defendant asserts that according to Article 30 of the Law of Ukraine “On Information”, “legal entities independently determine the access regime to it, including its belonging to the category of confidential”
This argument of the Defendant cannot be accepted for two reasons.
Firstly, “independence in determining access to information” does not at all mean that the decision about access can be made by any mid-level official and in any situation. Such an assertion means that any agency only determines the list of information to which access is restricted by its own regulatory document. This list is limited. It also exists in the Department for the Execution of Sentences. It was approved by the Order of the Department No. 248 of 19.12.2006 and is called “LIST of confidential information that is state property, in the bodies and institutions for the execution of sentences, pre-trial detention centres and educational institutions of the State Criminal-Executive Service of Ukraine, and which is granted the restricted access stamp “For Official Use”. (attached). Familiarisation with this List makes it possible to reach the unambiguous conclusion that the requested information was not classified by the agency as confidential, as the Defendant asserts, and therefore, can be provided upon requests. The non-confidentiality of the requested information is confirmed also by the fact that the same information is regularly provided by the central body of the agency (copies of responses attached), and the Defendant himself provided it in 2005, but apparently forgot about it. Thus, the Defendant's assertion that the requested information is confidential is untrue.
And secondly. The Defendant provides only a fragment of the article of the Law. But the full sentence from the Law, from which the Defendant takes the fragment, looks like this:
“Citizens, legal entities who possess information of a professional, business, production, banking, commercial and other character, obtained at their own expense, or information which is the subject of their professional, business, production, banking, commercial and other interest and does not violate the secrecy provided by law, independently determine the access regime to it, including its belonging to the category of confidential, and establish for it a system (methods) of protection.”
I hope that the Defendant does not consider budgetary funds, which were used to create this information, as his own funds. And if this information was created not at the Defendant's own expense, but rather at the expense of mine as a person who pays taxes, on which the agency where the Defendant works also exists, then for this reason too I have the right to know information created including at my expense.
And finally, regarding the citation of the Law of Ukraine “On Democratic Civil Control over the Military Organisation and Law Enforcement Agencies of the State”. The Defendant asserts that the requirements of Article 21 of the Law were not violated, as “duties regarding assistance in the exercise of civil control are entrusted to one of the deputies of the Ministry (agency)”.
Such a requirement indeed exists. However, in no way does it allow the Defendant not to provide information. Because in the same article of the cited Law, it is emphasised that “state bodies whose activities are connected with the protection of public order and the fight against crime, assist... subjects of civil control in obtaining the necessary information.” It is hardly possible to consider the Defendant's refusal to provide information as compliance with this requirement of the Law.
As for the duties of the deputy of the agency, if the Defendant wants to convince with this reference of the rightness of his advice to apply to the management of the agency in Kyiv instead of providing information from the department, then it is unacceptable, because that deputy must only assist in the exercise of control, and in no way provide the information.
Nevertheless, I can explain that I have repeatedly appealed to the management of the Department in Kyiv regarding the non-provision of information by its some territorial bodies. Eventually, the management of the Department issued on 23 March 2007, instruction No. 1/1-1198/Kn (attached), signed by the Head of the Department, according to which the heads of departments, including directly the Defendant, must
“ensure strict compliance with the requirements of information legislation when informing citizens and public organisations about the activities of bodies and institutions for the execution of sentences, in particular when providing information upon requests”.
On the execution of the instruction and the measures taken, all heads, including the Defendant, had to report to the Head of the Department by 1 April 2007. I am confident that the Defendant reported, which did not prevent him from preparing his Objections to my claim a month and a half later, which contradict not only the requirements of the Constitution and Laws of Ukraine, but even the instruction of his direct superior.
These explanations of mine testify to the fact that all the Defendant's arguments, aimed at justifying his refusal to provide me with the requested information, are unacceptable and such that contradict the requirements of the Constitution of Ukraine, its Laws, and the instruction of the Head of the Department. This means that his refusal to provide me with the requested information is unlawful.

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