DISCLOSURE OF CLASSIFIED INFORMATION IN UKRAINE: LEGAL CONSEQUENCES The following information refers to legal regulation of classified information in Ukraine, and namely punishments for its disclosure. There are three types of restricted information (information with limited access) defined in Ukrainian legislation (The Law “On Access to Public Information”): confidential information, secret information and information for official use.
Confidential information is information, access to which is limited by a person or legal entity, apart from the subjects of public authority, and that can be disseminated at their wish and under their conditions. Secret information is information, access to which is limited by state bodies in accordance with conditions set by the respect6ive legislation and disclosure of which may harm a person, society, and the state. Information that contains state, professional, banking, investigation secrets and other secrets envisaged by legislation shall be considered secret, too. Information for official use is: 1) Information in the documents of subjects of public authority – internal official correspondence, memoranda, and recommendations if they refer to the development of the direction of the activity of institution or performance of control and oversight functions by the bodies of state power and decision making process and precede public discussion and/or passing of the decisions; 2) Information collected in the process of search, operative, and counterintelligence activity, in the defense sphere of the country and is not classified as state secret. There are different sanctions for the disclosure of different types of restricted information. The respective offences and crimes along with the punishments are provided for in the Administrative Offences Code of Ukraine and the Criminal Code of Ukraine. As the quantity of the violations forseen in these codes is rather big, we would like to limit ourselves with crimes only. Below there will be a detailed list of unlawful deeds set forth in the Criminal Code of Ukraine along with the punishments, but first we will make a short summary: 1) There is a maximum penalty of ten years for disclosure of information. It happens in case of disclosure of military information that constitutes state secret, where no elements of high treason are involved or loss of documents or material that contain military information that constitutes state secret or loss of things, the information on which constitutes state secret, by a person to whom they were entrusted, where the loss happens as a result of violation of rules related to handling of any such documents, material or things, in case these deeds caused any grave consequences. 2) There is a general rule on exemption of liability in some situations, no matter what kind of restricted information was disclosed: The Law “On Access to Public Information”, Article 11, Protection of a person, who promulgates information. Officials cannot be legally liable, despite the breach of their duties, for the disclosure of information about violations or information that deals with a serious threat to the health or security of citizens and environment if a person was guided by good intentions and had justify conviction that information was authentic and has evidences of violation or deals with serious threat to the health or security of citizens or environment. 3) The necessity to establish that the disclosure actually caused harm to national security, human rights or other legally protected values depends on the kind of a violation and is described below. The crimes foreseen by Ukrainian law are: 1) Disclosure of state secrets 1. Disclosure of information related to state secrets by a person, to whom this information was entrusted or became available in connection with his/her official duties, provided that no elements of high treason or espionage were involved, - shall be punishable by imprisonment for a term of two to five years with or without the deprivation of the right to occupy certain positions or engage in certain activities for a term up to three years. 2. The same act that caused any grave consequences, - shall be punishable by imprisonment for a term of five to eight years. 2) Loss of documents that contain state secrets 1. Loss of documents or any other physical media for secret information that contain state secrets, and also any items that represent state secrets by a person, to whom they were entrusted, where such loss resulted from the violation of regulations established by law with regard to the handling of any such documents and other physical media for secret information or items, - shall be punishable by imprisonment for a term up to three years with or without the deprivation of the right to occupy certain positions or engage in certain activities for a term up to three years. 2. The same act that caused any grave consequences, - shall be punishable by imprisonment for a term of two to five years. 3). Transfer or collection of confidential information that belongs to the State 1. Transfer or collection of economic, scientific, technological or other confidential information that belongs to the State for the purpose of transferring it to foreign businesses, institutions, organizations or their representatives by a person, to whom this information was entrusted or became available in connection with his/her official duties, provided that no elements of high treason or espionage were involved, - shall be punishable by restraint of liberty for a term up to three years or imprisonment for a term of two to five years, with or without the deprivation of the right to occupy certain positions or engage in certain activities for a term up to three years. 2. The same actions committed for mercenary motives, or where they caused any grave consequences for the State, or repeated, or committed by a group of persons upon their prior conspiracy, - shall be punishable by imprisonment for a term of four to eight years with the deprivation of the right to occupy certain positions or engage in certain activities for a term up to three years. 4) Disclosure of military information that constitutes state secret or loss of documents or materials that contain any such information 1. Disclosure of military information that constitutes state secret, where no elements of high treason are involved, - shall be punishable by imprisonment for a term of two to five years. 2. Loss of documents or material that contain military information that constitutes state secret or loss of things, the information on which constitutes state secret, by a person to whom they were entrusted, where the loss happens as a result of violation of rules related to handling of any such documents, material or things, - shall be punishable by imprisonment for a term of two to five years. 3. Any such acts as provided for by paragraph 1 or 2 of this Article, if they caused any grave consequences, - shall be punishable by imprisonment for a term of five to ten years. 5) Unlawful disclosure of confidential medical information Willful disclosure of confidential medical information by a person to whom it was available in connection with his/her professional or official duties, where such disclosure caused any grave consequences, - shall be punishable by a fine up to 50 tax-free minimum incomes, or community service for a term up to 240 hours, or deprivation of the right to occupy certain positions or engage in certain activities for a term up to three years, or correctional labor for a term up to two years. 6). Intentional violation of the secrecy of voting 1. Willful violation of secrecy of voting during the election or referendum, which resulted in disclosure of the will of a citizen who took part in elections or referendum, – shall be punishable by a fine of one hundred to three tax-free minimum incomes, or correctional labor up to two years, or restraint of liberty for up to three years. 2. The same action committed by a member of the election commission or referendum commission or other officer using his official position, - shall be punishable by a fine of three hundred to five hundred tax-free minimum incomes, or restraint of liberty for up to three years, or imprisonment for the same period with deprivation of right to occupy certain positions or engage in certain activities for term of one to three years or without it. 7) Violation of referendum law (extract) Violation of the secrecy of ballot committed by a member of a referendum committee or any other officer shall be punishable by a fine up to 50 tax-free minimum incomes, or correctional labor for a term up to two years, or imprisonment for a term of one to five years. 8) Violation of privacy of mail, telephone conversations, telegraph and other correspondence conveyed by means of communication or via computers 1. Violation of privacy of mail, telephone conversations, telegraph and other correspondence conveyed by means of communication or via computers, shall be punishable by a fine of 50 to 100 tax-free minimum incomes, or correctional labor for a term up to two year, or restraint of liberty for a term up to three years. 2. The same actions committed in respect of statesmen or public figures, by an official, or by use of special devices for secret reading of information, - shall be punishable by imprisonment for a term of three to seven years. 9) Disclosure of the secrecy of adoption 1. Disclosure of the secrecy of adoption against the will of an adopter, - shall be punishable by a fine up to 50 tax-free minimum incomes, or community service for a term up to 240 hours, or correctional labor for a term up to two years. 2. The same act committed by an official or employee of a medical institution who had the information on adoption available by virtue of office or employment, or where it caused any grave consequences, - shall be punishable by a fine up to 200 tax-free minimum incomes, or restraint of liberty for a term up to three years, or imprisonment for the same term, with or without the deprivation of the right to occupy certain positions or engage in certain activities for a term up to three years. 10) Illegal collection for the purpose of use or use of information that constitutes bank or trade secrets Willful actions taken to obtain information that constitutes bank or trade secrets for the purpose of disclosure of any other use (commercial espionage), and also illegal use of such information, where it caused a significant damage to a business entity, - shall be punishable by a fine of 200 to 1000 tax-free minimum incomes, or restraint of liberty for a term up to five years, or imprisonment for a term up to three years. 11) Disclosure of commercial or bank secrets Willful disclosure of commercial or bank secrets without consent of its owner, by a person who was aware of these secrets in connection with his/her professional or official activity, where it was committed for selfish motives and caused a significant damage to a business entity, - shall be punishable by a fine of 200 to 500 tax-free minimum incomes with deprivation of the right to occupy certain positions or engage in certain activities for a term up to three years, or by correctional labor up to two years, or imprisonment for the same term. 12) Disclosure of information on safety measures in respect of a person taken under protection 1. Disclosure of information on safety measures in respect of a person taken under protection, by an official who made decisions on these measures, a person who implements these decisions, or a person who became aware of these decisions due to his/her official position, and also by a person taken under protection, where these acts caused any harm to the health of a person taken under protection, - shall be punishable by a fine of 100 to 300 tax-free minimum incomes, or correctional labor for a term up to two years, or restraint of liberty for a term up to three years. 2. The same actions that caused death of a person taken under protection or any other grave consequences, - shall be punishable by arrest for a term up to six months, or restraint of liberty for a term up to five years, or imprisonment for the same term. 13) Interference with activity of a defense attorney or legal agent 1. Any interference with lawful activity of a defense attorney or legal agent, or violation of legal guaranties of their activity and professional secrets, - shall be punishable by a fine of 100 to 200 tax-free minimum incomes, or correctional labor for a term up to two years, or arrest for a term up to six months, or restraint of liberty for a term up to three years. 2. The same actions committed by a person through abuse of office, - shall be punishable by a fine of 300 to 500 tax-free minimum incomes, or restraint of liberty for a term up to three years, with the deprivation of the right to occupy certain positions or engage in certain activities for a term up to three years. 14) Disclosure of information on pretrial investigation or inquiry 1. Disclosure of information on preliminary investigation or inquiry by a person who was notified, in a manner prescribed by law, of his/her obligation not to disclose any such information, provided that this disclosure was not authorized by a prosecutor, investigator, or a person who conducted inquiry or pretrial investigation, - shall be punishable by a fine of 50 to 100 tax-free minimum incomes, or correctional labor for a term up to two years. 2. Disclosure of information on preliminary investigation or inquiry by a judge, prosecutor, investigator, inquiry officer, detective officer, whether on not this person was directly involved in such pretrial investigation or inquiry, where this information defames a person, derogates his/her honor and dignity, - shall be punishable by a fine of 100 to 300 tax-free minimum incomes, or correctional labor for a term up to two years, or arrest for a term up to six months, with the deprivation of the right to occupy certain positions or engage in certain activities for a term up to three years. References: The Criminal Code of Ukraine (in English): http://www.legislationline.org/documents/action/popup/id/16257/preview The Law of Ukraine “On Access to Public Information” (in English): http://www.i-m-s.dk/files/publications/Law_on_Access_to_Public_Information___English.pdf prepared by Olga Sushko (MLI) --
