LAW OF UKRAINE. ON ACCESS TO ARCHIVES OF REPRESSIVE AGENCIES OF TOTALITARIAN COMMUNIST REGIME OF 1917-1991
On access to Archives of Repressive Agencies of Totalitarian Communist Regime of 1917-1991
LAW OF UKRAINE
The Verkhovna Rada of Ukraine,
being aware that archives are an integral and indispensable part of the historical heritage of Ukrainian people, recognizing the fact that the archives guarantee preservation of human memory;
noting that everyone's right to receive objective information about the history of the country is one of the pillars of a democratic state, given the increasing interest of the public to history, especially the history of the XX century Ukraine;
considering the complexity of the problems associated with access to the archives of the repressive agencies of the communist totalitarian regime that operated on the territory of the present-day Ukraine during the XX century, conflicting requirements of transparency and secrecy and protection of privacy, and recognizing the need to ensure broad access to historical information;
realizing that a better understanding of recent history can help prevent conflicts and hatred in society;
taking into account the Recommendation of the Committee of Ministers to the Member States concerning the European policy of access to the archives № R (2000) 13;
realizing that closedness of archives has become one of the preconditions for the annexation of the Crimean peninsula and military conflict in the Donetsk and Lugansk regions;
seeking to facilitate social dialogue;
to prevent the repetition of crimes of totalitarian regimes, any discrimination on ethnic, social, class, ethnic, racial or other grounds in the future, restoration of historical and social justice, eliminate threats to independence, sovereignty, territorial integrity and national security of Ukraine adopts this law.
Chapter I GENERAL PART
Article 1. General Provisions
1. This law regulates the relations connected with ensuring the right of everyone on access to archival information of repressive agencies of the communist totalitarian regime of 1917-1991.
2. The purpose of this law is to ensure transparency of archival information of repressive agencies of the communist totalitarian regime of 1917-1991.
3. The Law of Ukraine "On Personal Data Protection" does not apply to relations concerning receipt of archival information of repressive agencies of the communist totalitarian regime of 1917-1991.
4. Ukraine's legislation on access to archival information of repressive agencies of the communist totalitarian regime of 1917-1991 is based on the Constitution of Ukraine and consists of this Law, the Law of Ukraine "On National Archive Fund and Archive Institutions", and other legal acts of Ukraine.
Article 2. Terms
1. In this law the following terms shall have the following meanings:
1) archival information of repressive agencies – the information fixed in any media, that was created, received or was stored at repressive agencies;
2) victim of repressive agencies – the person who has suffered any persecution or repression, whose fundamental rights and freedoms have been violated by representatives of repressive agencies;
3) medium of archival information – any material carrier, on which archive information of repressive agencies is recorded. Media of archival information of repressive agencies according to the law belong to the National Archive Fund and are properties of the State;
4) digitization of the media of archival information - creation of digital copies of archival information medium by scanning, photography, radiography or in any other way in order to ensure access to archival information via telecommunication networks and to create an insured digital copy;
5) non-staff employees of repressive agencies - persons who in 1917-1991 were registered in the departments of repressive agencies as agents for performance of any special orders; agents, used in special conditions; agents of all other categories; informants of all categories; non-staff operating executives; residents of all categories; holders or owners of hired or secret or safe addresses, safe houses, "mailboxes", points of secret communications, secret entrusted or contact persons of all categories, other persons, who in any manner cooperated with repressive agencies in 1917-1991, including provision of information about other persons;
6) repressive agencies - the agencies of communist totalitarian regime defined by this Law that operated in Ukraine in 1917-1991, used the means and methods of state coercion and terror on specific persons or groups because of political, social, class, national, religious or other motives, whose activities are characterized by numerous facts of violations of human rights;
7) administrator of archival information – the Sectoral State Archive of the Ukrainian Institute of National Memory (hereinafter – the SSA UINM), and in cases defined by this Law, also the state bodies, bodies of the Autonomous Republic of Crimea, local governments, archival institutions, which have actually archive information of repressive agencies;
8) staff members of repressive agencies – military servicemen, employees (workers, officials) of repressive agencies, who were in formal employment or service relationship with these agencies.
Article 3. Repressive Agencies
1. In this Law the following institutions are recognized as repressive agencies:
1) All-Russian Extraordinary Commission for Combating Counterrevolution and Sabotage; Ukrainian Extraordinary Commission for combating counter-revolution, speculation, sabotage and official crimes; Supreme Court; Supreme Court of Cassation; the Supreme Tribunal of Cassation; Central Intelligence Agency (Intelligence Directorate of the Staff of the Workers and Peasants Red Army, the Fourth Directorate of the Staff of the Workers and Peasants Red Army, the Information Statistical Office of Workers and Peasants Red Army, the Intelligence Agency of the Workers and Peasants Red Army, the Fifth Directorate of the People's Commissariat of Defence, Intelligence Directorate of the General Staff of the Red Army, Central Intelligence Agency of the People's Commissariat of Defence, Central Intelligence Directorate of the General Staff of the Armed Forces); State Political Administration; The Unified Supreme Tribunal; the Committee of State Security (KGB); Ministry of the Interior; Ministry of State Security; Ministry of Public Order; Ministry of Justice; People’s Commissariat of Internal Affairs (NKVD); People's Commissariat of State Security; the People's Commissariat of Justice; Unified State Political Administration; Prosecutor Office of the Supreme Court; the Prosecutor's Office (General Prosecutor Office, State Prosecutor's Office); Office of Counterintelligence (SMERSH); people's courts; provincial, district, regional courts; revolutionary and military tribunals;
2) territorial, functional, structural units of the bodies referred to in paragraph 1 of this Article, and directly subordinated to these bodies fighting units, convoy protection (guard, escort guards, guard troops) troops (forces of internal service (protection), internal troops), state border guard (troops), troops for government communications, engineering, construction and special units;
3) Chief Directorate of labour camps (GULAG) and labour settlements and places of detention, including camp management, camp offices and branches, colonies and special commandant's office, special panels and a special commissions under the bodies referred to in paragraph 1 of this Article, interdepartmental extra-judicial agencies within the People's Commissariat for Internal Affairs (under the Head of the Regional directorate of the People's Commissariat for Internal Affairs) and the prosecutor of the Ukrainian SSR (region) ("two-member panels"), the republican and regional "special troika" (special three-member panels), food detachments (food-requisition detachments), auxiliary troops that were at the disposal of commercial agencies;
4) other repressive agencies, their territorial, functional or structural units, officials, whose activities were incompatible with the fundamental rights and freedoms of man and citizen, and was characterized by massive human rights violations in the form of individual and mass killings, executions, deaths, deportations, tortures, use of forced labour or other forms of physical terror, persecution on ethnic, national, religious, political, class, social or other reasons, causing moral and physical suffering during the use of psychiatric facilities for political purposes, violations of freedom of conscience, opinion, expression, press freedom and absence of political pluralism.
Article 4. Basic Principles of State Policy on Access to Archival Information of Repressive Agencies
1. The State guarantees the right of everyone on access to archival information of repressive agencies.
2. The state guarantees free access to archival information of repressive agencies with the account of specific features established by this Law.
3. The State shall guarantee conditions for the proper storage, gain and use of archival information of repressive agencies.
4. The state provides digitization of archival information media of repressive agencies.
5. The state shall take measures to find and receive archival information of repressive agencies, which is stored in the relevant institutions of foreign countries.
6. The Cabinet of Ministers of Ukraine, the Ukrainian Institute of National Memory, other state bodies, and bodies of the Autonomous Republic of Crimea, local governments, and archival institutions implement the state policy in the area of access to archival information of repressive agencies within their jurisdiction.
Article 5. Guarantees on Provision of Access to Archival Information of Repressive Agencies
1. The right on access to archival information of repressive agencies shall be guaranteed by:
1) responsibility of administrators of archival information to provide and disclose archival information of repressive agencies, except as provided in this Law;
2) maximum simplification of the procedures for obtaining information;
3) free choice of forms of access to archival information;
4) prohibition of assignment of archival information of repressive agencies to classified information;
5) prohibition of assignment of archival information of repressive agencies to confidential or proprietary information, except as provided in this Law;
6) establishment of responsibility for violation of legislation on access to archival information of repressive agencies.
Article 6. Principles of affording access to archival information of repressive agencies
1. Access to archival information of repressive agencies under this Law is carried out according to the principles:
1) openness of the activity of the administrators of archival information;
2) lawfulness, transparency and procedural fairness of access to archival information of repressive agencies;
3) free receipt and dissemination of information, except the restrictions established by this Law;
4) active search, systematization of archival information of repressive agencies in Ukraine and abroad;
5) state assistance in conducting studies aimed at restoring national memory of the Ukrainian people;
6) the liability of a person for the dissemination of archival information of repressive agencies;
7) equality, regardless of race, political, religious and other beliefs, sex, ethnic or social origin, property, residence, language or other characteristics.
Chapter ІІ LEGAL STATUS OF ARCHIVAL INFORMATION OF REPRESSIVE AGENCIES
Article 7. Provision of Access to Archival Information of Repressive Agencies
1. Access to archival information of repressive agencies is provided through:
1) providing everybody for study a medium with archival information or its copy, creation of a relevant reference system;
2) making a copy of archival information medium or its individual parts;
3) access to digital copy of archival information medium;
4) publication of a digital copy of archival information medium on the official website of archival information administrator;
5) issuing a copy of archival information medium or its individual parts on request of a person;
6) production of archival information notes, excerpts from documents;
7) publication, exhibition and other forms of popularization of archival information of repressive agencies;
8) effective use of archival information of repressive agencies and satisfaction of the needs of individuals and legal entities in other form stipulated by law.
Article 8. Openness of Archival Information of Repressive Agencies
1. Archival information of repressive agencies is open, except the cases defined by this Law.
2. There cannot be limitations to the access to archival information of repressive agencies about:
1) the situation with the environment, quality of food and household items;
2) accidents, disasters, natural hazards and other emergencies that have occurred or may occur and threaten the safety of people;
3) the health of the population, its standard of living, including food, clothing, housing and medical care and social welfare, as well as social and demographic indicators, as well as the state of law and order, education and culture of the population;
4) violations of human rights and freedoms (murder, causing injury, tortures, torments, persecution, organization of Great Famine, organization of mass starvation, deportation, political repression or any other illegal or criminal acts committed by representatives the totalitarian regimes);
5) the illegal actions of state agencies, local governments and their officials and officers;
6) public interest (socially relevant information);
7) access to which cannot be restricted in accordance with the laws and international treaties of Ukraine, consent to ratification of which was granted by the Verkhovna Rada of Ukraine.
3. There cannot be limitations to access to archival information of repressive agencies, the media of which contain secrecy stamps which are not provided by the legislation of Ukraine.
4. Archival information of repressive agencies on staff or non-staff employees of repressive agencies shall be open; access to such information cannot be restricted for any reason.
5. If the person referred to in Paragraph Four of this Article, however, is a victim of repressive agencies, access to information about such a person is not restricted.
Article 9. Restricted Access to Archival Information of Repressive Agencies
1. A person, who is a victim of repressive agencies, has the right to restrict access to archival information of repressive agencies about himself/herself, except for the persons referred to in paragraph four of Article 8 of the Law.
2. The victim of repressive agencies, placing limits on access to information about himself/herself has to indicate, which information limitations are set to (type of information, pages, paragraphs, etc.), as well as the period for which limitations are set with the consideration of the requirements specified by Paragraph Four of this Article
3. Family members and relatives of the victim of repressive agencies, other persons except those ones referred to in Paragraph Four of Article 8 of the Law are entitled to partial restrictions on access to personal information for the period specified in Paragraph Four of this Article. Meanwhile, this person has a right to limit access only to his / her racial (ethnic) origin, political or philosophical beliefs, religion, and data concerning health and sexual life.
4. The persons mentioned in Paragraphs First – Third of this Article have the right to restrict access to archival information of repressive agencies about themselves for a period not exceeding 25 years.
5. If the archived information of repressive agencies about the persons mentioned in Paragraphs First – Third of this Article was published, restricting access to such information is not applicable.
6. It is the information but not a document that is subject to restriction of access.
Chapter ІІІ ACCESS TO ARCHIVAL INFORMATION OF REPRESSIVE AGENCIES IN ARCHIVAL INSTITUTIONS
Article 10. Provision of access to archival information of repressive agencies in archival institutions
1. Everyone has the right of access to archival information of repressive agencies.
2. Access to archival information of repressive agencies is provided by SSA UINM and other administrators of archival information.
3. Administrators of archival information provide access to archival information of repressive agencies by all available means.
4. Administrators of archival information carry out digitization of archival information media of repressive agencies and provide placing of digital copies of these media in the Internet with consideration of the limitations established by this Law.
5. Administrators of archival information publish archival information of repressive agencies with consideration of the limitations established by this Law.
6. Archival information is distributed on the official sites with provision of proper indexing and capabilities to search such information.
7. Administrators of archival information provide distribution on their official websites of actual reference system, information about existing limitations for the access to archival information of repressive agencies, term of such restrictions, and other information necessary for the realization of the right on access to archival information of repressive agencies.
Article 11. Work with Archival Information Media in Archival Institutions
1. Access to archival information media in archival institutions is provided on the basis of an identity document and a filled application form. It is prohibited to require from the person to provide any other documents.
2. Prior to the start of work with archival information media, the person is informed that he/she is solely responsible for the form and content of archival information of repressive agencies disseminated by the person, as well as all the possible legal consequences of such dissemination. The person is deemed informed about the responsibility, if the person has begun to work with archival information media.
3. The person has the right on open and free of charge access to archival information media or their copies in the reading room of the archive institution with consideration of the limitations established by this Law.
4. The person may make copies of archival information of repressive agencies, including use of technical means or receive from archival institutions copies of documents and extracts from them if it does not damage the condition of the documents and also to demand that such copies or extracts were certified by the archival institution.
5. A person's self-supporting production of a copy of archival information of repressive agencies from a medium of such information is free of charge. It is forbidden to demand direct or indirect payment for person's independent making of a copy of archival information of repressive agencies.
6. Making a copy of archival information of repressive agencies by its manager is carried out with reimbursement of actual expenses for such production.
7. Administrators of archival information distribute on their official websites information about executive officers / officials, who are responsible for the provision of access to archival information of repressive agencies, including their contact information, job title, full name and surname.
Chapter ІV ADMINISTRATORS OF ARCHIVAL INFORMATION
Article 12. Sectoral State Archive of Ukrainian Institute of National Memory
1. The SSA UINM is created to ensure the direct right on access to archival information of repressive agencies.
2. The procedure of formation of the Ukrainian Institute of National Memory determined by the law.
3. The SSA UINM is created according to the Resolution of the Cabinet of Ministers of Ukraine on the basis of a joint application of the Ministry of Justice of Ukraine and the Ukrainian Institute of National Memory.
4. Information about the SSA UINM, its structure, objectives, decisions taken and other information is mandatory for disclosure in accordance with the law and is placed on its official website and by other means to the extent and in the manner provided by the Law of Ukraine "On Access to Public Information".
5. The SSA UINM provides:
1) record keeping and storage of archival information media;
2) keeping the state record of documents of the National Archival Fund;
3) creation and storage of the insurance fund of archive documents and the fund of using them;
4) identification of unique documents of the National Archival Fund;
5) establishment and improvement of the reference system;
6) organization of archival documents, issuing archival certificates, copies, excerpts from archival documents to legal and natural persons in the prescribed manner;
7) access of persons to archival information of repressive agencies;
8) systematic search and accumulation of archival information in Ukraine and abroad;
9) systematic restoration and digitization of archival information media, as well as providing of access to their digital copies on the official website;
10) keeping the inter-archival register of the victims of repressive agencies and persons referred to in Article 9 of the Law, who restricted the access to information about themselves;
11) exercise other powers defined by law.
6. The SSA UINM has a preferential right over other persons to purchase (receipt) archival information media of repressive agencies, archival information media of foreign intelligence services, structures and representatives of the Ukrainian liberation movement under other conditions being equal.
Article 13. Responsibility, appeal decisions, acts or omissions of administrators of archival information
1. Persons responsible for provision of access to archival information of repressive agencies, heads of archival information administrator bear disciplinary, administrative and criminal responsibility for such acts or omissions.
2. Administrators of archival information, their executive officers / officials are not liable for the consequences of the spread of archival information of repressive agencies by requestors and persons, who are provided with access to archival information of repressive agencies, unless the executive officer / official of the appropriate administrator of archival information is a requestor or a person who is given access to archival information of repressive agencies on general principles.
3. The decisions, action or inaction of executive officers / officials of the administrators of archival information may be appealed to the managers of administrators of archival information, a higher body or court.
Chapter V FINAL AND TRANSITIONAL PROVISIONS
1. This law comes into force on the day following the day of its publication.
2. The persons referred to in Article 9 of this Law, within one year from the date of entry into force of this Law may submit to the administrator of archival information a request for restriction of access to archival information of repressive agencies about himself/herself in the manner prescribed by this Law. In case of failure to submit such a request in due time, the access to information about these persons is not subject to restrictions.
3. Amend the following legislative acts of Ukraine:
1) in Article 2123 of the Code of Ukraine on Administrative Offences (Bulletin of Verkhovna Rada of Ukrainian SSR, 1984, Annex to № 51, Article 1122):
the first paragraph of the first chapter after the words "On access to public information" to be supplemented with the words "On access to archives of repressive agencies of the communist totalitarian regime of 1917-1991"; after the second chapter supplement with a new chapter of the following content:
- “Violation of the requirements of the Law of Ukraine "On access to archives of repressive agencies of the communist totalitarian regime of 1917-1991", namely unjustified classification of information as information with limited access, failure to reply to the request for information, failure to provide information, wrongful refusal to provide information, providing incomplete information, failure to inform on extension of the term of consideration of the request, postponing consideration of the request, except the cases specified by this Law, entails a fine on officials from twenty-five to fifty non-taxable minimum incomes”.
- in connection with this, Chapters Third – Seventh to be considered as Chapters Fourth – Eights accordingly;
- in the first paragraph of Chapter Eighth the words "First – Sixth" shall be substituted with the words "First – Seventh";
2) in the Law of Ukraine "On National Archive Fund and Archive Institutions" (Bulletin of Verkhovna Rada of Ukraine, 2002, № 11, Article 81; 2007, № 10, Article 91; 2013, № 28, Article 302; 2014, № 5, Article 62, № 12, Article 178, № 22, Article 816):
Article 2 shall be supplemented with Chapter Three of the following content:
“Access to archival information of repressive agencies is established by Law of Ukraine "On Access to Archives of Repressive Agencies of the Communist Totalitarian Regime of 1917-1991’”;
Article 8 after Chapter Fourth shall be supplemented with the new Chapter of the following content:
"Archival documents (archival information media) of repressive agencies belong to the state and shall be transferred for keeping to the Sectoral State Archive of the Ukrainian Institute of National Memory”.
In connection with this, Chapters Fifth – Seventh shall be considered as Chapters Sixth – Eighth accordingly;
Article 15 shall be supplemented with Chapter Eight of the following content:
"Special characteristics of access to archival information of repressive agencies are determined by the Law of Ukraine "On Access to Archives of Repressive Agencies of the Communist Totalitarian Regime of 1917-1991";
Article 16 after Chapter Fourth shall be supplemented with the new chapter of the following content:
"Special characteristics of access to archival information of repressive agencies are determined by the Law of Ukraine "On Access to Archives of Repressive Agencies of the Communist Totalitarian Regime of 1917-1991".
In connection with this, Chapter Fifth shall be considered as Chapter Sixth; Chapter First of Article 19 shall be supplemented with the words and numbers “with consideration of special characteristics, determined by the Law of Ukraine "On Access to Archives of Repressive Agencies of the Communist Totalitarian Regime of 1917-1991";
3) Article 25 of the Law of Ukraine "On Personal Data Protection" (Bulletin of Verkhovna Rada of Ukraine, 2010, № 34, Article 481; 2014, № 14, Article 252) shall be supplemented with Chapter Third of the following content:
“3. This Law does not apply to relations as to obtaining the archival information of repressive agencies”;
4) Exclude Clause 15 of the Resolution of the Verkhovna Rada of Ukraine "On the Interpretation of the Law of Ukraine 'On the Rehabilitation of Victims of Political Repression in Ukraine'" (Bulletin of Verkhovna Rada of Ukraine, 1994, № 15, Article 88).
4. State authorities, authorities of the Autonomous Republic of Crimea, local governments, and enterprises, institutions and organizations that are in their jurisdiction or are under their control, must conduct an audit and report to the Ukrainian Institute of National Memory about the availability of archival information of repressive agencies during one year from the date of entry into force of this Law.
5. The Cabinet of Ministers of Ukraine, the Prosecutor General of Ukraine, the Security Service of Ukraine, the State Judicial Administration of Ukraine, the Foreign Intelligence Service of Ukraine, the Ministry of Internal Affairs of Ukraine, the Ministry of Defence of Ukraine, the State Penitentiary Service of Ukraine, the State Border Service of Ukraine, the State Archival Service of Ukraine, other state bodies, the authorities of the Autonomous Republic of Crimea, local authorities shall bring their regulations into conformity with this Law within six months from the date of entry into force of this Law.
After the expiration of the term, the provisions of legal acts of the bodies, which contradict to this Law, cease to be in force.
6. The Cabinet of Ministers of Ukraine shall:
- within three months from the date of entry into force of this Law approve the resolution on the establishment of the SSA UINM and provide it with property portfolio for placement of archive institution and archival storage facility;
- during the drafting of the Law on Amendments to the Law of Ukraine "On the State Budget of Ukraine for 2015", provide for budget allocations for the maintenance of the SSA UINM;
- instruct the ministries and other central executive authorities to conduct an audit of archival information media of repressive agencies and organize the transfer of archive funds to the newly established SSA UINM within two years from the date of entry into force of this Law.
7. The Ministry of Internal Affairs of Ukraine, the Ministry of Defence of Ukraine, the Ministry of Justice of Ukraine, the Security Service of Ukraine, the Foreign Intelligence Service of Ukraine, the General Prosecutor of Ukraine, the State Judicial Administration of Ukraine, the State Penitentiary Service of Ukraine, the State Border Service of Ukraine shall transfer to the SSA UINM the archival information media for 1917 -1991 within two years from the date of entry into force of this Law.
8. The Ministry of Justice of Ukraine within three months from the date of entry into force of this Law shall bring in accordance with this Law the procedure of using the documents of National Archival Fund, owned by state or territorial communities, in terms of using archival information of repressive agencies.
9. The Ukrainian Institute of National Memory shall:
- together with the Ministry of Justice of Ukraine adopt provisions on the SSA UINM;
- appoint the head of the SSA UINM, concluding with it a fixed-term contract for five years;
- ensure the establishment inter-archive register of the persons referred to in Article 9 of the Law, who have limited the access to information about themselves.
President of Ukraine P. Poroshenko
Kyiv,
April 9, 2015
№ 316-VІІІ.
Переклад здійснений за фінансової підтримки Посольства Швейцарії в Україні.