The draft law on limiting the disclosure of certain information in the texts of court decisions: what consequences does it foresee

Today, the Verkhovna Rada of Ukraine adopted in the first reading draft law No. 7033-d on restrictions on the disclosure of certain information in the texts of court decisions. It caused a very wide resonance in society and the legal community, therefore IA “FACT” asked the lawyers of the “Repeshko and partners” bar association to comment on it and tell about the consequences in case of acceptance.

Please tell us what is proposed in this legislative initiative and what the consequences will be if it is passed in the second reading?

The draft law proposes, for the duration of martial law, to limit general access to court decisions in criminal proceedings against those involved in criminal offenses against the foundations of national security, in the field of state secret protection, the inviolability of state borders, ensuring conscription and mobilization, or against the established order of military service. It also gives judges the right, at their own discretion, to remove from court decisions information that, according to their assessment, could harm the security of cases considered in open court.

In addition, the draft law proposes to limit the publication in court decisions of data on military units, military universities, organizations from the defense-industrial complex, etc. It is proposed to open general and full access to decisions on the seizure of property, permission to search a house, to conduct an undercover investigative (search) action one year after such decisions are entered in the register.

In the conditions of military operations and the rapidly changing situation, it is more important than ever to receive timely and timely information about many aspects of life, the current situation in the country, especially issues related to military operations, mobilization and protection of the rights and interests of citizens, taking into account the state of war. Article 15 of the Constitution of Ukraine states that censorship is prohibited in our country. In turn, the Law of Ukraine “On Information” notes that there is information with limited access, there is confidential, secret and official information. That is, not all information may be available to the general public.

Since the middle of 2006, a very convenient and necessary functionality for citizens has been operating in Ukraine – the Unified State Register of Court Decisions. It is an automated system for collecting, storing, protecting, accounting, searching and providing electronic copies of court decisions. Therefore, all decisions of all courts of Ukraine in civil, administrative, economic cases, cases of administrative offenses and criminal proceedings are entered into the Unified State Register of Court Decisions. This system is very convenient and useful precisely because, upon Internet request, any user can get acquainted with the court decision regarding himself, or determine the judicial practice in the category of cases that is of interest at the moment.

The register is actively used not only by citizens, but also by professional lawyers – judges, prosecutors, lawyers. Decisions in cases are entered into the register by judges immediately after their adoption, but are accessible to ordinary users a few days later. Invaluable opportunities from the practical side enabled human rights defenders to follow the practice of courts in certain categories of cases, even following the practice of a specific court in making a decision in a certain category of cases. All this makes it possible to speak not only about the transparency of the justice system, but also about the availability of legal aid for ordinary citizens, because after studying a certain number of court decisions on a specific category of cases, it is possible to independently determine the defense algorithm or decide on the collection of necessary evidence.

Using the Unified State Register of Court Decisions has become commonplace, and lawyers are no longer surprised when one of their clients says: – “But in the register of court decisions, I saw a decision that….” But now, in connection with military actions on the territory of Ukraine, the state has begun to limit freedom of speech and close some information. Now information on the losses of the Armed Forces of Ukraine, both in equipment and in personnel, is a state secret.

The authorities did not stop there. According to the adopted draft law, the following may not be disclosed in the texts of court decisions open to public access:

“6) names of military administration bodies, units and military units;

7) addresses of locations (actual location address, legal address) and names of higher educational institutions and military educational units of higher education institutions that are under the management of the Ministry of Defense of Ukraine, the Security Service of Ukraine, the Foreign Intelligence Service of Ukraine, the State Special Communications Service and information protection of Ukraine;

8) addresses of locations (actual location address, legal address) and names of entities that are part of the State Concern “Ukroboronprom”;

9) addresses of locations (actual location address, legal address) and names of critical infrastructure facilities;

10) addresses of locations (actual location address, legal address) and names of state-owned objects of strategic importance for the economy and security of the state.”

The point about critical infrastructure objects raises a lot of questions. In the conditions of martial law, they may include objects that were not previously considered to be such objects. Yes, there is currently a resolution of the Cabinet of Ministers dated 16.12.22 No. 1384, which defines the Procedure for classifying objects as critical infrastructure. The list of objects in this resolution is simply endless and covers many areas and enterprises – from those that take care of heating to those that provide palliative medical care. For example, critical infrastructure sectors include: planning, execution and monitoring of budget execution, production of fertilizers or nitrogenous compounds, administration of justice, provision of non-banking financial services, provision of non-banking financial services, electoral process, etc. This is a huge number of enterprises and institutions, and information about their participation in legal proceedings is planned to be closed by this draft law. At the same time, the information will be closed in any process – whether a citizen is suing for illegal dismissal, or an official of the body is being held criminally liable, or the company is personally trying to defend its rights and return illegally seized land.

Also, according to the draft law, during the legal regime of martial law on the territory of Ukraine, for security reasons, general access to court decisions in criminal proceedings against persons who are suspected or accused of committing criminal offenses of ensuring conscription and mobilization or against the established order of military service is ensured through one a year after the day of the end (cancellation) of martial law. That is, it is planned to close all decisions in criminal cases for the listed offenses in the registry, and these are not only verdicts in cases, including taking into account the passage of all instances, but also decisions of investigative judges.

Another innovation is that if the court proceedings took place in an open court session, but the disclosure of certain information in the opinion of the court may harm security, the court has the right, when sending a decision to the Register, to determine the relevant information as not subject to disclosure (publication). What should be noted in this case is that, first of all, everything is left to the personal conviction of the particular judge presiding over the case. Secondly, although the draft law contains an approximate list of information that a judge can determine as non-disclosureable (for example, information that can contribute to the identification of the addresses of locations (dislocations) of military administration bodies, part of the defense-industrial complex of Ukraine; information , which can contribute to the identification of the processes of development, production, modernization of military products), but this list is not exclusive, it has, let’s say, a recommended character. At the same time, many things are left to the discretion of the judge himself, and he will decide which information to exclude from the register and which not.

The project also provides that, for reasons of national security, the State Judicial Administration of Ukraine, within thirty days from the date of entry into force of the Law of Ukraine “On Amendments to Certain Laws of Ukraine on Preventing the Disclosure of Certain Information in the Texts of Court Decisions”, must ensure the restriction of general access to court decisions in criminal cases proceedings against persons who are suspected or accused of committing criminal offenses related to the provision of conscription and mobilization or against the established order of military service, which are entered in the Unified State Register of Court Decisions during martial law. General access to such court decisions is restored one year after the termination (cancellation) of martial law imposed on the territory of Ukraine.

It should be emphasized that the mentioned changes are made against the background of changes to the mobilization legislation, which took place earlier regarding the strengthening of responsibility for administrative offenses in this area, which will be followed by criminal responsibility in the future.

According to project changes, access (general and full) to decisions on seizure of property and temporary access to things and documents, on refusal to grant a request for seizure of property and temporary access to things and documents, on permission to search a person’s home or other possessions, on refusal in granting a request for a search of a person’s home or other property, for permission to conduct an undercover investigative (search) action, or for refusing to grant a request for conducting an undercover investigative (search) action in criminal proceedings, is ensured one year after the entry of such decisions into the Register.

Thus, these resolutions are completely closed for access, which will lead to the creation of a police state, because these resolutions provide for a very large range of basic rights and freedoms of both citizens and legal entities. It is no secret to anyone that investigative bodies even in the best of times of peace worked with significant violations of procedural legislation. By closing access to court decisions of the listed category, the legislator opens a wide field for abuse and arbitrariness in criminal cases, which will lead to violation of the basic rights and freedoms of citizens guaranteed by the Constitution of Ukraine.

The main principle of judicial proceedings is the openness of the process. The draft law does not say anything about how the closure of information will take place in a procedural sense. Usually, any procedural decision on a case is made by a court decision. At the same time, the court decision must be substantiated and subject to appeal both separately and as part of the final court decision on the case. There is no provision for defining the relevant information as non-disclosure (publication) due to a court order, and therefore the judge may not be “blindsided” in his actions at all. If, in the opinion of the court, the disclosure of certain information may harm the interests of national security, the announcement of this relevant information must take place in a closed court session, which is already provided for by the norms of the current legislation.

Perhaps, somewhere in a developed country, such as Germany or Canada, the mentioned legislative changes would not cause such a resonance, but unfortunately in Ukraine it can have catastrophic consequences.

There have already been rare cases when it was from open sources that journalists or human rights organizations and conscientious citizens received information about abuses or corrupt practices of some bodies and persons, including officials. By closing a certain category of information in the Unified State Register of Court Decisions, the state will undermine its authority in the eyes of citizens, because the functioning of the register was a step towards European integration and the transparency of the functioning of one of the three branches of government, namely the judiciary.

Therefore, if this draft law is adopted in the second reading, cases that are of great public interest and create quite a stir in society will be closed. This will hinder the monitoring of court decisions by the public and human rights defenders. In addition, the rule that closed information will remain closed for another year after the abolition of martial law in peacetime is surprising. All this will cause even greater social tension in society, especially against the background of active mobilization measures in the country.