Court ruling on the recognition of the actions of the Head of the State Department of Ukraine for the Execution of Punishments, V. V. Koshchynets, as illegal.

DONETSK DISTRICT ADMINISTRATIVE COURT
RULING IN THE NAME OF UKRAINE
10 June 2008
The Donetsk District Administrative Court, consisting of:
Presiding Judge O. O. Koshkosh
Judges V. P. Yurchenko, O. O. Halatina
Secretary T. V. Humurzhy
with the participation of
the Plaintiff’s representative O. P. Bukalov
the Defendant’s representative H. O. Merti
having considered in an open court session at the court premises located at: 83062, Donetsk, I. Tkachenka St., 140 a, an administrative case based on the claim of the Head of the Donetsk City Organisation “Donetsk Memorial”, Oleksandr Pavlovych Bukalov, against the Head of the State Department of Ukraine for the Execution of Punishments, Vasyl Vasylovych Koshchynets, regarding the recognition of actions as illegal and the recovery of moral damages, —
THE COURT HAS ESTABLISHED:
The Head of the Donetsk City Organisation “Donetsk Memorial”, Oleksandr Pavlovych Bukalov, filed a lawsuit against the Head of the State Department of Ukraine for the Execution of Punishments, Vasyl Vasylovych Koshchynets, regarding the recognition of actions as illegal and the recovery of moral damages.
He substantiates his claims by stating that the plaintiff, as head of the board of the “Donetsk Memorial” organisation, sent a letter, No. 183 dated 26 November 2007, containing an information request to the Head of the State Department for the Execution of Punishments, with a request to provide information regarding the calculations of mortality and tuberculosis morbidity rates in institutions of the Department for the Execution of Punishments. The information request was sent in accordance with Article 40 of the Constitution of Ukraine and Articles 29, 32, and 33 of the Law of Ukraine “On Information”. Due to the fact that the plaintiff did not receive any response for two months, he contacted the Head of the State Department for the Execution of Punishments again with letter No. 17 dated 23 January 2008, in which he noted the lack of a response and insistently requested the provided information. In the received response, No. 12/233 dated 6 February 2008, signed by the Head of the Administration S. B. Zhyvaho, it is stated that “when calculating mortality and tuberculosis morbidity rates, we use methodologies recommended by the Department of Social Hygiene...”, which means that a response addressing the substance of the questions is absent. The plaintiff contacted the Department for the third time, sending letter No. 26 on 16 February 2008, but received no response.
He believes that the defendant’s actions violate the plaintiff’s constitutional right to receive information, which caused the plaintiff moral damage, which he estimates at 2,300 UAH.
By the decision of the Donetsk District Administrative Court dated 22 April 2008, the original plaintiff, Oleksandr Pavlovych Bukalov, was replaced by the proper plaintiff, the Head of the Donetsk City Organisation “Donetsk Memorial”, Oleksandr Pavlovych Bukalov.
In the court session, the plaintiff changed his claims and asked to recognise the actions as illegal and recover moral damages, providing explanations similar to those set out in the claim.
The defendant’s representative objected to the lawsuit, justifying this by stating that the plaintiff filed a lawsuit against the Head of the Department as an official, while violating Article 7 of the Law of Ukraine “On Information” and Article 106 of the Code of Administrative Judiciary of Ukraine. Thus, in accordance with Article 7 of the Law of Ukraine “On Information”, the subjects of information relations are citizens of Ukraine, legal entities, and the state. Officials (the Head of the Department) are not included among these subjects. By filing a lawsuit against an official (the Head of the Department) and not against a legal entity, O. P. Bukalov, in accordance with Article 106 of the CAJU, did not substantiate in what way the specific official violated the law. It is unclear from the statement of claim what information (elements or components of this information) the plaintiff requested and which the Department did not provide, and why the plaintiff believes that the Department did not provide the relevant information.
Regarding the plaintiff’s requests No. 17 dated 23 January 2008 and No. 183 dated 26 November 2007 concerning the methodology for calculating mortality and tuberculosis morbidity rates of convicts, the Department reported that for these calculations, a methodology recommended by the Department of Social Hygiene and Healthcare Organisation of medical universities and academies of postgraduate medical education is used. The information requested by O. P. Bukalov does not belong to the types of information provided for in Article 18 of the Law “On Information”; in particular, it is not a request for any quantitative data. The Department’s response is a reflection of the understanding of the questions posed in the plaintiff’s request, which does not contradict the requirements of the Law of Ukraine “On Information”.
Later, realising the plaintiff’s need for the specified information in a more expanded format, the Department sent him letter No. 12/1284/Il. dated 14 March 2008, setting out the calculation methodology in more detail.
She requested the court to dismiss the lawsuit in its entirety.
Having heard the explanations of the plaintiff and the defendant’s representative, and having examined the case materials, the court concludes that the claims are partially justified and are subject to partial satisfaction for the following reasons.
In accordance with Paragraph 3, Article 2 of the Code of Administrative Judiciary of Ukraine, in cases concerning the appeal of decisions, actions, or omissions of subjects of authority, administrative courts verify whether they were adopted (committed):
1) on the basis, within the limits of authority, and in a manner provided for by the Constitution and laws of Ukraine;
2) using the authority for the purpose for which it was granted;
3) reasonably, that is, taking into account all circumstances relevant to the decision (action);
4) impartially (without prejudice);
5) in good faith;
6) reasonably;

7) in compliance with the principle of equality before the law, preventing unfair discrimination;
8) proportionately, in particular, in compliance with the necessary balance between any adverse consequences for the rights, freedoms, and interests of the individual and the objectives aimed at by this decision (action);
9) taking into account the person’s right to participate in the decision-making process;
10) in a timely manner, that is, within a reasonable period.
In accordance with Part 1, Article 9 of the said Code, when resolving a case, the court is guided by the principle of legality, according to which state authorities, local self-government bodies, their officials, and civil servants are obliged to act only on the basis, within the limits of authority, and in the manner provided for by the Constitution and laws of Ukraine.
In accordance with the requirements of Part 2, Article 19 of the Constitution of Ukraine, state authorities and local self-government bodies, and their officials are obliged to act only on the basis, within the limits of authority, and in the manner provided for by the Constitution and laws of Ukraine.
The court has established that the Head of the Donetsk City Organisation “Donetsk Memorial”, Oleksandr Pavlovych Bukalov, addressed the Head of the State Department for the Execution of Punishments via letter No. 183 dated 26 November 2007, with an information request to provide information regarding the calculations of mortality and tuberculosis morbidity rates in institutions of the Department for the Execution of Punishments.
The Head of the Donetsk City Organisation “Donetsk Memorial”, Oleksandr Pavlovych Bukalov, addressed the Head of the State Department for the Execution of Punishments via letter No. 17 dated 23 January 2008, in which he noted the fact of not receiving a response to the information requested in letter No. 183 dated 26 November 2007.
On 6 February 2008, a response No. 12/233 was sent, signed by the Head of the Health Department of the State Department for the Execution of Punishments, S. B. Zhyvaho, regarding letters No. 183 dated 26 November 2007 and No. 17 dated 23 January 2008.
These circumstances were acknowledged by the parties during the consideration of the case; therefore, in accordance with Part 3, Article 72 of the CAJU, they do not require proof before the court.
The court considers such actions of the defendant to be illegal and not in accordance with the requirements of the current legislation of Ukraine for the following reasons.
In accordance with Part 2, Article 71 of the CAJU, in administrative cases regarding the illegality of decisions, actions, or omissions of a subject of authority, the burden of proving the legality of their decision, action, or omission lies with the defendant if they object to the administrative claim.
In the plaintiff’s opinion, the aforementioned appeals to the Head of the State Department for the Execution of Punishments are subject to consideration in accordance with the procedure established by the Law of Ukraine “On Information” dated 2 October 1992, No. 2657-XII, which establishes general legal foundations for the receipt, use, distribution, and storage of information, secures the right of an individual to information in all spheres of public and state life of Ukraine, as well as the system of information, its sources, defines the status of participants in information relations, regulates access to information and ensures its protection, and protects the individual and society from false information.
However, the defendant believes that the information requested by O. P. Bukalov does not belong to the types of information provided for in Article 18 of the Law “On Information”; in particular, it is not a request for any quantitative data.
The defendant’s reference to the non-compliance of the requested information with Article 18 of the Law of Ukraine “On Information” is unfounded, because in accordance with Article 18 of the Law of Ukraine “On Information”, the main types of information are:
statistical information;
administrative information (data);
mass information;
information about the activities of state authorities and local and regional self-government bodies;
legal information;
information about an individual;
information of a reference/encyclopaedic nature; sociological information.
It is known from the case materials that the subject of request No. 183 dated 26 November 2007 is the provision of information regarding the calculations of mortality and tuberculosis morbidity rates in institutions of the Department for the Execution of Punishments; that is, the subject of the request falls under the definition of “sociological information”, which provides for documented or publicly announced information about the attitude of individual citizens and social groups to social events and phenomena, processes, and facts. The main sources of sociological information are documented or publicly announced data in which the results of sociological surveys, observations, and other sociological studies are reflected. Sociological studies are carried out by state bodies and associations of citizens registered in the established manner.
From the above, it follows that letters No. 183 dated 26 November 2007 and No. 17 dated 23 January 2008 are appeals with a request to provide written or oral information about the activities of the legislative, executive, and judicial authorities of Ukraine and their officials on specific issues, in connection with which the Law of Ukraine “On Information” applies to the consideration of the aforementioned appeals.
The Law of Ukraine “On Information”, namely Articles 43 and 44, establishes the rights and obligations of participants in information relations, who, in particular, have the right to receive (produce, extract), use, distribute, and store information, and are obliged to ensure access to information for all consumers on the terms provided for by law or agreement, to ensure compliance with the principles of information relations provided for by Article 5 of this Law, namely the guarantee of the right to information, openness, accessibility of information and freedom of its exchange, objectivity, reliability of information, completeness and accuracy of information, and the legality of receipt, use, distribution, and storage of information.
As is known from the case materials, the plaintiff addressed the defendant with an information request in accordance with Article 32 of the Law of Ukraine “On Information”, which establishes that an information request regarding access to official documents in this Law is understood as an appeal with a demand to provide the opportunity to review official documents. The request may be individual or collective. It is submitted in writing.
A citizen has the right to appeal to state authorities and demand the provision of any official document, regardless of whether this document concerns him personally or not, except in cases of limited access provided for by this Law.
Citizens of Ukraine, state bodies, organisations, and associations of citizens (hereinafter - requesters) submit a request to the relevant body of legislative, executive, or judicial authority, or its officials.
The legislative, executive, and judicial authorities of Ukraine and their officials are obliged to provide information relating to their activities in writing, orally, by telephone, or by using public speeches of their officials.
In accordance with Article 33 of the Law of Ukraine “On Information”, the period for studying a request regarding the possibility of its satisfaction must not exceed ten calendar days.
Within the specified period, the state institution notifies the requester in writing that his request will be satisfied or that the requested document is not subject to provision for review.
The satisfaction of the request is carried out within a month, unless otherwise provided by law. A similar review period is established for a request for the provision of written information.
It is known from the case materials that the response to the plaintiff’s requests No. 183 dated 26 November 2007 and No. 17 dated 23 January 2008 was provided by the defendant on 6 February 2008 under No. 12/233, that is, in violation of the deadlines established by Article 33 of the said Law.
The court proceeds from the fact that the constitutional principles on which the exercise of human and civil rights and freedoms in Ukraine is based, including the right to receive information provided for by Article 40 of the Constitution of Ukraine, which establishes the right to send individual or collective written appeals or to personally appeal to state authorities, local self-government bodies, and officials of these bodies, who are obliged to consider the appeal and provide a reasoned response within the period established by law.
A legal guarantee of the state’s provision of this right is the fulfilment of the obligations assumed, based on the provisions of the principle of the rule of law, enshrined both by Article 8 of the Constitution of Ukraine and by Article 8 of the Code of Administrative Judiciary of Ukraine.
The defendant did not take actions to provide a timely response to the requested information, the obligation to provide which is established by Articles 9, 10, and 44 of the Law of Ukraine “On Information”; that is, the request to recognise the defendant’s actions as illegal is subject to satisfaction.
Regarding the plaintiff’s claims for the recovery of moral damages in the amount of 2,300 UAH, the following should be noted.
Moral damage should be understood as non-pecuniary losses resulting from moral or physical suffering, or other negative phenomena caused to an individual or legal entity by the illegal actions or omissions of other persons.
In accordance with the Ruling of the Plenum of the Supreme Court of Ukraine “On judicial practice in cases of compensation for moral (non-pecuniary) damage” with changes and additions made by the ruling of the Plenum of the Supreme Court of Ukraine dated 25 May 2001, No. 5, moral damage can consist, in particular: in the degradation of honour, dignity, prestige, or business reputation, moral distress in connection with health damage, in the violation of property rights (including intellectual), rights granted to consumers, other civil rights, in connection with illegal detention under investigation and trial, in the disruption of normal life connections due to the impossibility of continuing active social life, violation of relationships with surrounding people, upon the occurrence of other negative consequences.
The plaintiff must specify what this damage consists of, by what illegal actions or omissions it was caused to the plaintiff, on what considerations he based his determination of the amount of damage, and by what evidence this is confirmed.
Thus, the plaintiff did not provide proper evidence confirming the causation of moral damage to him; therefore, the court concludes that the claims for the recovery of moral damages in the amount of 2,300 UAH are not subject to satisfaction.
Considering the above and taking into account Paragraph 3, Article 2, and Article 9 of the Code of Administrative Judiciary of Ukraine, the court believes that the defendant did not act on the basis, within the limits of authority, and in the manner provided for by the Constitution and laws of Ukraine; using the granted authority; reasonably, that is, taking into account all circumstances relevant to the decision; impartially (without prejudice) and in good faith.
Taking into account all the stated circumstances in their totality, the court has concluded that the claims are subject to partial satisfaction.
On the basis of the above, guided by Articles 8–11, 94, and 158–163 of the Code of Administrative Judiciary of Ukraine, the court -
HAS RULED:
The claim of the Head of the Donetsk City Organisation “Donetsk Memorial”, Oleksandr Pavlovych Bukalov, against the Head of the State Department of Ukraine for the Execution of Punishments, Vasyl Vasylovych Koshchynets, regarding the recognition of actions as illegal and the recovery of moral damages – is to be partially satisfied.
To recognise as illegal the actions of the Head of the State Department of Ukraine for the Execution of Punishments, Vasyl Vasylovych Koshchynets, regarding the untimely provision of a response to the Head of the Donetsk City Organisation “Donetsk Memorial”, Oleksandr Pavlovych Bukalov, to the appeals dated 26 November 2007 (No. 183) and 23 January 2008 (No. 17).
In the remaining part of the claim – to refuse.
The ruling was delivered in the deliberation room and its introductory and operative parts were announced in the court session on 10 June 2008 in the presence of representatives of the parties. The ruling was prepared in full on 13 June 2008.
The ruling may be appealed in the appellate order to the Donetsk Appellate Administrative Court through the court of first instance by filing, within a 10-day period from the day of the announcement of the ruling, a statement of appeal and submitting thereafter, within 20 days, an appeal brief, with a copy submitted to the appellate instance or in the order of Part 5, Article 186 of the CAJU.
Presiding Judge O. O. Koshkosh
Copy is correct

ORDER No. 104 dated 24.04.2008

On shortcomings in the work with information requests in the central apparatus of the State Department of Ukraine for the Execution of Punishments and bringing the guilty officials to disciplinary responsibility
An internal investigation conducted has established that on 30 November 2007, an information request from the head of the board of the human rights organisation “Donetsk Memorial”, O. P. Bukalov, dated 26 November 2007, No. 183, concerning the provision of information on how the tuberculosis morbidity rate in institutions for the execution of punishments in 2005 was calculated compared to 2004, was received by the Department of Affairs of the State Department of Ukraine for the Execution of Punishments (hereinafter – the Department). The aforementioned information request was registered under No. 8886.
On 30 November 2007, the consideration of the information request by the Head of the Department was assigned to the Deputy Head of the Department, N. H. Kalashnyk, and the Head of the Health Department of the Department, Colonel of Internal Service S. B. Zhyvaho. On 4 December 2007, N. H. Kalashnyk instructed to prepare an information request for publication on the Department’s website and to provide an explanation to the author of the information request, the head of the Public Council of the Department, I. V. Shtanko. On 5 December 2007, the Head of the Health Department, S. B. Zhyvaho, instructed the Deputy Head of the Administration–Head of the Healthcare Organisation Department, Lieutenant Colonel of Internal Service Ye. V. Khanyukov, and the Head of the Sanitary and Epidemiological Department of this administration, Colonel of Internal Service N. H. Kozhan, to prepare a response. On 6 December 2007, the Deputy Head of the Health Department, Ye. V. Khanyukov, instructed the Deputy Head of the Healthcare Organisation Department, Lieutenant Colonel of Internal Service Yu. O. Kulchynskyi, to participate in the preparation of the response, who, in turn, instructed the Chief Specialist–Doctor of the Healthcare Organisation Department, Lieutenant Colonel of Internal Service V. M. Nikolaenko, to prepare a response to the information request. V. M. Nikolaenko, instead of preparing a reasoned response to the author of the information request on issues belonging to the competence of the Health Department of the Department, submitted a service memo addressed to I. V. Shtanko on 11 December 2007, No. 12/680.
On 20 March 2008, an information request from the head of the board of the human rights organisation “Donetsk Memorial”, O. P. Bukalov, was received by the Department of Affairs of the Department from the Prosecutor General’s Office of Ukraine for proper consideration, provision of a response based on the results of the consideration, and informing the Prosecutor General’s Office of Ukraine, which was registered that same day under No. 2813.
An examination of the available materials showed that the information set out by the applicant regarding the poor-quality consideration of his previous information request and the untimely provision of a response were confirmed, as the response was only sent to O. P. Bukalov on 6 February 2008.
Thus, the Head of the Health Department of the Department, Colonel of Internal Service S. B. Zhyvaho, the Deputy Head of the Administration–Head of the Healthcare Organisation Department of this administration, Lieutenant Colonel of Internal Service Ye. V. Khanyukov, and the Chief Specialist–Doctor of the Healthcare Organisation Department of this administration, Lieutenant Colonel of Internal Service V. M. Nikolaenko, grossly violated the requirements of Articles 32 and 33 of the Law of Ukraine “On Information” and Subparagraph 6.2.2 of Point 6.2 of the Instruction on Record Keeping in bodies and institutions of the execution of punishments, pre-trial detention centres, and educational institutions of the State Penitentiary Service of Ukraine, approved by the Department’s order dated 23 November 2007, No. 305.
Considering the above, and also in order to prevent violations of the requirements of the Law of Ukraine “On Information” and the Instruction on Record Keeping in bodies and institutions of the execution of punishments, pre-trial detention centres, and educational institutions of the State Penitentiary Service of Ukraine, approved by the Department’s order dated 23 November 2007, No. 305, in the central apparatus of the Department,
I HEREBY ORDER:
1. For an irresponsible attitude towards the performance of official duties, which led to the failure to provide a timely response to the information request of O. P. Bukalov, to announce a remark to the Chief Specialist–Doctor of the Healthcare Organisation Department of the Health Department of the Department, Lieutenant Colonel of Internal Service Vadym Mykolayovych Nikolaenko.
2. To strictly warn the Deputy Head of the Administration–Head of the Healthcare Organisation Department of the Department, Lieutenant Colonel of Internal Service Yevhen Vasylovych Khanyukov, that in case of allowing similar instances in work with citizens’ information requests in the future, he will be held disciplinarily accountable.
3. For the failure to ensure proper control over the organisation of the work of subordinate personnel with citizens’ information requests, which led to the failure to provide a response to O. P. Bukalov within the established timeframes, the Head of the Health Department of the Department, Colonel of Internal Service Serhii Borysovych Zhyvaho, deserves to be held disciplinarily accountable, but considering that he was reprimanded by the Department’s order dated 18 December 2007, No. 335, to limit the action taken.
4. The heads of the structural subdivisions of the Department shall ensure proper compliance by subordinate personnel with the requirements of the Law of Ukraine “On Information” and the Department’s order dated 23 November 2007, No. 305.
5. Control over the execution of this order is assigned to the Head of the Personnel Department of the Department, Major General of Internal Service O. V. Shevchuk.
The order shall be announced to the personnel of the central apparatus of the Department.
Head
V. V. Koshchynets

ADMINISTRATIVE CLAIM
To the District Administrative Court of Donetsk Oblast
83000, Donetsk, 140-A Tkachenka St.
From Oleksandr Pavlovych Bukalov
regarding the unlawful failure to provide information
by the Head of the State Department for the
Execution of Punishments, V. V. Koshchynets
04050, Kyiv, 81 Melnykova St.
I, as a citizen and as the head of the board of the “Donetsk Memorial” organisation, sent an information request by letter No. 183 dated 26 November 2007 to the Head of the State Department for the Execution of Punishments with a request to provide information regarding the calculations of mortality and tuberculosis morbidity rates in institutions of the Department for the Execution of Punishments (copy attached). The information request was sent in accordance with Article 40 of the Constitution of Ukraine and Articles 29, 32, and 33 of the Law of Ukraine “On Information”.
Due to the fact that I did not receive any response within two months, which in itself is a violation of the requirements of the Law of Ukraine “On Information”, I contacted the Head of the State Department for the Execution of Punishments again with letter No. 17 dated 23 January 2008, in which I noted the fact that no response was provided to me and insistently requested the provided information (copy attached).
In the received response, No. 12/233 dated 6 February 2008, signed by the Head of the Administration S. B. Zhyvaho, it is stated that “when conducting calculations of mortality and tuberculosis morbidity rates, we use methodologies recommended by the Department of Social Hygiene...”, which means that a response addressing the substance of the questions is absent.
It is important to note that the letter sent is effectively the first response to my first request from 26 November, which is confirmed by the indication on the letter that it is a response to both of my letters. Thereby, the Department confirms the fact of violating the response deadline for my first request. Since the specified letter does not contain the requested information and cannot be considered a substantive response to my request.
I contacted the Department for the third time, sending letter No. 26 on 16 February 2008 both to the head of the agency and to Mr. Zhyvaho, in which I pointed out that “the failure to provide a response violated the requirements of Article 40 of the Constitution of Ukraine, as well as Article 29 of the Law of Ukraine “On Information”, which prohibits the restriction of the right of access to open information, as well as Article 32 of this law, which declares the mandatory provision of information” (copy attached).
I noted that the failure to provide a substantive response also violated Article 33 of this Law, which requires that within 10 days, one must notify in writing of the intention to provide information or refuse to do so, and no later than one month, that is, by the end of December 2007, the head of the Department was obliged to provide a substantive response. Moreover, the failure to provide a response violates the requirements of Article 19 of the Law of Ukraine “On Democratic Civilian Control over the Military Organisation and Law Enforcement Agencies of the State”, which guarantees the possibility of receiving information about the activities of law enforcement agencies.
I emphasised that the fact of not providing a response on the substance of the issues also contains signs of an offence provided for in Paragraph ‘g’, Article 5 of the Law of Ukraine “On Combating Corruption”, which stipulates that “a civil servant or other person authorised to perform the functions of the state has no right to... refuse information to individuals and legal entities, the provision of which is provided for by legal acts, intentionally delay it, or provide inaccurate or incomplete information.”
My proposal to send a response no later than 27 February was again ignored by the head of the Department.
According to Parts 1, 2, and 7 of Article 10 of the Law of Ukraine “On Information”, the right to information is ensured by the obligation of state authorities to inform about their activities and decisions made, and by establishing liability for violations of information legislation.
According to Part 2, Article 32 of the Law of Ukraine “On Information”, a citizen has the right to appeal to state authorities and demand the provision of any official document, regardless of whether this document concerns him personally or not.
The Head of the Department for the Execution of Punishments, without sufficient grounds, limited my right to receive information, which is, moreover, socially important and directly concerns issues of human rights observance in institutions of the penitentiary system. This right of mine is guaranteed by Parts 1 and 2 of Article 34 of the Constitution of Ukraine, Part 1 of Article 9, Parts 1, 2, and 7 of Article 10, and Parts 2 and 3 of Article 32 of the Law of Ukraine “On Information”.
Furthermore, the response was provided to me in violation of the deadlines established by Article 33 of the Law of Ukraine “On Information”.
Thus, my constitutional right to receive information, provided for by Article 40 of the Constitution of Ukraine, has been violated.
Since the violation of the requirements of the Constitution of Ukraine and current legislation on the part of the head of the Department for the Execution of Punishments is not the first time and, in my view, testifies to a disregard for the law, it demeans my dignity, forcing me to obtain any necessary information by appealing to the court, and I am suffering significant moral damage. In order to compensate for these moral losses, I also insist on the recovery of moral damages from the head of the Department in the amount of 2,300 (two thousand three hundred) hryvnias.
Considering the above, on the basis of Articles 34, 55, and 56 of the Constitution of Ukraine, Article 48 of the Law of Ukraine “On Information”, Articles 6, 104, and 162, Point 2 of the Code of Administrative Judiciary of Ukraine, and Articles 302 and 1167 of the Civil Code of Ukraine
I REQUEST
1. To recognise the failure by the head of the State Department for the Execution of Punishments to provide the requested information to me as unlawful.
2. To recognise that the sending of the response to the information request was carried out in violation of the deadlines established by the Law.
3. To oblige the head of the State Department for the Execution of Punishments to provide the requested information according to information request No. 183 dated 26 November 2007 regarding the calculations of mortality and tuberculosis morbidity rates in institutions of the Department for the Execution of Punishments.
4. To recover from the head of the State Department of Ukraine for the Execution of Punishments moral damages in the amount of 2,300 (two thousand three hundred) hryvnias.

Attachments
1. Copy of request No. 183 dated 26 November 2007.
2. Copy of letter No. 17 dated 23 January 2008.
3. Copy of letter No. 26 dated 16 February 2008.
4. Copy of the department’s response No. 12/233 dated 6 February 2008.
5. Copy of the COMPLAINT.
6. Receipt for payment of the duty.
12 March 2008 Oleksandr BUKALOV


Information request of “Donetsk Memorial”

To the Head of the State Department of Ukraine
for the Execution of Punishments, V. V. Koshchynets
No. 183 dated 26 November 2007
Dear Vasyl Vasylovych!
The public human rights organisation “Donetsk Memorial” pays close attention to reports regarding morbidity and mortality in the Department’s institutions. In particular, in a letter to Mr. Ye. Zakharov regarding the presentation of the “Burdock of the Year” award to you, you state:
The mortality rate compared to the same period last year in institutions for the execution of punishments decreased by 7%, and in pre-trial detention centres – by 12%. The tuberculosis morbidity rate in institutions for the execution of punishments decreased by 16.8%, and in pre-trial detention centres – by almost 2%.
In 2005, compared to 2004, the tuberculosis morbidity rate in institutions for the execution of punishments decreased by 14%.
It is obvious that any indicator determined in percentages is the result of the ratio of two absolute values (numbers). Therefore, I am appealing to you with an information request in accordance with Article 40 of the Constitution of Ukraine and Articles 29, 32, and 33 of the Law of Ukraine “On Information” and request you to communicate the following:
1. Please indicate how the mortality rate of 7% in institutions for the execution of punishments mentioned by you was calculated; that is, of which absolute values is it the ratio.
2. Please indicate how the mortality rate of 12% in pre-trial detention centres mentioned by you was calculated; that is, of which absolute values is it the ratio.
3. Please indicate how the tuberculosis morbidity rate of 16.8% in institutions for the execution of punishments mentioned by you was calculated; that is, of which absolute values is it the ratio.
4. Please indicate how the tuberculosis morbidity rate of 2% in pre-trial detention centres mentioned by you was calculated; that is, of which absolute values is it the ratio.
5. Please indicate how the tuberculosis morbidity rate of 14% in institutions for the execution of punishments in 2005 compared to 2004 mentioned by you was calculated; that is, of which absolute values is it the ratio.
I request that the requested information in full be sent within the time limit determined by law to the address:
P.O. Box 4836, Donetsk, 83092, to O. Bukalov.
Head of the board of the human rights
organisation “Donetsk Memorial”
Head of the Penitentiary Society of Ukraine
Oleksandr BUKALOV

FOLLOW-UP letter with information request

To the Head of the State Department of Ukraine
for the Execution of Punishments, V. V. Koshchynets
81 Melnykova St., 04050, Kyiv
Copy for information: To the Minister of Justice of Ukraine, M. V. Onyshchuk.
To the Prosecutor General of Ukraine, O. Medvedko.
No. 17 dated 23 January 2008
Dear Vasyl Vasylovych!
The public human rights organisation “Donetsk Memorial” pays close attention to reports regarding morbidity and mortality in the Department’s institutions. In view of this, an information request was sent to you via letter No. 183 dated 26 November 2007.
This request was sent in accordance with Article 40 of the Constitution of Ukraine and Articles 29, 32, and 33 of the Law of Ukraine “On Information”. In violation of the requirements of the law and the named norm of the Constitution of Ukraine, you did not provide any, not even a negative, response to this request. I remind you that Article 33 of the Law of Ukraine “On Information” requires:
The period for studying a request regarding the possibility of its satisfaction must not exceed ten calendar days.
Within the specified period, the state institution notifies the requester in writing that his request will be satisfied or that the requested document is not subject to provision for review.
The satisfaction of the request is carried out within a month, unless otherwise provided by law.
The underlined legal norm is mandatory for execution. With the passage of almost two months, no response to the indicated request has been received. This fact indicates that your assurances and the assurances of your deputies that responses to letters from citizens and public organisations are provided in a timely manner and in full do not correspond to reality.
In connection with the above and the public importance of the mentioned issues, I again request you to provide a response to my request dated 26 November 2007 in the shortest possible time.
Taking into account repeated instances of failure to provide responses to requests from our organisation, I am forced to state that in the case of an illegal refusal to provide the requested information or the complete failure to provide a response by 6 February 2008, I will be forced to turn to the court again regarding your violation of the requirements of the legislation and the Constitution of Ukraine.
I request that the requested information be sent to the address:
P.O. Box 4836, Donetsk, 83092, to O. Bukalov.
Attachment: Copy of letter No. 183 dated 26 November 2007.
Head of the board of the human rights
organisation “Donetsk Memorial”
Head of the Penitentiary Society of Ukraine
Oleksandr BUKALOV

Letter to S. B. Zhyvaho

To the Head of the Administration of the State Department of Ukraine
for the Execution of Punishments, S. B. ZHYVAHO
81 Melnykova St., 04050, Kyiv
Copy for information: To the Head of the State Department of Ukraine
for the Execution of Punishments, V. V. Koshchynets
To the Prosecutor General of Ukraine
No. 26 dated 16 February 2008

Dear Mr. S. B. Zhyvaho!
I have received your letter No. 12/233 dated 6 February 2008, sent in response to the request of “Donetsk Memorial” sent via letter No. 183 dated 26 November 2007.
Your letter does not contain information and answers to the questions contained in the request; therefore, your letter cannot be considered as providing a response to the substance of the questions.
I draw your attention to the fact that by not providing a response, you violated the requirements of Article 40 of the Constitution of Ukraine, as well as Article 29 of the Law of Ukraine “On Information”, which prohibits the restriction of the right of access to open information, as well as Article 32 of this law, which declares the mandatory provision of information.
You also violated Article 33 of this Law, which requires that within 10 days, one must notify in writing of the intention to provide information or refuse to do so, and no later than one month, that is, by the end of December 2007, you were obliged to provide a substantive response. Moreover, your failure to provide a response violates the requirements of Article 19 of the Law of Ukraine “On Democratic Civilian Control over the Military Organisation and Law Enforcement Agencies of the State”, which guarantees the possibility of receiving information about the activities of law enforcement agencies.
In the fact of your failure to provide a response to the substance of the questions, there are also signs of an offence provided for in Paragraph ‘g’, Article 5 of the Law of Ukraine “On Corruption”, which stipulates that “a civil servant or other person authorised to perform the functions of the state has no right to... refuse information to individuals and legal entities, the provision of which is provided for by legal acts, intentionally delay it, or provide inaccurate or incomplete information.”
The listed violations are quite sufficient for my appeal both to the court and to the prosecutor’s office and the department’s management regarding your failure to comply with the requirements and norms of the Constitution of Ukraine and current legislation.
Furthermore, your actions contradict your verbal assurances that one can contact you regarding issues that fall within your competence, and that you will always provide a substantive and exhaustive response. The content of your letter completely contradicts your assurances.
In view of the above, I request that you, in the shortest possible time, provide a response to the substance of the questions contained in the request dated 26 November 2007. In the event of failure to receive a substantive response, I will be forced to appeal to the court and to other instances provided for by the legislation, with an insistent demand to bring you to justice for violating the norms of the Constitution of Ukraine and current legislation. Given the public importance of the issues of morbidity in the department’s institutions, I reserve the right to widely publicise your reaction to this letter.
I request that the requested information in full be sent no later than 27 February 2008 to the address:
P.O. Box 4836, Donetsk, 83092, to O. Bukalov.
Attachments (for the PGO): Copy of the request and copy of the response dated 6 February 2008.
Head of the board of the human rights
organisation “Donetsk Memorial”
Head of the Penitentiary Society of Ukraine
Oleksandr BUKALOV