DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE

of October 30, 1997 No. 5-zp

On the case of official interpretation of Articles 3, 23, 31, 47, 48 Laws of Ukraine "About information" and articles 12 of the Law of Ukraine "About prosecutor's office" (K. G. Ustimenko's case)

Case No. 18/203-97

NAME OF UKRAINE

Constitutional court of Ukraine as a part of judges of the Constitutional Court of Ukraine:

Timchenk Ivan Artemyevich - the chairman,

Voznyuk Vladimir Denisovich,

Kozyubra Nikolay Ivanovich,

Kostitsky Mikhail Vasilyevich,

Malinnikova Lyudmila Fiodorovna,

Martynenk Pyotr Fedorovich,

Mironenk Alexander Nikolaevich,

Nemchenk Vasily Ivanovich,

Rozenk Vitaly Ivanovich,

Owlet Nikolay Dmitriyevich,

Selivon Nikolay Fedosovich,

Victor Egorovich's buffoons,

Silent Vladimir Pavlovich,

Chubar Lyudmila Panteleevna,

Yatsenk Stanislav Sergeyevich,

being guided by article 150 of the Constitution of Ukraine, Articles 43, of 51 Law of Ukraine "About the Constitutional Court of Ukraine", considered at plenary meeting in written hearing case on official interpretation of Articles 3, of 23, of 31, of 47, 48 Laws of Ukraine "About information" of October 2, 1992 (Sheets of the Verkhovna Rada of Ukraine, 1992, N 48, the Art. 650) and article 12 of the Law of Ukraine "About prosecutor's office" of November 5, 1991 (Sheets of the Verkhovna Rada of Ukraine, 1991, N 53, the Art. 793).

The constitutional implementation is open the resolution of Board of judges of the Constitutional Court of Ukraine according to the constitutional addresses according to articles 46 and 49 of the Law of Ukraine "About the Constitutional Court of Ukraine" in connection with the constitutional address of Ustimenko Konstantin Grigoryevich.

Availability of ambiguous use of the specified provisions of the law of Ukraine "About information" and the Law of Ukraine "About prosecutor's office" courts of law became the basis for consideration of the case according to article 94 of the Law of Ukraine "About the Constitutional Court of Ukraine" that led to violation of constitutional rights and freedoms of the citizen of Ukraine.

Follows from the documents sent to the Constitutional Court of Ukraine, and written statements of K. G. Ustimenko that in 1988-1990 according to the petition of administration of the Dnipropetrovsk railway technical school he stayed on the advisory psychiatric registry of the Dnipropetrovsk city psychoneurological dispensary. The applicant who knew of such fact in July, 1990, considers: that it limited possibilities of its employment and caused it moral and material damage. For the purpose of their compensation in civil and procedural procedure he saw the chief physician of dispensary with the requirement of provision of information on questions:

- whom when and on its what bases was registered;

- to whom certificates of its stay on accounting were issued;

- whom when and on its what bases it was struck off the register;

- whether actions of psychiatrists for restriction of its employment in 1988-1990 and who bears responsibility for the caused material damage are legal.

The chief physician, referring to medical secret, refused provision of such information. With respect thereto within nearly seven years K. G. Ustimenko's case repeatedly and ambiguously was considered by courts of law of different link. With the last decisions of the courts of the requirement of the applicant it was satisfied partially: he received the copy of the dispensary card and some other information which, however, did not satisfy it.

On November 27, 1992 based on article 37 of the Law of Ukraine "About information" the deputy prosecutor of the Dnipropetrovsk region without refining of motives refused to K. G. Ustimenk provision of available certificates on the state of health of the applicant in prosecutor's office. K. G. Ustimenko's claims to the specified actions of the official of prosecutor's office by courts of law, including also the Supreme Court of Ukraine, during 1993-1996 deviated based on article 12 of the Law of Ukraine "About prosecutor's office".

In view of told above, the person of law on the constitutional address asks to give official interpretation of Articles 3, of 23, of 31, of 47, 48 Laws of Ukraine "About information" and articles 12 of the Law of Ukraine "About prosecutor's office".

Having heard the judge-speaker Mironenko V. G. and having studied essence of the petition of K. G. Ustimenko, the documents attached to it, materials sent by the Chairman of the Verkhovna Rada of Ukraine, the Attorney-General of Ukraine, the relevant ministries, conclusions of specialists psychiatrists, international conventions, declarations, regulations on human rights to information, to appeal to the court in general and legal protection of the rights mentally sick in particular the Constitutional Court of Ukraine established:

1. Constitutional rights of man and citizen in Ukraine on information, its free obtaining, use, distribution and storage in the amounts necessary for realization by everyone of the rights, freedoms and legitimate interests, are fixed and guaranteed by the current legislation of the state. The normative basis of information legal relationship in the state is determined in articles 32 and 34 of the Constitution of Ukraine, the laws of October 2, 1992 "About information", of November 16, 1992 "About printing mass media (press) in Ukraine", of December 21, 1993 "About television and broadcasting", and also in Articles 7, 440 and 440-1 Civil codes, articles 125 and 126 of the Criminal code of Ukraine directed to protection of honor, advantage and goodwill of person owing to distribution of inveracious information, compensation of the material and moral harm done by collection, storage, use and disclosure of information about person.

2. At the same time the analysis of legal practice, materials of the constitutional address gives the grounds to state availability in regulatory framework regarding information legal relationship indistinctly certain, conflict provisions and gaps that negatively influences providing constitutional rights and freedoms of man and citizen.

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