Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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Vol.41 N° 76
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Vol. 41, Nº 76 (2023), 641-661
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Criminal protection of state secrets in
Ukraine and EU countries
DOI: https://doi.org/10.46398/cuestpol.4176.38
Vasyl Oliinyk *
Larysa Herasymenko **
Olena Tykhonova ***
Ivan Syvodied ****
Natalia Holdberh *****
Abstract
The aim of the study was to outline the dierences between
certain aspects of the system of state secrets protection in Ukraine
and some countries of the European Union EU, which provides
the basis for determining the directions of improvement of the
national system of state secrets protection. The following general
scientic methods were used in the article: analysis and synthesis,
deduction and induction, analogy. As a result of the research, the
following aspects of criminal protection of state secret in Ukraine and the
EU countries identied for comparison were considered: denition of state
secret, types of information classied as state secret, levels of secrecy, terms
of classication, liability for disclosure of state secret. The methodological
contribution of the study are the recommendations for the improvement
of certain aspects of the system of state secrets protection in Ukraine. It is
concluded that, the direction of future research should also be the disclosure
of features and measures to optimize the procedure of security checks of
persons having access to classied information.
Keywords: protection of state secrets; national security; criminal
liability; secrecy levels; disclosure of classied information.
* PhD of Juridical Sciences, Professor of the Department of Law Enforcement and Anti-Corruption
Activities, Interregional Academy of Personnel Management, 03039, Kyiv, Ukraine. ORCID ID:
https://orcid.org/0000-0002-7582-3568
** PhD of Law Sciences, Head of the Department, Department of Economic Security and Financial
Investigations, National Academy of Internal Aairs, 03035, Kyiv, Ukraine. ORCID ID: https://orcid.
org/0000-0001-6340-1061
*** Doctor of Law Sciences, Professor, Department of Economic Security and Financial Investigations,
National Academy of Internal Aairs, 03035, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-
0002-3848-3023
**** PhD of Juridical Sciences, Associate Professor of the Department of Law Enforcement and Anti-
corruption Activities, Institute of Law Vladimir of the Great Interregional Academy of Personnel
Management, 03039, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0002-2057-9609
***** PhD of Juridical Sciences, Associate Professor of the Department of National Security Educational
and scientic, Institute of Law Vladimir of the Great Interregional Academy of Personnel Management,
03039, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0003-1624-1944
642
Vasyl Oliinyk, Larysa Herasymenko, Olena Tykhonova, Ivan Syvodied y Natalia Holdberh
Criminal protection of state secrets in Ukraine and EU countries
Protección penal de los secretos de Estado en Ucrania
y en los países de la Unión Europea
Resumen
El objetivo del estudio fue esbozar las diferencias entre ciertos aspectos
del sistema de protección de secretos de Estado en Ucrania y algunos países
de la Unión Europea UE, lo que proporciona las bases para determinar
las direcciones de mejora del sistema nacional de protección de secretos
de Estado. En el artículo se utilizaron los siguientes métodos cientícos
generales: análisis y síntesis, deducción e inducción, analogía. Como
resultado de la investigación, se consideraron los siguientes aspectos de la
protección penal del secreto de Estado en Ucrania y los países de la UE
identicados para la comparación: denición de secreto de Estado, tipos de
información clasicada como secreto de Estado, niveles de secreto, términos
de clasicación, responsabilidad por la divulgación del secreto de Estado.
La contribución metodológica del estudio son las recomendaciones para la
mejora de ciertos aspectos del sistema de protección de secretos de Estado
en Ucrania. Se concluye que, la dirección de futuras investigaciones debe
ser también la divulgación de características y medidas para optimizar el
procedimiento de controles de seguridad de las personas que tienen acceso
a información clasicada.
Palabras clave: protección de secretos de Estado; seguridad nacional;
responsabilidad penal; niveles de secreto; divulgación
de información clasicada.
Introduction
State secrets protection is one of the primary tasks for every state,
because the disclosure of information that constitutes a state secret can
seriously harm national security (Denyshchuk, 2019; Tyshchuk and
Syvovol, 2021). However, this problem is particularly acute in the context
of a military conict, as evidenced by the experience of Ukraine after the
full-scale invasion of the Russian Federation into its sovereign territory.
In such conditions, the disclosure of state secrets endangers the lives
of civilians and the military of Ukraine, and may also negatively aect the
further course of the conict for the country as a whole. It follows that the
eective reformation of the state secret protection system of comes to the
fore among the strategic development goals.
Ukraine has launched the reform of the state secret protection system
began before the beginning of the full-scale invasion, as evidenced by the
mention of this direction of state policy in the National Security Strategy of
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CUESTIONES POLÍTICAS
Vol. 41 Nº 76 (2023): 641-661
Ukraine (On the National Security Strategy of Ukraine, 2020). Ukraine’s
course towards integration into the world community, in particular the
European Union (EU) and the North Atlantic Treaty Organization (NATO),
determines the need to take into account the experience and practice of
member countries of these associations in the course of reform (Zub, 2019;
Ponomarenko, 2021; Halushka and Tikhonova, 2021).
Boldyr (2018) examines the reformation of the state secrets protection
system in Ukraine from the perspective of identifying discrepancies between
national traditions and practices of EU and NATO countries, as well as
outlining measures to bring Ukrainian legislation into compliance with the
norms of these associations. The researcher denes the main problematic
issues that must be agreed related to the following aspects:
• granting and refusing permission to carry out activities related to
state secrets for public authorities, local self-government bodies,
enterprises, institutions, organizations;
• the procedure for granting and reissuing a Special Permit to public
authorities, enterprises, institutions, and organizations headed by a
foreign citizen;
• protection of information during execution of contracts or works
related to classied information by non-governmental enterprises;
• approaches to ensuring the functioning of the admission system in
the eld of state secrets;
• the appropriateness of the procedure for approving the “list of
positions that require admission and access to state secrets” at each
enterprise or institution;
• the appropriateness of monetary compensation to persons for work
under classied restrictions.
Vdovenko and Danyk (2019) also nd signicant discrepancies between
the national system of state secret protection and the system of the EU
and NATO countries. Researchers provide a list of specic documents and
individual articles that should be revised. They identify the physical and
moral obsolescence of the state secret protection system as one of the main
threats to Ukraine’s national security.
Serhiychuk (2019) deals with a comparison of the national state secret
protection system and the systems of some other countries, in particular
France, Estonia, and Uzbekistan. The researcher notes the main positive
approaches in the French and Estonian experience, which can be useful
for reforming the Ukrainian state secret protection system. Based on these
approaches, he proposes to implement some changes in the Law of Ukraine
“On State Secrets” and the Criminal Code of Ukraine.
644
Vasyl Oliinyk, Larysa Herasymenko, Olena Tykhonova, Ivan Syvodied y Natalia Holdberh
Criminal protection of state secrets in Ukraine and EU countries
A number of studies also deal with the problems of the Ukrainian state
secret protection system. Kharchenko (2021) outlines aspects of the work
of public authorities, local self-government bodies, enterprises, institutions
and organizations that are engaged in activities related to state secrets,
as well as aspects of organizational control and state policy in this area,
etc. Denyshchuk (2021) identies the current problems of legal protection
of state secrets urged by a number of factors, in particular, the armed
aggression of the Russian Federation (RF) (at the time of writing the
author’s article, a large-scale military invasion had not taken place).
Nehoda (2021) describes measures to prevent crimes in the eld of
state secret protection depending on the levels of crime prevention given
by the researcher. Oliinyk (2020) focuses on a separate direction of
implementation of those measures, in particular, general social measures.
Foreign researchers usually considered the state secret protection
system in the context of the protection of classied information. For
example, Topolewski (2020) studies the historical aspects of the protection
of classied information in Poland, and provides prerequisites for building
an eective protection system. Wądołowski (2022) describes the system of
protection of classied information in Bosnia and Herzegovina, comparing
certain aspects with the Polish system. Topolewski (2020) examines the
protection of classied information in Hungary, mostly focusing on the
growing threats to the security of such information in the context of the
development of the information society.
So, the aim of this study is to identify the dierences between certain
aspects of the state secret protection system in Ukraine and some EU
countries, which will give the grounds for determining the directions for
improving the national state secret protection system. The aim involved the
fullment of the following research objectives:
• study the denition of state secrets in the legislation of Ukraine and
EU countries;
• identify the specics of the denition of types of information
classied as state secrets in the legislation of Ukraine and EU
countries;
• describe the degrees of secrecy and terms of classication established
by the legislation of Ukraine and EU countries;
• compare the responsibility for the disclosure of state secrets
established in the legislation of Ukraine and EU countries.
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CUESTIONES POLÍTICAS
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1. Methodology
1.1. Research procedure
The research covers the study of a number of legislative documents of
the EU countries (Estonia, Latvia, Lithuania, the Czech Republic, Bulgaria
and Poland) and Ukraine, related to the protection of state secrets, as well
as their Criminal Codes. This research direction necessitates consideration
of a large amount of information that cannot be described in detail in one
article. Therefore, the study focused on certain aspects of the specied
legislative documents, in particular: denition of state secret, types of
information classied as state secret, secrecy levels, terms of classication,
responsibility for disclosure of state secret.
The foregoing determines the division of the research into three stages.
The rst stage involved the study of the denition of state secret, the secrecy
level and the terms of classication of information constituting a state
secret provided by the legislative acts of the studied countries. The main
dierences between the studied aspects in the EU countries and Ukraine
are determined at this stage using methods of analysis and synthesis.
The second stage provided for the identication of types of information
classied as state secret. The main criteria that must be met by the
classication of information classied as state secret were determined
by using the methods of deduction and induction, and the compliance of
Ukrainian legislation with these criteria was established through the use of
analysis and synthesis.
The third stage describes the responsibility for the disclosure of state
secrets dened in the Criminal Codes of the studied countries. The method
of analogy was used to determine the aspects that should be reviewed
and improved in Ukrainian legislation, taking into account the European
experience, in particular, in the context of a large-scale invasion.
1.2. Sampling
The research sample consists of EU countries in view of the need to
harmonize Ukrainian legislation with international norms in the context
of Ukraine’s integration into the world community, in particular the EU
and NATO. The following countries were selected for comparison: Estonia,
Latvia, Lithuania, the Czech Republic, Bulgaria and Poland. This choice is
primarily determined by the common past of Ukraine and the some studied
countries as part of the Soviet Union – Estonia, Latvia, and Lithuania.
Therefore, it is appropriate to consider the ways in which the legislation
of these countries and Ukraine developed after they gained independence.
Second, the sample also includes Ukraine’s neighbours — the Czech
646
Vasyl Oliinyk, Larysa Herasymenko, Olena Tykhonova, Ivan Syvodied y Natalia Holdberh
Criminal protection of state secrets in Ukraine and EU countries
Republic, Bulgaria and Poland, the choice of which is determined by
the relatively close location of the countries, which causes their mutual
inuence and relationship from the perspective of politics, economy, and
culture.
1.3. Information background
Scientic periodicals of Ukraine and other countries, as well as legislative
acts of Ukraine and the studied countries were used as the information
background of the research, in particular:
• Law of the Republic of Latvia On State Secrets;
• Law of the Republic of Lithuania No. VIII-1443 On State and Ocial
Secrets of 25 November 1999;
• Law of Ukraine No. 3855-XII “On State Secrets”;
• Decision of the National Security and Defence Council of Ukraine
On the National Security Strategy of Ukraine;
• Act of the Czech Republic No. 412 On Protection of Classied
Information of 21 September 2005;
• Classied Information Protection Act (Bulgaria);
• State Secrets And Classied Information Of Foreign States Act,
Estonia (2011);
• The Act on the Protection of Classied Information of 5 August
2010, Poland;
• as well as the Criminal Codes of all the studied countries.
2. Results
The reliability of the state secret protection system primarily depends
on the eective criminal law system legislatively enshrined by the state.
Outdated practices of state secret protection can lead to increased threats,
in particular from cybercriminals, in the context of the development of a
digital society, as well as in view of the lack of mechanisms to counter new
ways and means of committing crimes in the eld of state secret protection.
At the same time, the use of the latest tools and experience of developed
countries can contribute to increasing the reliability of state secret
protection.
This research focuses on the following aspects of the criminal law
protection of state secrets in Ukraine and the EU countries selected for
comparison:
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CUESTIONES POLÍTICAS
Vol. 41 Nº 76 (2023): 641-661
• denition of a state secret;
• types of information classied as state secrets;
• secrecy levels;
• terms of classication;
• responsibility for disclosure of state secrets.
2.1. The denition of state secret, the secrecy levels and the
terms of the classication of information constituting a state
secret presented in the legislative acts of the studied countries
Six EU countries are selected in this article in order to conduct a
comparative analysis with Ukrainian practice: Estonia, Latvia, Lithuania,
the Czech Republic, Bulgaria and Poland. The information background of
the research includes an analysis of the laws of these countries regarding
state secrets protection and their criminal codes. In particular, Table 1
provides a comparison of the denitions of state secrets given in the laws of
the selected countries regarding the state secrets protection with the source
indicated.
Table 1. Denition of state secret presented in the legislative acts
of the selected countries
Country Source Denition of state secret
Estonia State Secrets
and Classied
Information of
Foreign States
Act (Estonia)
“State secret2 means information provided exclusively
by this Act or legislation adopted pursuant to it, which
requires protection from disclosure in the interests of
national security or foreign relations of the Republic of
Estonia, with the exception of secret information of foreign
countries
Latvia Law of the
Republic of
Latvia on State
Secrets
State secret means such information of a military, political,
economic, scientic, technical or other nature, which is
included in the list approved by the Cabinet of Ministers,
and the loss or illegal disclosure of which may cause
damage
Lithuania Law of the
Republic of
Lithuania
No. VIII-1443
On State and
Ocial Secrets
State secret is a political, military, intelligence, law
enforcement, scientic, technical and other information
classied in accordance with the procedure established
by this Law, the loss or illegal disclosure of which could
endanger the sovereignty, territorial integrity, defence
capability of the Republic of Lithuania, cause damage to
states, endanger human life
Czech
Republic
Act No. 412 On
the Protection
of Classied
Information of
21 September
2005
Classied information is information in any form recorded
on any medium designated as such in accordance with
this Law, the unauthorized disclosure or misuse of which
may harm the interests of the Czech Republic or may
be detrimental to those interests, and which is listed as
“classied information”
648
Vasyl Oliinyk, Larysa Herasymenko, Olena Tykhonova, Ivan Syvodied y Natalia Holdberh
Criminal protection of state secrets in Ukraine and EU countries
Bulgaria Classied
Information
Protection Act
(Bulgaria)
For the purposes of this Law, classied information is
any information constituting a state or ocial secret, any
foreign secret information. A state secret is the information
specied in Annex 1, the unauthorized access of which
could threaten the interests of the Republic of Bulgaria or
harm such interests related to national security, defence,
foreign policy or the protection of the constitutional system
Poland The Act of 5
August 2010 on
the Protection
of Classied
Information
(Poland)
The Act establishes rules for the protection of information,
the unauthorized disclosure of which would cause or
could cause damage to the Republic of Poland or would be
disadvantageous from the perspective of its interests, also
in the process of their development and regardless of the
form and method of their expression, which is hereinafter
referred to as “classied information”
Ukraine Law of Ukraine
“On State
Secrets”, 2022
State secret (hereinafter also referred to as classied
information) is a type of secret information that includes
information in the eld of defence, economy, science
and technology, foreign relations, state security and
law enforcement, the disclosure of which may harm the
national security of Ukraine and which are recognized as
state secrets and are subject to state protection pursuant to
this Law
Source: prepared by the authors.
The analysis of the denitions given in Table 1 gives grounds to note that
only in Ukrainian legislation national security only is the object that can be
harmed by the disclosure of a state secret. Of course, national security has
the highest priority, but the legislation of other EU countries under research
expands the list of the objects that can be harmed by the disclosure of state
secrets, thereby further strengthening the protection of the interests of
countries.
So, in Estonia it is national security and foreign relations, in Latvia –
state security and economic or political interests, in Lithuania – sovereignty,
territorial integrity, defence capability of the Republic of Lithuania, other
states and human life, in the Czech Republic and Poland – the interests
of the state as a whole, in Bulgaria – interests related to national security,
defence, foreign policy or protection of the constitutional system. Therefore,
in the author’s opinion, the denition given in the Ukrainian legislation
needs some clarication.
Table 2 presents the secrecy levels and terms of classication of
information constituting a state secret in the legislative acts of the selected
countries.
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Table 2. Secrecy levels and terms of classication of information constituting a
state secret in the legislative acts of the selected countries.
Country Secrecy levels Terms of classication
Estonia 1) “restricted” level;
2) “condential” level; 3)
“secret” level; 4) “top secret”
level
From 10 to 75 years depending on information
type
Latvia Information constituting a
state secret, depending on its
signicance, is divided into
three categories: “especially
important”, “top secret” and
“secret”.
Information constituting a state secret
classied as “secret” — for 5 years, as
“top secret” — for 10 years, as “especially
important” — for 20 years. Data on persons
engaged in operational investigative activities
and persons involved in special procedural
protection are classied for a period of 75
years.
Lithuania The classications from the
highest secrecy level to the
lowest are as follows:
1) “top secret”;
2) “secret”;
3) “condential”;
4) “restricted access”
Information is classied for the following
terms:
1) information classied as “top secret” — for
30 years;
2) information classied as “secret” — for 15
years;
3) information classied as “condential” —
for 10 years;
4) information classied as “restricted access”
— for 5 years.
Classied information, the disclosure of which
could create prerequisites for a threat to
human life or health, is classied for 75 years
Bulgaria Information that is a state
secret must be classied
with the following security
level: “top secret”; “secret”;
“condential”
Periods of protection of classied information,
starting from the date of creation:
1) information classied as “top secret” — 30
years;
2) information classied as “secret” — 15
years;
3) information classied as “condential” –
ve years;
4) information constituting an ocial secret —
6 months.
Czech
Republic
Secret information is
classied as:
a) “top secret”;
b) “secret”;
c) “condential”;
d) “restricted access”
10 years from the date of application for the
“condential” secrecy level, 15 years for the
“secret” secrecy level, and 20 years for the “top
secret” secrecy level
Poland The classications “top
secret”, “secret” and
“condential”
A condentiality clause is provided by a person
authorized to sign a document or mark […].
That person can specify a date or event after
which the condentiality clause will be lifted
or amended.
Ukraine The security label is as fol-
lows: “special importance”,
“top secret” or “secret”.
Information classied as “special importance”
— 30 years, “top secret” — 10 years, “secret”
— 5 years.
Source: prepared by the authors.
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Vasyl Oliinyk, Larysa Herasymenko, Olena Tykhonova, Ivan Syvodied y Natalia Holdberh
Criminal protection of state secrets in Ukraine and EU countries
Table 2 gives grounds to conclude that the selected countries distinguish
three or four secrecy levels. The terms of classication of the most important
information, which constitutes a state secret, reach a maximum of 20-30
years. Information about persons engaged in investigative activities may be
classied for 75 years (in Poland, such information must remain protected
regardless of the time that has passed).
2.2. Types of information classied as state secrets
The legislation of the countries selected for the study also diers regarding
the denition of the types of information that constitute a state secret. For
example, in Estonia, such information in a generalized form includes data
related to foreign relations, national defence, law enforcement, security
agencies, infrastructure and information protection (State Secrets and
Classied Information of Foreign States Act, 2011).
In Latvia, special attention is paid to the protection of information
related to national defence, in particular, data on:
the military potential of the state, its defence strategy and tactics,
defence and mobilization plans;
systems and material and technical means of armament, communication
and information, their acquisition by state security and defence bodies;
location of facilities, buildings and other objects important for state
security and defence, plans for their protection and evacuation;
types and quantities of products produced for the needs of state security
and defence, as well as mobilization capacities of industry, etc.
Besides, information regarding state material reserves, scientic
research, discoveries, use of inventions, if such activities are carried out
with the support of the state, certain areas of state foreign policy, and a
number of other types of information, including information about means
and methods of protecting state secrets (Rada, 2004).
In Lithuania, the list of information that may constitute a state secret is
quite detailed and contains 28 items. Traditionally, information about the
defence of the state is in the rst place: information about the state defence
reserve and summarized detailed information about the mobilization
reserve of material resources, plans for the activities of public authorities
and self-government bodies in cases of a state of emergency and martial law,
as well as mobilization plans. Besides, important information constituting a
state secret in the country includes information on:
• protection of securities, documents, banknotes and other documents
from forgery;
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• individual information regarding criminal intelligence;
• information about negotiations with foreign countries;
• cooperation with special services of other states;
• protection of nuclear facilities;
• keeping secret information;
• preservation of information about secret participants of criminal
intelligence and their activities;
• plans to combat terrorism and sabotage;
• new technologies, scientic research, tests and their results, which
are of special importance for the interests of the state, etc. (Law of
the Republic of Lithuania, 1999).
In Bulgaria, the list of information that can constitute a state secret
covers even more of its types than in Lithuania, and is set out in the annexes
to the relevant legislative act. The list is divided into categories:
• information related to the country’s defence (24 items);
• information related to the country’s foreign policy and internal
security (34 items);
• information related to the country’s economic security (7 points)
(Classied Information Protection Act, 2018).
• In the Czech Republic, it is prohibited to disclose classied
information to an unauthorized person, which may cause:
• threats to sovereignty, territorial integrity or democratic principles
of the state;
• signicant damage to the Czech Republic in the nancial, monetary
or economic spheres;
• death of people or threat to life and health of citizens;
• violation of internal order and security in the country;
• a serious threat to the combat capability of the Armed Forces of
the Czech Republic, the North Atlantic Treaty Organization or its
member state or the armed forces of a EU member state;
• a serious threat to important security operations or activities of
intelligence services;
• a serious threat to the activities of the North Atlantic Treaty
Organization, the European Union or a member state;
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Vasyl Oliinyk, Larysa Herasymenko, Olena Tykhonova, Ivan Syvodied y Natalia Holdberh
Criminal protection of state secrets in Ukraine and EU countries
• a serious violation of the diplomatic relations of the Czech Republic
with the North Atlantic Treaty Organization, the European Union,
member states or another state or a serious aggravation of the
situation causing international tension (On the Protection of
Classied Information of 21 September, 2005).
In Poland, types of secret information are distinguished according to the
classications of secrecy dened in the legislation. Classied information is
considered “top secret” if its unauthorized disclosure would cause extremely
serious damage to the Republic of Poland through:
• a threat to the independence, sovereignty or territorial integrity of
the Republic of Poland;
• a threat to internal security or the constitutional system of the
Republic of Poland;
• a threat to allies or the international position of the Republic of
Poland;
• weakening of the defence capability of the Republic of Poland, etc.
• Classied information is subject to the “secret” caveat if its
unauthorized disclosure would cause serious harm to the Republic
of Poland through:
• hindering the performance of tasks related to the protection of the
sovereignty or constitutional system of the Republic of Poland;
• deterioration of the relations of the Republic of Poland with other
states or international organizations;
• violation of the defence preparation of the state or the functioning of
the Armed Forces of the Republic of Poland, etc.
The classied information is marked “condential” if its unauthorized
disclosure would harm the Republic of Poland through:
• complication of the current foreign policy of the Republic of Poland;
• hindering the implementation of defensive measures or having a
negative impact on the combat capability of the Armed Forces of the
Republic of Poland;
• violation of public order or threat to the safety of citizens, etc.
(Global-Regulation, 2010).
The legislation of Ukraine provides a wide list of information that can
be dened as a state secret. It is proposed to divide such information into
categories: information in the eld of defence, information in the eld
of economics, science and technology, information in the eld of foreign
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relations, information in the eld of state security and law enforcement
(The Law of Ukraine on State Secrets, 2022).
The types of information which can constitute a state secret enshrined in
the legislation of the countries depend, rst of all, on the priorities, strategic
goals, peculiarities of internal and foreign policy in each individual state.
However, it is common that such types of information, in general, should be:
rst, consistent with international norms, second, be suciently detailed to
avoid misunderstandings, and, third, contain types of information related
to such areas as defence, economy and nance, science and technology,
foreign policy activities, intelligence or counterintelligence activities,
internal security in the country, in particular, the security of citizens. Based
on the conducted comparative analysis, Ukrainian legislation in this area
meets the specied criteria in general.
2.3. Responsibility for the disclosure of state secrets established
in the Criminal Codes of the selected countries
One of the most important and eective ways to ensure the protection of
state secrets is to establish responsibility for its disclosure. Table 3 provides
data on the responsibility for the disclosure of state secrets established in
the Criminal Codes of the selected countries, indicating the relevant articles.
Table 3. Responsibility for disclosure of state secrets dened in the Criminal
Codes of the selected countries
Country Responsibility for disclosure of state secrets
Estonia § 241. Disclosure of state secrets and secret information of foreign countries
(1) Disclosure or illegal notication or provision of illegal access to a state secret
or secret information of a foreign state by a person who is obliged to maintain
the condentiality of a state secret or secret information of a foreign state […] is
punishable by a ne or imprisonment for a term of up to ve years.
(2) The same act committed by a legal entity is punishable by a ne (Penal
Code, 2017).
Latvia Article 94. Intentional disclosure of state secrets
Intentional disclosure of a state secret, if it is committed by a person who has
been warned not to disclose a state secret, and there are no signs of espionage
in this crime, is punishable by imprisonment for a term of up to ve years or
temporary imprisonment, or probation supervision, or community service, or
by a ne, with deprivation of the right to engage in certain activities or the right
to hold certain positions for up to ve years (Criminal Law/Krimināllikums,
2022).
Lithuania Article 125. Disclosure of state secrets
1. A person who discloses information constituting a state secret of the Republic
of Lithuania, if this information was entrusted to him/her or he/she gained
access to it through his/her service, work or during the performance of public
functions, but in the absence of signs of espionage, shall be punished by
deprivation of the right to hold certain positions or engage in certain activities
or deprivation of liberty for a term of up to three years (Law on the Approval
and Entry into Force of the Criminal Code, 2010).
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Czech
Republic
Article 317. Threats to classied information
(1) Whoever collects information classied in accordance with another
legal provision with the purpose of disclosing it to an unauthorized person,
who collects data containing secret information for such a purpose, or who
intentionally discloses such secret information to an unauthorized person,
shall be punished by imprisonment for a term of up to three years or a ban on
engaging in relevant activities.
(2) The oender shall be punished by imprisonment for a term of two to eight
years, a) if he/she intentionally discloses information that is classied as “top
secret” or “secret” in another legal act to an unauthorized person, b) if he/she
has committed the act referred to in clause 1, although the protection of secret
information was specically entrusted to him/her, or c) if by such action he/
she will obtain a signicant benet for himself/herself or another person or
cause signicant harm to another person, especially with serious consequences.
(3) The oender shall be punished by deprivation of liberty for a term of ve
to twelve years, a) if the action referred to in paragraph 1 concerns secret
information from the eld of defence of the Czech Republic, which has the Top-
Secret status in accordance with other legal norms or b) if he/she commits such
an act that poses a threat to the state or in a state of war (Penal Code/Trestní
zákoník, 2023).
Bulgaria Article 357.
(1) Anyone who discloses information constituting a state secret that has been
entrusted to him/her or has become known through his/her service or work, as
well as anyone who discloses such information being aware that it may harm
the interests of the Republic of Bulgaria, unless is subject to a more severe
punishment, shall be punished by imprisonment from two to eight years.
(2) If the act has or may have particularly serious consequences for the security
of the state, it shall be punishable by imprisonment for a term of ve to fteen
years.
(3) A person who disseminates foreign secret information received in
accordance with an international treaty to which the Republic of Bulgaria is a
party shall also be punished by a ne under Clauses 1 and 2.
(Criminal Code Bulgaria, 2017)
Poland Article 265.
§ 1. Anyone who discloses or, contrary to the provisions of the Law, uses
information classied as “secret” or “top secret” shall be punished by
imprisonment for a term of 3 months to 5 years.
§ 2. If the information referred to in § 1 was disclosed to a person acting on behalf
of a foreign organization, the party at fault shall be punished by imprisonment
for a term of 6 months to 8 years […].
Article 266.
§ 1. Anyone who, contrary to the provisions of the Law or the obligation
assumed, discloses or uses information that he/she has known in connection
with his/her function, work, public, social, economic or scientic activity, shall
be punishable by a ne, restraint of liberty or imprisonment for up to 2 years.
§ 2. A civil servant who discloses secret information classied as “secret” or
“condential” to an unauthorized person, or information that he/she received
in connection with the performance of ocial duties and the disclosure of
which may harm interests protected by law, shall be punished by imprisonment
for up to 2 years (Penal Code/Kodeks karny, 2023).
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Ukraine Article 328. Disclosure of state secrets
1. Disclosure of information constituting a state secret by a person to whom
this information was entrusted or became known in connection with the per-
formance of ocial duties, in the absence of signs of treason or espionage, shall
be punishable by imprisonment for a term of two to ve years with deprivation
of the right to hold certain positions or engage in certain activities for a period
of up to three years or without such.
2. The same act, if it caused serious consequences, shall be punishable by im-
prisonment for a term of ve to eight years (Criminal Code of Ukraine, 2022).
Source: prepared by the authors.
Analysing Table 3, it can be noted that the legislation of the Czech Republic
and Bulgaria provide the most severe punishment for the disclosure of state
secrets. In the Czech Republic, in cases where disclosed state secrets were
related to information in the eld of defence with the Top-Secret status, in
case of threat to the state or in a state of war, the oender shall be punished
by imprisonment for a term of ve to twelve years.
In Bulgaria, if the disclosure of a state secret has or may have particularly
serious consequences for the security of the state, the punishment ranges
from ve to fteen years of imprisonment. In Estonia and Latvia, the
maximum term of punishment is ve years, in Lithuania — three years, in
Poland and Ukraine — eight years.
In the author’s opinion, it is advisable for Ukraine to revise the terms
of punishment for the disclosure of state secrets following the example of
Bulgaria and the Czech Republic. If the disclosure of a state secret led to
particularly serious consequences for the security of the state or occurred
in case of threat to the state or in a state of war regarding particularly
important information related to the defence of the country, it is advisable
to increase the terms of the maximum punishment. Besides, the Estonia’s
experience of the introduction of responsibility in the form of a monetary
penalty for the disclosure of state secrets to a legal entity can be eective.
3. Discussion
The article provides a comparison of the denitions of state secrets,
types of information classied as state secrets, secrecy levels, terms of
classication and responsibility for disclosure of state secrets in the
countries selected for the study. The following conclusions can be drawn
from the analysis in the context of recommendations for Ukraine:
The denition of state secrets should be claried in Ukrainian legislation,
in particular regarding the expansion of objects that may suer damage as
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a result of the disclosure of secret information. It is appropriate to increase
the responsibility for the disclosure of state secrets, especially in the eld of
information that is particularly important for ensuring national security, is
related to defence, and was also disclosed in a state of threat to the country
or war.
Ukrainian and foreign researchers also give a number of recommendations
in their studies on the reform of the state secret protection system and
bringing the national system in compliance with international standards.
Boldyr (2018) focuses on the aspects of checking persons who have access
to classied information.
The researcher provides the following recommendations for optimizing
such a check: replace the term “providing access to state secrets” with the
concept of “security check certicate”; introduce a dierentiated number
of security checks depending on the secrecy level; revise the terms of the
security check; consider the possibility of applying a security check to
citizens before their appointment to responsible positions, etc. Aspects of
security check were not covered in the author’s research, because this topic
went beyond the areas outlined in the article, and therefore this problem
can become an area of further research.
Analysing the experience of other countries as an example for Ukraine,
Serhiychuk (2019) makes the following recommendation regarding
amendments to the Law “On State Secrets”: to include the terms of storage
and the secrecy level of classied information. This practice, as dened in
this article, is carried out in Poland. However, in the author’s opinion, there
is no need for such a division in Ukrainian legislation, because it already
has a division by spheres of information (defence, economy, science and
technology, foreign relations, state security and law enforcement).
Inclusion of features by terms of classication periods and secrecy
levels can make it confusing and less transparent. Following the example
of Estonia, Serhiychuk (2019) also proposes to dene (according to the
Estonia’s experience) a legal entity as the subject of crimes in the eld of state
secret protection. Such a suggestion can be eective in view of strengthening
the protection of state secrets due to increasing the responsible attitude of
legal entities keeping them.
As a result of the analysis of the experience of other countries, it is
appropriate to cite the opinion of Kharchenko (2021): blind copying of
foreign experience can lead to undesirable results, and therefore the use of
such experience should be coordinated and adapted to national traditions
and peculiarities.
A number of researchers emphasize that improving the system of
information and communication technologies (ICT) and strengthening
cyber security is necessary to increase the eectiveness of the state secret
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protection system. Thus, Vdovenko and Danyk (2019) point out that,
among other things, changes in the state secret protection system consist in
determining the directions of scientic research in the eld of information
protection, the development of cryptographic and technical information
protection systems, determining the sources of funding for such scientic
research, etc.
Studying the protection of classied information in Hungary,
Topolewski (2020) emphasizes the growth of threats to the security of such
information in the context of the development of the information society.
Topolewski (2020) also emphasizes the need for the development and use
of ICT security measures, noting that the improvement of the state secret
protection system should rst of all be based on the rules and regulations
established by law, as well as appropriate sanctions. The researcher’s
ndings are reected in the results of the author’s research, in which the
improvement of legislative norms and the establishment of appropriate
responsibility are priority directions for increasing the eectiveness of the
state secret protection system.
Denyshchuk (2021) writes on the areas of improvement that have
been carried out by Ukrainian government ocials recently and relate, in
particular, to providing access to state secrets, classication procedures,
requirements for persons related to the protection of state secrets, control
and supervision, etc. The researcher notes that the introduced changes
require further consideration and improvement, which, based on the results
of the research conducted in this article, should be agreed with.
As mentioned above, it is advisable to pay special attention to the review
of responsibility for the disclosure of state secrets, because in wartime this
aspect can directly aect the course of the conict. This opinion is conrmed
in the studies of foreign researchers. In particular, Wądołowski (2022)
in his research focuses on the organization of the system of protection of
state secrets in the context of consideration and interpretation of criminal
laws on crimes against the protection of classied information based on
the analysis of the experience of the Republic of Croatia and Bosnia and
Herzegovina.
Aspects of combating crimes in the eld of state secrets protection are
separately considered in the works of Ukrainian researchers. Nehoda (2021)
studies the levels of combating such crimes. The researcher singles out
three levels: general social counteraction (consists in the implementation
of preventive inuence on the crime rate in general); special criminological
countermeasures (provides for the prevention of certain types of crimes
in the relevant spheres of their commission); individual countermeasures
(prevention of crimes by individual persons).
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Oliinyk (2020) examines in detail a separate direction — subjective
prevention of crimes, which is most closely related to the “individual
countermeasures” mentioned above. The countermeasures include the
improvement of professional qualities, resource and other provision of
relevant state bodies, associations and individual citizens, improvement of
information and analytical work, careful selection of personnel, etc.
Conclusions
Ensuring the protection of state secrets is always one of the most
important tasks of the state in the context of preserving its national security,
but the fact that Ukraine is at war with the Russian Federation makes this
problem particularly acute. The issue under research is also relevant in
view of Ukraine’s integration into the world community.
This article analysed the following aspects of the criminal law protection
of state secrets in Ukraine and EU countries selected for comparison:
denition of state secrets, types of information classied as state secrets,
secrecy levels, terms of classication, responsibility for disclosure of state
secrets. The results of the analysis gave grounds to establish that the
improvement of the state security protection system of Ukraine should
consist, among other things, in the following:
clarication of the denition of a state secret, in particular regarding
the expansion of the list of objects that may suer damage as a result of the
disclosure of secret information;
increased responsibility for the disclosure of state secrets, especially in
the eld of information that is particularly important for ensuring national
security, refers to defence, and was also disclosed in times of threat to the
country or war.
The obtained results can be useful for government ocials in view of
their focus on the identied problematic aspects. The direction of further
research should be to identify specics and determine measures to optimize
the procedure of security checks of persons who have access to classied
information.
Bibliographic References
BOLDYR, Serhiy. 2018. “Reforming the state secret protection system: Legal
aspects” In: Information and law. Vol. 1, pp. 112-120.
659
CUESTIONES POLÍTICAS
Vol. 41 Nº 76 (2023): 641-661
CLASSIFIED INFORMATION PROTECTION ACT. 2018. SG No.
44/29.05.2018. Available online. In: https://www.dksi.bg/media/1467/
classied_information_protection_act.pdf. Consultation date:
15/10/2022.
CRIMINAL CODE BULGARIA. 2017. No. BG078. Available online. In:
https://www.wipo.int/wipolex/ru/text/445836. Consultation date:
20/10/2022.
CRIMINAL CODE OF UKRAINE. 2022. No. 2341-III. Available online. In:
https://zakon.rada.gov.ua/laws/show/2341-14#Text. Consultation
date: 20/10/2022.
CRIMINAL LAW/KRIMINĀLLIKUMS. 2022. No. 199/200. Available
online. In: https://likumi.lv/doc.php?id=88966. Consultation date:
02/10/2022.
DENYSHCHUK, Denys. 2019. “General characteristics of the state criminal and
executive oce of ukraineas a subject of protection of the state secret” In:
National Law Journal: Theory and Practice. Vol. 5, pp. 50-54.
DENYSHCHUK, Denys. 2021. “Modern problems of legal protection of state
secrets” In: Modern problems of legal, economic and social development
of the state: Abstracts of reports of the 10th International scientic and
practical conference dedicated to the 27th anniversary of the Kharkiv
National University of Internal Aairs. Kharkiv, Ukraine.
GLOBAL-REGULATION. 2010. The Act of 5 August 2010 on the Protection
of Classied Information. Available online. In: https://www.global-
regulation.com/translation/poland/2986485/the-law-of-5-august-
2010-for-the-protection-of-classied-information.html. Consultation
date: 15/09/2022.
HALUSHKA, V; TIKHONOVA, V. 2021. State secret according to the criminal
legislation of Ukraine and foreign countries of the world. Innovation in
science and technology. Abstracts of ХIV International Scientic and
Practical Conference. USA, Boston.
KHARCHENKO N. 2021. “Organizational and legal principles of protection
of state secrets in Ukraine” In: Scientic Papers of National University
“Odessa Law Academy” Vol. 29, pp. 208-214.
LAW OF THE REPUBLIC OF LITHUANIA. 1999. No VIII-1443 “On state
and ocial secrets”. Available online. In: https://e-seimas.lrs.lt/portal/
legalActPrint/lt?jfwid=&documentId=TAIS.443111&category=TAD.
Consultation date: 18/10/2022.
660
Vasyl Oliinyk, Larysa Herasymenko, Olena Tykhonova, Ivan Syvodied y Natalia Holdberh
Criminal protection of state secrets in Ukraine and EU countries
LAW ON THE APPROVAL AND ENTRY INTO FORCE OF THE CRIMINAL
CODE. 2010. No. XI-677. Available online. In: https://www.wipo.int/
wipolex/en/text/226044. Consultation date: 15/10/2022.
NEHODA, A. 2021. “Prevention of crimes in the sphere of protection of state
secrets” In: Ensuring law and order and combating crime in Ukraine
and the world: Problems and ways to solve them. Materials of the 1st
International Scientic and Practical conference. Dnipro, Ukraine.
OLIINYK, Vasyl. 2020. “General social measures of criminal prevention oenses
in the eld of the protection of state secrets” In: Juridical Science. Vol. 11,
No. 113, pp. 179-188.
ON THE NATIONAL SECURITY STRATEGY OF UKRAINE. 2020. No.
n0005525-20. Available online. In: https://zakon.rada.gov.ua/laws/
show/n0005525-20#Text. Consultation date: 20/09/2022.
ON THE PROTECTION OF CLASSIFIED INFORMATION. 2005. Czech Act
No. 412. Available online. In: http://www.sze.hu/~smuk/Nyilvanossag_
torvenyek_CEE/Informacioszabadsag/cz%20classified%20data%20
act%202005.pdf. Consultation date: 15/09/2022.
PENAL CODE. 2017. No EE225. Available online. In: https://www.wipo.int/
wipolex/en/text/432562. Consultation date: 15/10/2022.
PENAL CODE/KODEKS KARNY. 2023. No. XXXIII. Available online. In:
http://www.przepisy.gofin.pl/przepisy,3,9,9,220,327785,2022011
2,art-265-269c-przestepstwa-przeciwko-ochronie-informacji.html.
Consultation date: 02/01/2023.
PENAL CODE/TRESTNÍ ZÁKONÍK. 2023. No. 40/2009 Sb. Available online.
In: https://www.podnikatel.cz/zakony/zakon-c-40-2009-sb-trestni-
zakonik/uplne/. Consultation date: 04/01/2023.
PONOMARENKO, O. 2021. “Peculiarities of criminal protection of state secrets
under US law” In: Information and law. Vol. 2, No. 37, pp. 123-128.
RADA. 2004. Law of the Republic of Latvia “On State Secrets”. Available online.
In: http://lib.rada.gov.ua/static/LIBRARY/catalog/law/latv_tajna.
html. Consultation date: 20/12/2022.
SERHIYCHUK, V. 2019. “The experience of some foreign countries on criminal-
LEGAL protection of state secrets” In: Subcarpathian Law Herald. Vol. 2,
No. 3(28), pp. 161-165.
STATE SECRETS AND CLASSIFIED INFORMATION OF FOREIGN STATES
ACT. 2011. No. EE052. Available online. In: https://www.wipo.int/
wipolex/en/text/333535. Consultation date: 15/12/2022.
661
CUESTIONES POLÍTICAS
Vol. 41 Nº 76 (2023): 641-661
THE LAW OF UKRAINE ON STATE SECRETS. 2022. No 3855-XII. Available
online. In: https://zakon.rada.gov.ua/laws/show/3855-12#Text.
Consultation date: 20/12/2022.
TOPOLEWSKI, Stanisław. 2020. “Classied Information Protection in Poland:
Traditions and the Present Day” In: Safety and Defense. Vol. 6, No. 1, pp.
48-62.
TYSHCHUK, Viktor; SYVOVOL, Rostislav. 2021. “The criminological prole of
the person who makes the disclosure of the state secrets” In: Bulletine
Luhansk State University of Internal Aairs named after E. O. Didorenko.
Vol. 1, No. 93, pp. 305-315.
VDOVENKO, Serhiy; DANYK, Yuriy. 2019. “Legislative and regulatory
aspects of problems in the eld of protection of state secrets and ocial
information and ways to solve them» In: Actual problems of state
information security management: 10th All-Ukrainian Scientic and
Practical Conference. Available online. In: http://ippi.org.ua/sites/
default/les/konf_04_04_2019.pdf. Consultation date: 20/12/2022.
WĄDOŁOWSKI, Rafał. 2022. “Protection of classied information in Bosnia
and Herzegovina and Croatia. Selected criminal and administrative
regulations” In: Przegląd Bezpieczeństwa Wewnętrznego. Vol. 14, No.
27, pp. 276-299.
ZUB O. 2019. Improvement of Ukrainian legislation in the eld of protection
of state secrets and ocial information, taking into account NATO
and EU security standards. In: Actual problems of state information
security management X All-Ukrainian scientic and practical
conference. Kyiv. Available online. In: https://academy.ssu.gov.
ua/uploads/p_57_54325835.pdf#page=155. Consultation date:
20/12/2022.
www.luz.edu.ve
www.serbi.luz.edu.ve
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