Verkhovna Rada plans to regulate wiretapping permits
The Verkhovna Rada has adopted as a base the draft law “On amendments to some laws to improve mechanisms protecting constitutional rights of citizens during investigative operations and counter-espionage activities”.
The draft law proposes amendments to the Criminal Procedure Code, the laws “On investigative operations” and “On counter-espionage activities”. It would define the procedure for receiving permits to gain secret access to a person’s house or other property, intercept information from communication channels, check their correspondence, telephone calls, telegraphs or other correspondence, and use other technical means of gaining information.
According to the draft law, the body wishing to carry out such measures, must make the relevant application, agreed with the Prosecutor to the court. After this, the judge should check that there are grounds for applying such investigative operations, that it is not possible to obtain the information through any other means, and make a motivated decision.
Comment from the Ukrainian Helsinki Human Rights Union
UHHRU draws attention to the guarantees laid down in the Constitution where Article 31 states:
“Everyone is guaranteed privacy of mail, telephone conversations, telegraph and other correspondence. Exceptions shall be established only by a court in cases envisaged by law, with the purpose of preventing crime or ascertaining the truth in the course of the investigation of a criminal case, if it is not possible to obtain information by other means.”
The Constitution thus stipulates that the above-mentioned exceptions must be solely at the level of a law. Yet at present, what is in force is not a law, but Cabinet of Ministers Resolution No. 1169 from 26.09.2007 which approved “Procedure for obtaining a court order to carry out measures which temporarily restrict human rights and the use of the information obtained”
In 2009 UHHRU applied to the District Administrative Court in Kyiv, and referring to Ukraine’s Constitution and to Article 8 of the European Convention on Human Rights (the right of respect for private and family life) and asked that the Cabinet of Ministers Resolution be declared unlawful and revoked.
The court turned this application down, however it did issue a separate decision which reminds the Cabinet of Ministers that the Resolution does not contain the safeguards of civil rights required by the Convention and European Court of Human Rights case law. It does not, for example, prohibit the passing of the protocol and information gathered to other State bodies.
The separate decision informs the Prime Minister and her Cabinet of the need to draw up and submit to the Verkhovna Rada a draft law on the Procedure for obtaining a court order to carry out measures which temporarily restrict human rights. It stresses that this law must be line with the Convention and case law of the European Court of Human Rights. It in fact suggests that those drawing up the law make use of UHHRU recommendations.