Human rights in Ukraine 2009 – 2010. 5. Right to privacy

[1]

The Constitution of Ukraine guarantees privacy: “No one shall be subject to interference in his or her personal and family life, except in cases envisaged by the Constitution of Ukraine” (article 32 of Constitution). At the same time the Constitution provides for protection of separate aspects of privacy. So, the article 30 protects immunity of residence (territorial privacy), article 31––privacy of correspondence, telephone conversations, telegraph and other correspondence (communication privacy), the article 32 prohibits collection, storage, use and distribution of confidential information about a person without his/her consent (information privacy), and the article 28 prohibits to put a person without his/her free consent to medical, scientific or other experiments (protecting certain elements of physical privacy).

The constitutional provisions give the complete list of legal grounds to invade on privacy and conditions for such break-in. However, both legislation and law enforcement contain many contradictions to the requirements of Constitution. For example, the legislation in part of right to privacy does not meet international standards, is contradictory and does not correspond with a concept “according to the law” practiced by the European court on human rights. In its turn, the law enforcement, in particular, law enforcement authorities largely disrespect the right to privacy.

On January 16, 2009 the circuit administrative court of Kyiv made a separate adjudication informing the prime minister of Ukraine about the necessity of drafting and submitting to Verkhovna Rada of Ukraine of a bill on the Procedure of getting court permit sanctioning measures that temporally limit human rights and use the obtained information[2]. In fact, although according to the Constitution of Ukraine the limitation of privacy of correspondence, telephone conversations, telegraph and other correspondence is possible only in the cases stipulated by law, the procedure of obtainment of the leave of court is regulated by subordinate legislation: the Cabinet Decision #1169 from 26.09.2007 approving “The procedure of obtainment of the leave of court for measures temporally limiting human rights and use of obtained information”. In 2009-2010 such procedure was not fixed by law.

No wonder there were procrastinations of amendments to the legislation noted by the European court on human rights in the case Volochy vs. Ukraine (2006). Until now there is no proper protection from illegal interference of public authorities with the right to private life and correspondence. In fact, the legislation still does not list persons covered by this procedure, relevant situations, and mandatory validity. The legislation contains no requirement of intermediate revision of decision about interference with a right to private life and correspondence in the reasonable time or any terms for such interference, no provisions for judicial review of law enforcement authorities during realization of their exercise of authority to interfere with private life. Moreover, the public authorities are not compelled to inform a person about surveillance executed, which limits the possibility to lodge a complaint against the legality of decision about state infringement of privacy.

So, we can conclude that guarantees of legality in the case of information pickup from interconnections and mail intercept are obviously insufficient, and the legislation of Ukraine does not determine with sufficient clearness limits and terms of realization by government agencies of the discretionary authority in this area.

In March 2009 the representatives of the Block of Yuliya Tymoshenko directed the lists of telephones belonging to the higher public officers allegedly tapped by the Security Service of Ukraine to all Ukrainian appellate courts having jurisdiction to sanction phone tapping. The similar lists the deputies also sent to Chairman of the Supreme Court Vasyl Onopenko, Prosecutor General Olexandr Medvedko and oblast public prosecutors.

As Sviatoslav Oliynyk (BYT faction) said: “At our own discretion we made a list of key persons and those, who, maybe, are already tapped. We did it in order that courts, public prosecutors and investigative agencies could once more check issued sanctions against names used in materials of their search actions. We have listed concrete phone numbers to attract attention of right persons involved in issuing sanctions to the fact that these telephones belong to public politicians, and not to persons involved in criminal cases."

According to the publication, the deputies directed to the Prosecutor General’s Office the list containing 11 numbers, and to the appellate court the broadened list of 30 phone numbers. Oliynyk said: "I do not intend to breach confidentiality and I will not name those on the list." According to the Komersant Weekly, the deputy’s inquiries included mobile phones numbers of Prime Minister Yuliya Tymoshenko, first vice-premier Olexandr Turchynov, deputy heads of BYT faction Andriy Kozhemyakin and Andriy Pornov, Prosecutor General Olexandr Medvedko, deputies of Prosecutor General Mykola Holomsha and Renat Kuzmin, and also first President Leonid Kravchuk. In addition, a source in the faction informed that the short list includes the name of one of the "chiefs of security, defense and law enforcement agencies"[3].

In November 2010 journalist V. Boiko (“ORD”) said that it became known to him that in submission for tapping of three telephones of Luhansk smuggler sanctioned by Chairman of the Luhansk Oblast Appellate Court Anatoliy Mykhailovych Vizir the phone numbers belong to such journalists as V. Boiko (“ORD”), S. Rechynsky («ORD») and S. Leshchenko (“Ukrayinska Pravda”). He maintained that usually, when the “phones of journalists and politicians are tapped by the SSU according to a standard practice, during the investigation of a real criminal case they illicitly add phones to the list to be illegally tapped”[4]. The SSU spokeswoman denied these allegations[5].

On December 1, 2010 the deputy chief of the department of Lviv Oblast State Automobile Inspectorate S. Kharabra said in his televised interview to the journalists of the program “Who lives here?” (TV channel “ZIK”) that he have records of conversations of journalists of this TV channel, which, if he is invited to the studio, he may openly broadcast, however he refused to dwell on the sources of such information[6].

There remains a problem of the procedure of search and seizure conducted not at home or other estate of the person, as contrary to international standards such actions need no court approval. Separate problems arise when they search apartments of advocates, because the advocates may keep information entrusted to them by a person under investigation, which needs special protection. However, in practice there is no such protection.

In August 2010 BYT deputy Andriy Senchenko said that during the illegal search of his office on August 11, 2010 the SSU agents bugged the premises. He believed that the absence of court decision about the search testifies to its illegality[7].

Combating the so-called cyberterrorism the SSU monitors the Internet users and regulates the Ukrainian segment of the network. Without any legislative authorization the SSU goes on using new tools to tap into the users’ lines.

For example, on September 1, 2010 they searched the premises of the mobile operator Intertelecom Ltd. under the pretext of looking for the smuggled stuff. However, the Intertelecom CEO said the real cause was their refusal to install automatic tapping required by SSU[8]. The analysts maintain that the requirements of the SSU are not grounded well enough[9].

On June 1, 2010 the Law of Ukraine was passed “On protection of personal data”[10] regulating relations related to personal data protection in the course of data processing.

This Law covers the compilation of personal DBs and personal DB processing except for personal DBs created by a physical entity for non-pro or domestic needs; by a journalist for discharge of his/her official or professional duties; by a professional creative worker for his/her creative activity.

By this Law all personal data, except for the depersonalized personal data, are classified as limited access information, except for the cases when the law forbids classifying personal data of certain categories of citizens or their full list as restricted information.

In particular, this rule does not cover personal data of a physical person that either aspires to hold or already holds an elected office (in representative bodies) or position of public officer of the first category, except for information classified as restricted under the law.

By law, the processing of personal data must be a pre-targeted process; should the target be reset the consent of the subject of personal data will be needed to reprocess data, and these personal data should be correlated with the targeted processing.

There should be no processing of data about a physical person without his/her consent, except for the cases regulated by law, and only in the interests of national security, economic welfare and human rights. Upon completion of preset term of use these personal data must be depersonalized.

There are shortcomings in the law, though. In particular, the unseparated common (last name, name, patronymic, citizenship, place and date of birth) and vulnerable personal data can yield negative results. For example, the requirement about the necessity of personal data processing with scientific, statistical and historical aims in the depersonalized form only can result in an absurd situation, when the use of the last name, name, and patronymic in scientific and historical works will be considered a breach of this law. Another problem is the necessity of development of subordinate legislation by the Cabinet of Ministers of Ukraine, without which the law is inapplicable. However, it is obvious that the law enforcement procedure will depend on the organ authorized to protect personal data and what procedure it will form. It should also be noted that the law establishes no transitional period during which the persons responsible for DB registration can gradually pass over to such system of registration.

In April and June 2010 the MIA brought up the return to booking nominal railroad tickets[11]. Until now, however, the Ukrzaliznytsia has failed to agree with such suggestion.

Today an identification number issued by the State Tax Administration is the basic electronic classifier used to collect and process personal data of the citizens of Ukraine. Its application field constantly expands and goes far beyond the legitimate target of tax bookkeeping. Without the ID code there is no legal employment, access to the pension system, realization of right to education, receipt of grants and unemployment benefits, registration of subsidies, establishing of bank accounts, registration of entrepreneurial activity, receipt of state credentials etc. Actually, the administrivia of government bodies leads to conscious breach of Law of Ukraine on the single register of physical persons––taxpayers––and the use of ID number for the purposes unspecified by this Law.

On May 18, 2010 the Verkhovna Rada of Ukraine passed the Law “On amendments to the Law of Ukraine “On prevention of legalization (washing) of profits obtained in a criminal way” that substantially expands the authority of Derzhfinmonitoring. The law goes beyond the scope of legislations about an professional legal and auditor’s privilege, secrecy of notary and makes these persons to disclose information about a person using vague reservations that in certain cases such secret can be disclosed.

In July 2010 the regional state administrations of Lviv Oblast were ordered to prepare the “social passport of the territory”. The filled-in questionnaires included all regional top administrators: deputies of all levels and chairmen of cities and settlements, militia, office of public prosecutor, courts, businesspersons, and company CEOs; among the questions, which could be explained by such aim, were such questions as “party membership of the leader, his/her political orientation, leverage of electorate, for whom s/he voted during 2010 presidential elections.” They also collected data on clergy[12]. Later such information came from other oblasts, e.g. Chernivtsi Oblast[13]. The analysts believed that these data were collected by the Administration of the President of Ukraine to be used in the local elections in the fall of 2010[14].

According to E-in-C of Sumy City Rada Sumy I sumchany Mykola Chernotytsky, in September 2010 the chief editors of Sumy Oblast municipal media received a letter requiring them to sign a typical agreement containing urgent request to inform proprietors of their media about their membership in political parties and also to inform owners about changes of their political views. The oblast state administration explains that it fulfilled the assignment of the Cabinet of Ministers of Ukraine[15].

There was one problem of privacy developing in 2009-2010: installation of surveillance cameras in public places, i.e. in kindergartens[16] and schools[17] that triggered different opinions.

In accordance with European standards, the video surveillance can take place: however it must meet the following requirements: the areas under surveillance should be systematically marked, the independent national surveillance agency should be set up to independently control the installation of cameras, storage and use of information about a person[18].

The coercive medical procedures were in the limelight of media: for example, the centralized vaccinations of children. In the absence of vaccinations, a child could not go to school or kindergarten. Meanwhile the very procedure of vaccinations is doubtful. The opponents of vaccination quote the legislation maintaining that vaccination can be done by consent of a person or by consent of his/her parents, if a person is under 15 years. They also maintain that the prohibition to attend child welfare institutions contradicts the constitutional right to education[19].

In July 2009 the Luhansk Oblast Office of Public Prosecutor brought an action against 4 employees, including chief doctor, of one of Luhansk dispensaries on suspicion of experiments on people[20].

Recommendations

1) To amend the Law of Ukraine “On protection of personal data” promoting the following principles:

- to distinguish the common (last name, name, patronymic, citizenship, date and birth-place) and vulnerable personal data with different access mode;

- different IDs (DBs of various public agencies) must be used separately, so that a single code should not cover all personal information;

- the interagency data exchange should be clearly regulated and be subject to court sanction with timely information of the person and possibility to refer to the court about these actions.

2) It is necessary to stop illegal administrative use of identification number (code) of taxpayer for other purposes than those stipulated by law. It is also necessary to stop the use of notion "the personal number", which is not foreseen by a law.

3) To annul the Decision of the Cabinet of Ministers no. 1169 from September 26, 2007 “About adoption of procedure of receiving of court authorization for measures temporarily limiting human rights and uses of obtained information” and pass instead a law clearly defining the procedure of information pickup from communication channels (tapping phones, mobile telephones, tracking of e-messages, control of Internet data viewing):

- the procedure of receipt of court approval for such actions and validity period;

- procedure of periodic court revision of the given approval;

- informing a person about the fact of information pickup from communication channels after completion of procedure and refusal to institute an action or dismiss an action;

- the right of a person to lodge an appeal against these actions and demand refund in case of groundless actions of government agencies;

- procedure of storage and further use of obtained data.

4) To amend legislation envisaging independent control of the activity of Government agency for special communication and protection of information of Ukraine, SSU and other law enforcement authorities in relation to the information pickup from communication channels, publication of annual report with the depersonalized data on the information pickup from communication channels in order of search activity.

5) To fix procedures in a criminal process allowing to file an appeal about actions of law enforcement authorities in relation to the search of the person, his/her dwelling and workplace, and also provide the ability to claim compensation in the case of violation of the procedure of search.

6) To introduce a norm envisaging annual publication by law enforcement authorities of general amount of sanctions to pickup information from communication channels and sanctions to intercept correspondence and conduct searches.

7) the MIA must stop unmotivated gathering of vulnerable personal information (political and religious creed, sexual orientation, etc).

8) To change legislation in relation to privacy of adoption concerning a child. In particular, it is necessary to make exceptions out of statutory provisions about the absolute secret of adoption (articles 226, 229, 230 of the Family Code, article 168 of the Criminal code).

9) To pass a law and other normative legal instruments protecting the rights of patients, in particular, in the case of coercive medical procedures and protection of confidential information on the state of health.

10) It is necessary to amend legislation and legal practice in order to remove contradiction between mandatory vaccinations for admittance to child’s establishments and the right to education for children whose parents consciously refuse to do such vaccinations, especially when such vaccinations are contraindicated for a child or harm a child.

==========

[1] Prepared by R. Topolevsky (Center for legal and political studies SIM).

[2] http://helsinki.org.ua/index.php?id=1233228499

[3] http://tsn.ua/ua/ukrayina/byut-sklav-spisok-posadovtsiv-kandidativ-na-nezakonne-prosluhovuvannya.html

[4] http://ord-ua.com/2010/11/08/zhurnalisti---kontrabandisti/

[5] http://telekritika.ua/news/2010-11-09/57369

[6] http://zik.com.ua/ua/news/2010/12/03/259965

[7] http://pravda.com.ua/news/2010/08/16/5305574/

[8] http://interfax.com.ua/rus/main/47231/, http://biz.liga.net/news/E1008823.html

[9] http://focus.ua/politics/141581

[10] http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2297-17

[11] http://mvs.gov.ua/mvs/control/main/uk/publish/article/319925,  http://24tv.com.ua/news/1/1/31894, http://gazeta.ua/index.php?id=344400

[12] http://wz.lviv.ua/pages.php?ac=arch&atid=84201

[13] http://pravda.com.ua/news/2010/07/26/5251041

[14] http://helsinki.org.ua/index.php?id=1283967350

[15] http://obkom.net.ua/news/2010-09-13/1454.shtml

[16]http://gazeta.ua/index.php?id=336003

[17] http://daily.lviv.ua/news/20167,  http://ukraine2012.gov.ua/publication/comments/559.html, http://zaxid.net/article/52893/

[18] European commission for democracy through law (Venice commission), Opinion «On video surveillance in public places by public authorities and the protection of human rights», Adopted by the Venice commission at its 70th plenary session (Venice, 16-17 March 2007), http://venice.coe.int/docs/2007/CDL-AD(2007)014-e.asp.

[19] http://radiosvoboda.org/content/article/1813129.html, http://vechirka.ck.ua/dodatok/zdorov%E2%80%99ya/shheplennya-robiti-budemo

[20] http://ua.glavred.info/archive/2009/07/04/152329-7.html