Legal principles of the monitoring of telecommunications
(Report at the public hearings of the draft of the Law of Ukraine “On the monitoring of telecommunications”, Kyiv, 26 November 2003)
Article 31 of the Constitution guarantees the confidence of correspondence, telephone talks, telegraph and other correspondence. The exceptions may be permitted only by court and only in the cases envisaged by law “with the aim to prevent a crime or to learn the truth during investigation of a criminal case, if there are no other ways to get the information”.
The procedure of realization of such exceptional measures is regulated by the Law of Ukraine “On the ODA”, which was adopted on 18 February 1992 (with numerous amendments and changes introduced in 1992-2003) and Article 187 of the Criminal-Procedural Code (version of 21 June 2001).
According to part 1 Article 5 of the draft, the monitoring “is realized with the aim of search and fixation of factual data about the unlawful actions of separate persons and groups, espionage and subversive activities of foreign special services and organizations, as well as getting the information connected with the security of citizens, society and state”. This vague and indistinct definition is made more accurate owing to the remark that the monitoring is realized exceptionally as a method of the ODA, intelligence and counterespionage activities on the basis of corresponding laws. Part 5 Article 9 of the Law on the ODA reads: “The violation of rights and freedoms of physical and juridical persons during the ODA is prohibited. Some concrete cases of the restriction of these rights and freedoms have the exceptional and temporary character and may be applied only after a corresponding court decision and only to a person, whose actions contain the features of a grave or especially grave crime, or, in the cases envisaged by the Ukrainian legislation, for the protection of rights and freedoms of other persons and the security of the society”. Thus, the monitoring may be realized only after a court decision in the cases, where a grave or especially grave crime was committed.
It is noteworthy that part 14 Article 9 contains somewhat different definition: “The ODA connected with the temporary restriction of human rights are carried out with the aim to prevent grave or especially grave crimes, their stoppage and disclosure, search of the persons dodging from criminal responsibility or missing, protection of life, health, dwelling and property of the workers of court and law-enforcing organs, struggle with espionage and subversive activities directed against Ukraine. If the necessity exists to realize these measures immediately, then the detective department must, within 24 hours, inform a court or a prosecutor about the realization and grounds for the application of these measures”. We want to point out that part 5 mentions only the ODA applied to a concrete person, whereas part 14 – the ODA that are applied not only to concrete person. In the opinion of Sweden professor Dennis Tellborg, the main goal of the secret supervision is not the search of a criminal, but the establishment of the very presence of the crime. When special services carry out the detective activities directed against the organized crime, drug traffickers, etc., they work before the commitment of the crime, and the aim of these ODA is to collect the information about a criminal, criminal group of possible violence actions (for instance, a terrorist act). In other words, it is frequently impossible to concretize the aim of the supervision on the stage, when the appeal is handed to court about the permission for this supervision. In such cases the obtaining of the permission becomes senseless, and the special services, in fact, can organize the supervision without any court control. So, the procedure of obtaining the court sanction must be distinctly defined by laws, and the formulation of the guarantees against the misuses becomes the most important question.
Unfortunately, the procedure of issuing the court permission is still based on Letter of the Supreme Court No. 16/6 of 19 November 1996 “On the temporary procedure of consideration of the materials about issuing permission for getting into dwelling or other estate of a person, seizure of correspondence and the collection of information from communication channels (telephone talks, telegraph and other correspondence)”. The letter contains only general principles of issuing the permission for realizing the ODA. Neither the maximal term of validity of the permission nor the term, for which the permission may be prolonged, are stipulated. The corresponding laws of other countries clearly stipulate the period of the action of such permission: 4 months in France, 3 – in Germany, 1 – in Finland and Sweden, 1.5 – in Hungary, 6 – in Russia, etc. Earlier this term in Ukraine was equal to 6 months, since the norm existed about the destruction of case materials, if any data confirming the commitment of a crime by the person, whom the ODA concerned, had not been found. Yet, this norm was abolished.
Items 6 and 7 of the Letter of the Supreme Court are also rather doubtful. However, we will not analyze the provisions of this letter. I can understand the Supreme Court, which had to issue this document within a very short time. But I cannot understand the legislators, who still have not regulated the procedure of issuing and prolonging the sanction for realization of the ODA restricting the constitutional rights of citizens. Yet, the Law on the ODA was changed 11 times since 1996! It is noteworthy that the procedure of issuing the permission for seizure of correspondence and the collection of information from communication channels during the investigation of criminal cases is described in details in Article 187 of the Criminal-Procedural Code, but this Article also does not contain either the maximal term of the action of this permission or the provision on regular court control. And the procedure of issuing the permission for getting into dwelling or other estate is not regulated by the CPC at all.
Thus, the courts apply Letter No. 16/6, the juridical validity of which is very doubtful. This letter is not related to normative legal acts, it may not even be called a quasi-source of right, as, for example, the recommendations of the Plenum of the Supreme Court of Ukraine. This letter is absent in the system “LIGA-Zakon”, and that is very strange, since this system contains all normative acts registered by the Ministry of Justice. I turned with the request to input the Supreme Court letter into the system, but received the following response: “It is impossible to input this document of the Supreme Court to the system, since it was not made public. Besides, judging from the title, it is an internal document, so we will not be able to obtain it”. So, the considered letter was not registered in the Unified register of normative acts of Ukraine. As a result, the letter may not be regarded as valid, because, according to Article 57 of the Constitution, “laws and other normative legal acts, stipulating the rights and freedoms of citizens, which were not made public in compliance with legal procedure, are invalid”. I believe that this situation visually illustrates the real, and not declarative, attitude of the Ukrainian state power to human rights. At that, the scale of the secret surveillance in Ukraine is astonishing: according to the information given by a judge of the Supreme Court at a recent conference, more than 40000 permissions for collecting the information from communication channels were issued in 2002, among them 4000 – in the Kharkov oblast. It should be interesting to compare these data with the number of persons accused by Ukrainian courts in 2002 for the commitment of grave and especially grave crimes: 41211. So, it is logical to suggest that the ODA were, first of all, directed at the disclosure of organized groups and criminal organizations. In 2002 the law-enforcers disclosed 722 groups consisting of 3205 members, who had committed 6467 crimes. 653 persons were condemned for the crimes committed by organized groups. In 2002 in Kharkov oblast 51 organized groups and 237 members of these groups were disclosed. All in all, 3793 persons were convicted. So, for what 4000 permissions for collecting the information from communication channels were issued? In my opinion, these numbers are incommensurable. Thus, it is necessary to publish the annual reports containing the data about the number of issued sanctions, number of refusals, kinds of crimes connected with the sanctions, average duration of the collection of information from the communication channels, the quantity of criminal case started after the results of the ODA, etc.
There is one more problem. The Internet ignores the state frontiers and, intercepting the correspondence of a Ukrainian citizen, the law-enforcing organs will interfere in the process of his information exchange with citizens of other countries, although they have no right to do that. Today neither the law draft nor the Law on the ODA take this into account. It is also obvious that the monitoring is something more than “the collection of information from communication channels” applied to concrete persons, which is stipulated by the Law on the ODA. It is seen from the demands to the monitoring system that the entire traffic would be traced, not only the traffic of the person suspected of a committed or prepared crime. That resembles the actions of a fisher, who tries to catch a fish with sweep-net. It is clear that the real goal of the monitoring is not to disclose a concrete criminal, but to find him, to obtain the information about the preparation to a crime or about an already committed crime. Yet, the court sanction becomes senseless under such conditions, and the opportunities for misuses are limitless. Neither the law draft on monitoring nor the Law on the ODA consider the traffic as an object of legal regulation and, correspondingly, the question does not emerge about the guarantees of law observance. However, this question is extremely important in the context of the observance of the right for privacy.
Moreover, even the guarantees that are envisaged by the draft are very unreliable, and the independent control of law observance is absent at all. Article 10 orders to destroy the messages collected by mistake; there are no other instructions on the storage of information except the remark that the procedure of keeping, storage and use of the protocols of monitoring is stipulated by the Cabinet of Ministers of Ukraine. Article 12 reads that the information concerning private life, honor and dignity of citizens, which became known in the course of monitoring, may not be divulged. Article 9 of the Law on the ODA contains more serious guarantees of law observance during the ODA; these guarantees should be also applied to the monitoring system, when the monitoring is regarded as a method of the ODA. If the grounds for realizing the ODA exist, then a case must be instituted, otherwise the ODA are prohibited. The resolution is issued, which contains the following data: the place and time of the issue, post and surname of the person, which signed it, grounds and aim of the institution of the case. In the cases of violation of the rights and freedoms of physical or juridical persons in the course of the ODA or in the cases, where the connection of the person, to whom these actions were applied, to a crime was not confirmed, the units realizing the ODA must immediately restore the abused rights and recompense the moral and material damage. Ukrainian citizens and other persons have the legal right to obtain from the organs, which realized the ODA, the written explanations about the restriction of their rights and freedoms and to complain against these actions. The information concerning private life, honor and dignity of citizens, which became known in the course of ODA, must be destroyed, if it does not contain the information about the illegal actions (parts 1, 8, 10 and 12 of Article 9). Unfortunately, the norm was removed from part 3 Article 9 about the destruction of the case materials, if the data confirming the commitment of a crime by the person, which was the object of the ODA, were not found within 6 months.
Naturally, the guarantees of law observance in the draft and in the law on the ODA must be agreed. Yet, these guarantees provide very ineffective protection from the misuses, especially if to compare them with the guarantees in German of Hungarian laws, which envisage the parliamentary supervision over the legality of the interception of correspondence with the assistance of supervision organs. Everyone, who reckons that his correspondence is illegally controlled by special services, may turn to these organs. It is interesting that the German committee G-10 is informed by the minister about all restricting measures permitted by him before the beginning of the interception of correspondence. The committee has the right to cancel the ministers order, after which the interception must be stopped immediately, if it has been started before getting the permission because of urgency. After the end of the interception the person, whose correspondence has been controlled, must be informed about these actions “if that will not harm the investigation”. All unneeded information must be destroyed.
In my opinion, both the draft on the monitoring of telecommunications and the more generalized law on the ODA are unsatisfactory from the viewpoint of guaranteeing the right for privacy and contradict the international standards in this sphere, since they contain the latent opportunities for the violation of Article 8 of the European Convention for the protection of human rights and fundamental freedoms.
Let us sum up. The draft of the law on monitoring of telecommunications envisages the excessive authorities of the USS, lays the financial burden connected with the introduction of monitoring system on the providers, does not give the clear and correctly formulated legal grounds for the introduction of monitoring system and does not contain the reliable guarantees against misuses. The draft can cause the violation of human rights and fundamental freedoms, first of all, of the right for privacy. So, it should be advisable to compile this draft anew, taking into account the norms of the draft on the protection of personal data (similar changes must be introduced into the law on the ODA) and the following recommendations.
1. The list of the crimes, in the connection with which the collection of the information from the communication channels is permitted, must be decreased; this list must be included to the law.
2. The law must be supplemented with the description of the procedure of obtaining and prolonging the sanction for the interception of correspondence and with the norm on the limitation of the term of action of this sanction. It is also desirable to pass the court decision from the computer of the judge, who is empowered to issue the permission, directly to the monitoring system, as well as to provide the receiving by judge of the results of the monitoring directly from the system for consideration of the question about the prolongation of the sanction.
3. The law must be supplemented with the rules of storage, use and destruction of the collected materials, in particular, the rules of the interchange of the materials between various organs, and the rules of compiling the concluding reports. Special attention should be paid to the legal regulation of the control over the traffic.
4. The procedure of collecting the information from the communication channels should be more transparent, the norm must be introduced about the obligatory informing of the person, whose correspondence was intercepted, after the end of the interception, and familiarization of the person with the obtained materials, which does not contain the information related to state secrets (similar norms exist in the laws of Germany, Austria and other countries). Under such conditions it will be possible to put into practice the provisions on the appellation against the illegal actions of the agencies, which carry out the ODA.
5. In order to inform the public about the scale of the secret interception of correspondence, the norms must be introduced on the publication of annual reports, which should contain the information about the number of issued sanctions for interception and the kinds of crimes, in the connection with which the decision on interception was taken, the number of the refusals to issue the sanctions and other information. Such practice exists in the USA and many European countries.
6. It is necessary to create the institute of independent surveillance over the legality of monitoring, which, on the one side, would receive automatically the copies of all intercepted information, and, on the other side, would consider the complaints against the illegal collection of information from the communication channels. These functions can be given, for instance, to the department of the secretariat of the ombudsperson in charge of the observance of the right for the protection of personal information.
7. The questions concerning the financing of the development and introduction of the monitoring system must be considered on the basis of the agreement between the USS and the providers, taking into account the anti-monopoly laws and the practices of the European Court concerning Article 1 of Protocol No. 1 to the European Convention for the protection of human rights and fundamental freedoms.
8. The entry code of the monitoring system software and the algorithm of the monitoring must be open (by the way, the entry code and other peculiarities of the similar system in the USA -- Carnivore – were published in autumn 2000, approximately 6 months after it became known about the work of the system).
 Wiretapping in international right and legislation of eleven European countries. – Kharkov: “Folio”, 1999. – 152 p.
 These and other statistical data: “Visnyk Verkhovnogo Sudu Ukrainy”, 2003, No. 3 and No. 4.