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08.04.2004

The newspaper “Vikna” asks: whether the information about communal debts is personal information, which must not be divulged by organs of state power?

   

13 April. The response of Oleg Tseluyko, the KhG lawyer.

This problem is very spacious, and I believe that this method of pressure on the citizens is a demonstration of illegal actions of state organs and, in particular, of state officials.

The protection of the citizens can be realized in several directions.

1)  Distribution (publication) of the information about communal debts of an individual may be interpreted as meddling into private life or/and creating the further conditions for such meddling. This contradicts Article 8 of the European Convention and Article 32 of the Ukrainian Constitution.

Why? As we know, Article 32 of the Constitution reads (pay special attention to the provisions set off in italics):

Nobody must undergo the interference into his private and family life, except the cases envisaged by the Constitution of Ukraine.

Collection, storage, use and distribution of confidential information about an individual without his consent is inadmissible, except the cases envisaged by law and only in interests of national security, economic welfare and human rights.

Every citizen has the right to familiarize in the organs of state power, local self-rule and other organizations with the data about him, which are not state secrets of other secrets protected by law.

Everybody has the right guaranteed by court to refute false information about him or members of his family and the right to demand seizure of any information, as well as the right to demand the compensation of moral and material damage inflicted by the collection, storage, use and distribution of this false information.

This guarantee of non-interference to the private life also implies the guarantee of personal secrets, of providing the comparative independence from the state and society. The provisions of the Article contain the well-grounded restrictions of the collection, storage, use and distribution of confidential information on an individual (without his consent), since the disclosure of the financial and material state of the individual can exert the negative influence on his life, family status and many other factors.

Here we must determine whether the data on communal debts are confidential. Let us consider Article 23 of the Law of Ukraine “On information”.

Article 23. Information on an individual

Information on an individual – is the aggregate of documented of published data about the individual.

The fundamental data about an individual (personal data) are: nationality, education, family status, religious convictions, state of health, address, date and place of birth.

The sources of the documented information on an individual are the personal documents of the individual, documents signed by the individual, as well as the data about the individual collected by the organs of state power and organs of local and regional self-rule in the framework of their activities.

Collection of the information on an individual without his consent is prohibited, except the cases envisaged by law. Every person has the right to familiarize with the information collected on him. The information on an individual is protected by law.

As we see, Article 23 defines the concept of personal data, and confidential information is defined by Article 30 of the Law (not in very apt way, in my opinion):

The information with the restricted access is divided, by its legal regime, into confidential and secret.

Confidential information is the data, which are owned, used or handled by separate physical or juridical persons and are distributed by their wish and according to the conditions stipulated by these persons.

Citizens and juridical persons, who own the information of professional, business, industrial, bank, commercial or other types obtained at their own expense or the information, which is an object of their professional, business, industrial, bank, commercial or other interests and does not violate the secrets envisaged by law, regulate the regime of the access to this information by themselves, including giving the status of confidential one, and establish the system (methods) of protecting this information.

Now let us consider Decision of the Constitutional Court of Ukraine No. 5-зп of 30 October 1997 (the case of Ustimenko). Item 1 of the resolution part of the decision reads that Part 4 of Article 23 of the Law of Ukraine “On information” (2657-12) must be interpreted as follows: not only collection is prohibited, but also storage, use and distribution of confidential information on an individual without his consent, except the cases envisaged by law  and only in interests of national security, economic welfare, human rights and freedoms.

Confidential information includes, in particular, the information on an individual (education, family status, religious convictions, state of health, date and place of birth, property state and other personal data). So, taking into account this interpretation, one can draw the conclusion that the data on property state belong to confidential information. Now let us solve the question whether the data on debts are the data on property state. This question is, unfortunately, not defined by the operating laws, but it may be solved in favor of the debtor on the basis of the laws of formal logics. Debt is one of the aspects of financial balance, so it is a part of property state of an individual; it is also a factor that influences property state of the individual and, maybe, of his family.

Here I want to remind that, according to the Law “On the Constitutional Court of Ukraine”, decisions of the Court are obligatory for fulfillment on the territory of Ukraine and may not be appealed against.

Thus, the obligation of the Decision is characterized by two features: 1) general obligation – for all subjects of right; yet, this concerns not the entire decision, but only its resolution part, where legal principle is interpreted or formulated; that is in the decision on the case of Ustimenko the Court formulated certain legal provisions that are generally obligatory; 2) special obligation – for the organs of state power, including court ones, which must take the decision in favor of Ustimenko in accordance with the Law “On the Constitutional Court of Ukraine”, in particular, Article 70.

As to the citizens’ right for the access to information, Article 31 of the Law “On information” states:

Citizens have the rights:

- to know during the period of collecting the information, which data are collected about them and with which aim; by whom, how and with which aim these data will be used;

- to get the access to the information on them, to deny its authenticity, completeness, appropriateness, etc.

State organs and organizations, organs of local and regional self-rule, whose informational systems contain information on citizens, must render this information gratis and without obstructions on the demand of the persons, whom this information concerns, except the cases envisaged by law, and to take measures for preventing the non-sanctioned access to this information. In the cases of violating these demands the Law guarantees the protection of citizens from the damage inflicted by the use of this information.

The provision stated in the next part of the Article seems to be interesting in the context of the request.

The access of unauthorized persons to the information on an individual collected in accordance with the operating laws by state organs, organizations and officials is prohibited.

Yet, when the lists of the debtors with their names and sums are made public, the conditions are obviously created for the passive access of everybody to these data.

The Article also reads that the necessary amount of the data on citizens, which may be obtained in a legal way, must be maximally limited and may be used only for legally envisaged aim.

I reckon that it is difficult to distinguish any legal aim in the demands to pay debts under the pressure of the threats to spread negative information, which would cause damage to reputation and relations with other people. Moreover, there exists the alternative way of settling the property conflicts between the providers and consumers of communal services without the public aspect: the debts may be demanded through a court according to the civil procedure, and this practice must be common in such interrelations. Such problems must be considered in the context of property disputes, and not PR-actions with the use of pressure, which are so habitual and close to our power structures. After all, private persons are most often involved in these conflicts, but not public figures

2)  There is another potential violation of informational legislation directed at the abuse of the rights for privacy of the debtors: use and distribution of the information on the personal life of a citizen without his consent by the person, who owns the corresponding information as a result of the fulfillment of his service duties.

According to part 2 Article 47 of the Law “On information”, the person guilty of such actions must be responsible for the violation of informational legislation. I will not consider in details how the doctrine of bank secrets is stipulated in the national legislation and put into practice, but the attention to the secret of bank deposits in Ukraine and abroad is mush more than to the discussed problem. Yet, if to consider the question attentively, this question concerns the regime of elucidating the information about the finances of private persons, and the majority of citizens do not want this information to be made public.

3)  And finally, how can we protect our rights?

Article 48 of the Law “On information” states that in the case, where the organs of local and regional self-rule and their officials commit the illegal actions envisaged by this Law, these actions may be challenged in the organs of higher level or in court.

The complaints against the illegal actions of the officials are handed to the organs of higher level, to which these officials are subordinated.

If the complaint to an organ of higher level was not satisfied, the interested citizen or juridical person has the right to appeal to court against the illegal actions of the officials.

The Constitutional Court pointed out that the fundamental norms of Article 48 of the Law “On information” are the norms formulated in the first part of the article, which norms envisage the right to appeal against the illegal actions committed by the organs of local and regional self-rule and their officials, as well as by political parties, other citizens’ unions, mass media, state organization, which are juridical persons, and separate citizens to the organs of higher level or to court, at the complainer’s option. The second part of Article 48 specifies the procedure of the appeals against the illegal actions of state officials in the case of turning to the organs of higher level, and part 3 of this Article stresses that the appeal handed to the organs of higher level may not be an obstacle for the following appeal to court. In the context of the entire Article 48 the third part may not be considered as the demand that a citizen may turn to court only after the appeal to the organs of higher level. The direct appeal to court is the Constitutional right of everyone.

In the framework of Article 56 of the Constitution Article 49 of the Law stipulates that in the cases, where the offence inflicted material or moral damage to the citizen, the guilty must recompense this damage on the basis of court decision. The recompensing sum is established by court.

Besides, I want to point out that the new Criminal Code of Ukraine contains Article 182, which reads:

Violation of privacy.

Illegal collection, storage, use and distribution of confidential information about an individual without his consent or spreading this information in public speech, in work of art, which is demonstrated publicly, or in mass media are punished by the fine up to fifty untaxable incomes, or the reformatory works for the term up to two years, or the arrest for the term up to six months, or the restriction of freedom for the term up to three years.

The majority of obstacles and problems (which are mainly formal) appear in the connection with the proofs of the objective side of the potential offence, namely the illegality of the distribution. Thus, it is possible to raise the question in some cases about criminal responsibility of the officials, who take the decisions on behalf of state organs about the divulgence of the information on the debts.

To conclude, I see three possible directions of protecting the citizens, who have communal debts, in the case of the discussed actions on the side of state or communal organs:

1)  to hand the complaint to the officials of higher level;
2)  to bring the suit to court, possibly with the demand of compensation;
3)  to turn with the appeal about the institution of criminal case.

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