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22.05.2004

Ukrainian Laws on Wiretapping and Perlustration (MARCH 1997 REPORT)

   

Article 31 of the Constitution of Ukraine adopted on 26 June 1996 states that ’the confidentiality of everyone’s correspondence, telephone talks, telegrams, and other communications is guaranteed. Exceptions can be made only by court under the circumstances predetermined by law with the purpose of preventing a crime or establishing truth in investigating a criminal case if it is impossible to get information by other ways’.

The procedure of carrying out such exceptional actions is regulated by the Ukrainian Law ’On crime investigation activities’ adopted on 18 February 1992 with changes and amendments adopted during 1992-1993.

The right to carry out criminal investigations that include wiretap and perlustration is given, according to Article 5 of the above-mentioned Law, to bodies of the Ministry of Internal Affairs (MIA), Ukrainian Security Service (USS), frontier troops and the Directorate of State Guard. This right is fixed in the corresponding laws that regulate the activity of the above-listed organizations (Article 10 of the Ukrainian Law ’On militia’, Article 25, Sect.8 of the Law ’On the USS’, and so on).

The reasons for carrying out crime investigation are formulated in Article 6 of the Law ’On crime investigation activities’. These reasons are: sufficient information on crimes committed or being prepared, on accomplices before and after fact, on persons in hiding from investigation bodies or evading arrest or missing, as well as satisfying request of empowered organs to check persons who will get access to state, military or service secrets and at last when there isnecessity in obtaining intelligence data for the sake of security of the state and society. The concepts ’sufficient information’ and ’security of the state and society’ are not defined, and that, in our opinion, creates a pretext for arbitrary actions of security services: these concepts will be interpreted by authorities in their own interests. It should be noted that when the above-listed reasons are not observed, the crime investigation activities are forbidden.

Article 8, Sect.9 of this Law grants the right to the organs carrying out the crime investigation activities to tap communication channels and use other technical facilities to obtain information and to intercept messages.

In accordance with the same Article 8, such actions may be conducted only with the sanction of the General Procurator of Ukraine or his Deputies, Procurator of the Crimean Republic, Procurators of regions, of the city of Kiev and other Procurators of the equal rank, i.e. the circle of Procurators having this power is broad enough. Secret breaking into houses and visual observation in them may be permitted with the sanction of the General Procurator or his Deputies only. Besides, the opportunity of conducting crime investigations in the order agreed with the General Procurator of Ukraine is proclaimed by this Law to be the only purpose of obtaining information. What does this agreement with the General Procurator mean is not clear. Maybe oral consent on the side of the General Procurator is sufficient?

Besides, special units of the MIA and USS for struggle with organized crime have the permission, according to Article 15 of the Law ’On organizational and legal foundations of struggle with organized crime’, additionally use special technical facilities in the following cases:

a) control, recording and documentation of talks and other actions of people when there are grounds to believe them connected with the organized crime;

b) recording and documentation of the fact of the telephone conversation between citizens, sending a letter or a telegram, without disclosing the sense of the telephone conversation, letter or telegram;

c) ensuring personal security and safety of dwelling and property of workers of the above-listed organizations, participants in a trial and their near relations (with their agreement) in the case when they are endangered due to their participation in the struggle with organized crime.

Factual data recorded by special organizations with the use of technical facilities can be used as proofs in the trial.

The Law formulates certain restrictions on conducting crime investigations with respect to several categories of citizens. Thus, according to Part 2 Article 10 of the Law ’On barrister practising’, it is forbidden to wiretap lawyers’ telephone conversations in connection with a crime investigation without a sanction of the General Procurator of Ukraine, his Deputies, Procurators of the Crimean Republic, cities of Kiev and Sebastopol. The wiretap and personal search, the search of luggage, transport, living or service rooms of a deputy is prohibited (Part 2 Article 27 of the Law ’On the status of a people’s deputy of Ukraine’). Breaking into a living or service room of a judge or into his personal or service transport, visual observation, search or taking things from the above-mentioned places, wiretap, personal search, investigation and search of his correspondence, belongings and documents may be conducted, according to Part 4 Article 13 of the Law ’On the status of judges’, only with the sanction of the General Procurator of Ukraine after having started a criminal case against the judge.All the above-listed rules on the sanctions permitting crimeinvestigation activities violating privacy contradict to Article 31 of the Constitution of Ukraine, although it should be noted that Sect.15, Subsect.9 of the Constitution treating ’transitory situation’ retains to the Procurator’s office some rights in accordance with the laws that operated before the introduction of laws regulating state organs activities relative to the control for obeying laws and before shaping the system of pre-trial investigation and enacting laws regulating its functioning. No deadlines are given for terminating the transitory situation.

An opportunity to violate the right for privacy is also contained in the Ukrainian Law ’On information’. Thus, Article 23 of this Law permits in some cases, stipulated by law, to gather information on citizens without their consent. According to Article 31 citizens have the right to know, during the collection of information, which information is being collected and with what purpose; they also have access to this information except in the cases stipulated by law. One of such cases is, of course, the one when the information related to the crime investigation is collected about this very person.

According to Article 9 of the Law ’On crime investigation activities’ in each case when there are sufficient reasons for starting the investigation, a special file is started (except when persons are checked for their trustworthiness to work with state, military and service secrets). If after six months no data are found to witness that the person under investigation is guilty of the crime which had been investigated, then the special file is destroyed. All the information obtained as the result of the investigation concerning the private life, honor and dignity should not be kept and must be destroyed unless it concerns illegal actions.

When rights and liberties of a citizen under investigation are violated or if the connection of the citizen to the crime that has been investigated is not confirmed, the organs conducting the investigation must restore the violated rights and recompense the material and moral losses.

Obviously it does not concern wiretap and perlustration, since citizens are not informed that wiretap and perlustration has been conducted and the special file will be destroyed after six months. The more so that the control over the crime investigation activities is carried out, according to Article 9, by the same organs that conducted these activities (the MIA, USS, Committee of Guarding State Frontiers, Directorate of State Guard).

Article 9 of the Law stipulates the right of Ukrainian citizens and other persons to receive a written explanation about the restriction of their rights and liberties from the organs that conduct crime investigating activities. In the case of wiretap and perlustration this restriction becomes known to the citizen only if the obtained information is made public (or if it is possible to prove in some other way that wiretap and perlustration has been really conducted); then one can defend his rights turning to the court or Procurator’s office following Article 25 of the Law ’On militia’ or Article 5 of the Law ’On the USS’.

The punishment for wiretap and perlustration is stipulated by Article 131 of the CC of Ukraine according to the Law ’On changes and amendments to some legal acts of Ukraine concerning the responsibility for abuses in communications’ of 1 October 1996, No.386/96-BP; the punishment is compulsory toil up to one year or a fine from to 25 to 35 untaxed minimal incomes (from $225 to $315).

At the same time using communications with the aim contrary to state interests is punished, according to the new version of Article 148-3 of the Ukrainian Code on administrative abuses by a fine from 50 to 150 untaxed minimal incomes (approximately from $450 to $1,350; it should be understood that average monthly pay in Ukraine is about $50 and that budget-paid workers get it with the arrears from four months to one year; and, as far as we know, security servicemen get their salary in time). The term ’state interests’, as in any other legal acts of Ukraine, is never defined and certainly will be interpreted by state bureaucrats in their own interests.

This comparison vividly shows the priority of state values and interests over those of citizens.

Thus, if wiretap is not accompanied by other more observable actions of security services and when the suspicious directed to a citizen have not been confirmed, then practically it is impossible to protect oneself against such actions of special services.

It should be noted that we have not found in open publications any mention of such activities (not connected with concrete cases).

In our opinion, any crime investigation activities that violate privacy must be conducted only in connection with an already started criminal case connected with a committed grave crime (the notion of a grave crime is defined in Article 7-1 of CC of Ukraine), and only according to the verdict of the second instance court (i.e. a regional or equal in status court). The citizen who is not proved by court to be guilty must be shown his file, after which the file must be either destroyed or, on the wish of the citizen, put to the archives. Such amendments should be fought for.



The report is compiled by Evgeniy Zakharov and Irina Rapp.

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