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22.05.2004

Wiretapping Mar.1998

   

WIRETAPPING


Section 2 of the Directive of the Supreme Court of Ukraine, No.9 ofNovember 1, 1996, ’On referring to the Constitution inadministering justice’ contains the following statement: ’A warrantfor entering one’ home or some other estate, or for stopping one’correspondence, or for intercepting one’s correspondence in postalor telegraph offices, or for any other interception of informationfrom any communication channels is given by court only. On theresults of considering materials about giving a warrant, which isdone by the court, with keeping the investigation secret, aprocedural resolution is taken. On the basis of this directive, awarrant for wiretapping is now given not by a prosecutor, as it isstipulated in the law on Operative and Detective Actions (ODA),but by the court. However, the law on ODA has not been modified,the Penal Procedural Code contains no directions on the procedureof obtaining a warrant for wiretapping, so it seems that thisprocedure is not based on law, but is regulated by sum sublegal,perhaps secret orders in the special services that carry out ODA.

It should be also noted that the list of the ministries, agenciesand departments that carry out ODA has been substantiallyincreased. The tax inspection has obtained the right for ODA, andundoubtedly the National Bureau of investigations, which is beingcreated now, will obtain it too. It is also worth of noting thatthe new edition of the Ukrainian law on the tax inspection grantsit all the rights, which agencies of the Ministry of Interiorhave,m without stipulating, in fact, no responsibility forviolating law. The tax militia performs all the functions of thecriminal investigation and court: it investigates crimes connectedwith dodging tax, serves as a prosecutor at court, acts as anadvocate, takes a court decision and even mercy the accused bydeciding to keep a case from the court.

It is noteworthy that the Cabinet of Ministers of Ukraine has not worked out the ’Instruction on the State Expert in questions of secrets’, as it was prescribed by the resolution of the Supreme Rada of Ukraine ’On the order of introducing of introducing the law "On state secrets"’as long ago as in the beginning of 1994. And according to Article 8 of this law ’the State Expert in questions of secrets bears full responsibility for lawful and well-grounded decisions to relate some information to state secrets’ and that the above-indicated Instruction ’must be approved by the President of Ukraine’. Our requests directed to the State Committee for protection of state secrets and technical protection of information (Comsecret in Officialese) about who personally is the State Expert in each ministry and agency were left unanswered (as, by the way, all other requests directed to this committee). The situation with the publication of changes and additions into the List of Information being State Secrets (LISS) is scandalous. According to Article 10 of the law on state secrets and the ’Instruction on the procedure of forming and publishinf the LISS’, these changes and additions shall be published not later than three months since the day of the reception by Comsecret of the corresponding decision of the State Expert: records to the LISS must not contain state secrets. Nonetheless, almost all the changes introduced to the LISS after the first publication of the latter on 18 August 1995 have not been published. In the above-mentioned database ’Pravo’ they give numbers and dates of the orders in Comsecret on introducing changes to the LISS, but the very texts are omitted as being secret.

When the law on the Directorate of the state guard was considered the then Head of the USS General-Colonel Vladimir Radchenko said in his interview to the newspaper ’Kievskie Vedomosti: ’Nowadays everyone wants to use the TIP, and it is difficult to understand who eavesdrop on whom. Do we have a police state? In the USS this business is legally grounded. We have created a system of measures preventing any opportunity for the authorities to use investigation methods without sanctions. But I am not sure that such control is set in other services. Thousands of non-government security services have been created in the country, which work without control and without responsibility. Recently we have detained persons who had ID almost identical with those for USS men. Regretfully, even some of our generals signed these documents. We are directing the materials to the prosecutor’s office.’ (’Kievskie Vedomocti, 11 February 1998).

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