Will the observance of human rights become the basic demand at the collection of information from communication channels?
The facts evidence that the control of information is widely practiced in Ukraine. Moreover, the number of the facts of collection of information from communication channels in Ukraine is greater that in other countries. And the crime rate is growing. So, one can say that the methods of work of the empowered organs in this sphere are inefficient.
In the connection with the necessity to improve the system of supervision through communication channels, the Ukrainian Security Service developed, in 2003, the law draft “On monitoring of telecommunications”. On 7 August 2003 the draft was registered by the Supreme Rada of Ukraine. Yet, according to the results of the public hearings held on 26 November 2003, it needs some revision. Besides, the considered law draft is mainly focused on the technical side of the question of collection of information and practically does not regulate the procedure from the viewpoint of observance of human rights and fundamental freedoms.
Representatives of human rights protecting organizations, business circles and public organizations elaborated the alternative law draft “On interception of telecommunications”. This draft was registered by the Supreme Rada on 26 March 2004. The last version of the law draft, which has been discussed on 2 September, takes into account a certain part of remarks stated by representatives of business, public sector and the organs of state power.
This law draft, presented for consideration by MP V. Lebedivskiy, “stipulates legal and organizational principles of realization of interception of telecommunications, protection of constitutional rights and freedoms of Ukrainian citizens, foreigners and apartides, regulates interrelations of subjects in the sphere of interception of telecommunications during the ODA (including the intelligence and counterespionage activities, as well as the struggle with terrorism) and during pre-trial investigation”.
According to the law draft, the interception of telecommunications should be carried out on the basis of the principles of guaranteeing of human rights and fundamental freedoms, such as: interception of telecommunications only on the basis of the grounds envisaged by Ukrainian laws; distinct determination by court of the subject for interception; restriction and distinctness of terms of interception, prohibition of anonymous interception, prohibition of illegal interception of telecommunications.
Besides, a separate section of the law draft “On interception of telecommunications” gives the guarantees of the protection of constitutional rights and freedoms in the sphere of interception of telecommunications. In particular, part 4 of Article 25 of the Law “On interception of telecommunications” envisages the right of the person, who was the subject of legal interception, to obtain from the officials of the organs of interception the written explanations about the restriction, in the course of interception of telecommunications, of his/her rights and freedoms.
The article was also inserted to the law on the necessity of inclusion to the annual report of the Ukrainian ombudsperson of the data about the facts of violations, results of control over observation of human rights and freedoms in Ukraine connected with realization of interception, as well as the conclusions and recommendations directed at improvement of the state of guaranteeing of human rights and fundamental freedoms during realization of legal interception of telecommunications.
Evhen Zakharov (the Kharkov group for human rights protection) pointed out at the hearings that the discussion, which started in the room during consideration of the law draft, clearly revealed the main contradictions in this sphere. “Firstly, our people distrust the USS and are afraid that the special services would “wiretap the opposition”… They cannot entrust to the USS the control over themselves. Secondly, this is a question of priorities. The report was presented about the law draft, which, in fact, describes only technical side of the matter, but not the legal principles. The authors say that this was done deliberately, since the legislators referred to the laws, which already existed, and in which this problem had been already solved”.
Besides, Evhen Zakharov emphasized the necessity of openness of impersonal statistical information about interception of telecommunications. By the words of Mr. Zakharov, one of the judges of the Supreme Court made public the information that in 2002 Ukrainian courts had issued more than 40 thousand sanctions for the collection of information from communication channels. In other European countries the order this number equals to tens, hundreds and even thousands, but not tens of thousands. He also remarked that the obligations imposed by the state in the Law “On telecommunications” on the providers, who had to buy the equipment at their own expense, violated Article 1 of the first Protocol to the European Convention of human rights. So, it is important to prevent the presence of such norm in the Law, which will regulate the process of interception of telecommunications. “There must be norms about the compensation of expenses, everything must be done on voluntary basis”.
A. Baranov, a representative of the Kyiv city administration, told that the secrecy of the fulfillment by special services of their functions was the main contradiction in the sphere of interception of telecommunications. Yet, the society, represented by the Parliament and other civil institutions, are interested in the control of such activities. The main task, he said, is to introduce changes into the law draft “On interception of telecommunications” prepared by the USS and supplement this draft by the mechanisms that would prevent the violations of human rights. The punishment (including criminal) for such violations should be also envisaged.
Anatoliy Gerasimov, a deputy head of the USS, expressed an interesting idea about the law draft. He believes that the law should be adopted anyhow. “Yes, it will be bad, but it will exist”. Well, it is a very frank statement…
The law draft “On interception of telecommunications” was endorsed by overwhelming majority of the participants of the hearings. They also did not discard the possibility of integration of working groups for the development of alternative law draft “On monitoring of telecommunications” (No. 4042) and “On interception of telecommunications” (No. 4042-1).
The hearings adopted the Resolution, which recommended to the Supreme Rada of Ukraine to adopt law draft “On interception of telecommunications” No. 4042-1 in the first reading. In the opinion of the authors of the Resolution, this draft meets the requirements of the European Union, which regulate the activities of law-enforcing organs during interception and monitoring of telecommunications, guarantees the observance of human and citizens rights and is directed to the stable development of the market of telecommunications and the increase of its investment attraction.
So, we hope that the Supreme Rada will not adopt an ineligible law – we already have many such laws. We hope that the Supreme Rada will adopt the law, which will regulate distinctly the activities connected with interception of telecommunications and will contain the sufficient guarantees against misuses, which will guarantee the access of public to the information about the interference in privacy, which will give the opportunity to special services to work efficiently, but without violation of human rights and freedoms.