Comments and suggestions on the draft laws aimed at reforming the passport system in Ukraine (Draft Laws № 7384, №7384-1, №7384-2
In this country one is asked to show identification in numerous situations. In the majority of these, people use an internal passport, their passport for travelling abroad or their birth certificate. The acts of terrorism which have taken place over the last years in various countries of the world have led a number of countries to undertake a review of their liberal policy with regard to passports, and moving in the direction of making stricter demands. In particular, measures have been taken to add biometric personal details to passports and additional protection for these documents. Despite the fact that human rights organizations (both Ukrainian and international) have responded rather sceptically to the chances of their countries achieving their goals as far as safeguarding national security is concerned by specifically such steps, a number of countries have introduced certain changes in the areas of personal identification. Nor has Ukraine remained aloof from this trend. If at first the innovations related to the creation of a Single Register in which each citizen was to have their own personal registration number which would remain with them from the moment of birth until they died, soon this was extended to encompass changes to the passport system. What is involved here are first and foremost such issues as whether or not one has a single multi-purpose individual registration number, what the list of information to be placed on passports should include, the form of the passport, whether or not there should be separate passports for travelling abroad or official passports, and at what age a person should receive his or her own passport., etc.
It is probably specifically these issues that Draft Laws № 7384, №7384-1, №7384-2 are aimed at resolving. The texts of these drafts have been downloaded from the website of the Verkhovna Rada of Ukraine (www.rada.gov.ua)., and in the following we will consider their content in more detail.
The Draft Law of Ukraine №7384 “On the passport of a citizen of Ukraine” from 19.04.2005, tabled by the State Deputy M. Onishchuk, envisages the introduction of a single passport for citizens to ensure the activity aimed at gaining, changing or suspending civil rights and duties, both on the territory of Ukraine, and when crossing the state borders of Ukraine, and during any period when Ukrainian citizens are abroad.
The Draft Law №7384 suggests combining into one single passport four types of passport-like documentation: the internal passport of a citizen of Ukraine, the Ukrainian passport needed for travelling abroad, a travel document for a child and the certificate confirming Ukrainian citizenship.
It is also suggested that the functions involved with passport preparation and issue be transferred from the Ministry of Internal Affairs to the Ministry of Justice of Ukraine. Article 3 of the Draft Law №7384 envisages that the passport shall be issued when a young person attains the age of partial civil responsibility, that is, passports would not be issued as now when a person turns 16, but at the age of 14. It would also be possible on application from parents or legal representatives to have a passport issued to a young person who had not reached the age of partial civil responsibility. However there is no stipulation as to the minimum age from when such a life-long passport would be issued, and it is also unclear what to do with the photograph in the passport.
Article 5 Part 2 of the Draft Law №7384 stipulates that “the personalization of passports is carried out on a centralized basis by the State Centre for the personalization of documents of the Ministry of Justice of Ukraine”. The question remains as to what precisely is understood by the term “personalization of passports”.
In Draft Law №7384, Article 6, Part 1, it is envisaged that the maximum time period for a passport will be ten years. This provision creates unnecessary overload, in particular of finance and resources, on the Ministry of Justice and makes for certain inconvenience for citizens needing to change their passport. For specifically this reason, serious grounds must be provided for the introduction of this norm.
The explanatory note to Draft Law №7384 states that Draft Law №7384 will be implemented within the framework of taxes allocated by the State Budget for the creation of a Single State Automated Passport System (SAUPS) and for the preparation of documents which confirm a persons identity and citizenship of Ukraine. We would note that in our opinion there will be discrepancies in the amount of taxes established in the State Budget for the creation of the SAUPS, and the amount of taxes for introducing the provisions of Draft Law № 7384 and subsequent functioning of such a passport system. One can mention a number of reasons as to why this will happen, for example, merely the transfer of the functions of a passport system from the Ministry of Internal Affairs to the Ministry of Justice will require significant unforeseen expenditure.
Another interesting question would be who would pay for the passport. If it was the particular citizen, then would this mean that the passport became his or her own property to do whatever they wanted with, and would it means that people would have to pay for a new passport every 10 years?
Article 8, Part 1 of Draft Law №7384 envisages that “on the page with personal data in the passport, the following information about the citizen is obligatory: last name (surname), first name, date and place of birth, .a digitally produced passport photograph, gender, citizenship, registration number in the State register of individuals, information about place of residence, the series and number of the passport, the issue date and the period of validity of the passport, the code of the issuing authority, the personal signature of a citizen who has reached the age of partial civil responsibility, or of one of the young persons parents or legal guardians”. It is interesting that Draft Law № 7384 suggests only adding to the passport the last name and first name of the individual (whereas under Part 2 of Article 28 of the Civil Code of Ukraine it is stated that “an individuals name is made up of their last name (surname), first name and their patronymic, if no other follows from the law or the customs of the national minority to which the individual belongs”). There is also up to the present day no regulation at the level of legislation for the functioning of the State register of individuals. In connection with this the question of recording in the passport such a registration number can hardly, as of today, be considered justified.
Article 8, Part 2 states that “the passport may contain a microchip for additional information (including biometric identification) about the holder of the passport” (my highlighting – Р.Т.). Such wording using “may” is not correct (it should be “contains” or “does not contain”). As far as additional information is concerned, Draft Law № 7384 should clearly identify what additional information could be placed on this microchip, although, in fact, the main problem is determining whether it is at all admissible to provide information on a microchip which the holder of the passport cannot himself or herself read.
Article 8, Part 3 envisages that “on the application by a citizen, additional information may be added to the passport according to established procedure, namely, information about marriage, whether there are children, blood group and Rhesus factor”. We would note that the question of whether to give citizens the right to ask for information about their marital status and children to be added to the passport, or whether to have the addition of such information mandatory, is controversial, although in our opinion, in order to protect childrens interests, it would be worth choosing the latter option.
The Draft Law of Ukraine №7384-1 “On the passport of a citizen of Ukraine” from 12.05.2005, tabled by the State Deputy of Ukraine, Y. Hirnyk, also envisages the introduction of a single passport, annulling in the process foreign and official passports.
The Draft Law also proposes transferring the passport service from the Ministry of Internal Affairs to the Ministry of Justice of Ukraine.
It suggests the inclusion into the new type of the passport, on application from citizens, of their nationality and religion.
The Draft Law does not foresee removing passports from military servicemen or military cadets. We would note that Draft Law of Ukraine №7384-1 has a certain legal and technical failing. It is divided into points and not articles which is not customary in Ukrainian draft law preparation. In addition, points 1 and 6 would have been better, for the purpose of convenience, broken up into several parts.
As far as specific articles (points) are concerned, here too it is possible to make a number of comments.
Point 1, for example, envisages that “the document which provides identification of a citizen of Ukraine abroad or when crossing the State borders of Ukraine, is the passport of a citizen of Ukraine or a diplomatic passport, the identification document of a sailor or the transit papers of a child. These documents are prepared and legally formalized in accordance with the provisions approved by the President of Ukraine on the basis of recommendations of the International Civil Aviation Organization (IKAO Document № 9303)”. Whereas we find (in Point 3) “the passport pages are prepared in the form of a passport book or a passport card in accordance with standardized samples, which are approved by the Cabinet of Ministers of Ukraine”. Such an alternative - a passport book or passport card – adds lack of definition. From the text of the Draft Law it would seem that the passport card would be introduced by the Cabinet of Ministers of Ukraine “in the process of creating a state automated system for registration of the population”. However the Explanatory Note to the Draft Law asserts that “the Draft Law is proposing to keep to the old style of the passport form, that is, its preparation in the form of a booklet, and not a plastic card. This is based ion the need to obtain visas and to add notes to the passport which would be impossible to achieve using a plastic card”. If though one looks at Point 4 where the Draft Law says that “the insertion of additional information into the passport may be carried out also on glued in sheets of a format stipulated by the Ministry of Justice of Ukraine”, and also at the later text of the Draft Law, it becomes clear that the very Draft Law is aimed at introducing passports in the form of a passport booklet. At the same time, if one pays attention to Point 9, in which mention is made of a passport in the form of a passport card (an informational sheet) to which a photograph is attached, as well as information about its holder: including not only last name, first name and patronymic and date of birth, but also a personal number, it becomes clear that the introduction of this information sheet is aimed at providing identification through a personal number which is assigned to the individual by the State automated system of registration of the population. Given the absence of a clear normative-legal basis for such a system, to refer to it in a law is clearly inappropriate, and to create a new model for a passport for Ukrainian citizens, with the undefined prospect of the introduction of passport cards in the suggested form is manifestly not expedient.
In Point 6 (the seventh sentence) it is stated that “the first page or first sheet after the inclusion of appropriate notes and insertion of a photograph can be covered by a plastic coating.” It is our opinion that such provisions add lack of clarity to the conditions for the use of the passport – sticking something on or not sticking it, the first page or the first sheet, who should do the sticking. This question needs to be regulated in more detail or this provision should be removed.
Point 12 allows for the insertion into the passport of a new photograph when the citizen turns first 25, then 45. However it is unclear in this case how one gets around a passport in the form of a passport card, which is after all covered with a plastic coating on both sides.
Over all the Draft Law does not in adequate measure provide answers to any of the questions which arise when introducing a new form of a passport, and requires serious reworking.
The Draft Law of Ukraine №7384-2 “On the passport of a citizen of Ukraine and other documents which provide personal identification and confirm citizenship of Ukraine” from 25.05.2005, submitted by State Deputy of Ukraine, O. Zarubinsky, defines the types of documents which provide personal identification and confirm citizenship of Ukraine, the procedure for their formal preparation, issue, renewal, exchanging different types of document, removal, return or destruction, as well as a register of forms for these documents, the procedure for their preparation and personalization. In particular, attention is paid to the establishment at the level of legislation of the grounds for holding such documents as a passport of a citizen of Ukraine, a personal identification document of a citizen of Ukraine, a certificate of Ukrainian citizenship, a temporary identification document of a citizen of Ukraine, a passport of a citizen of Ukraine for travelling abroad, a travel document for a child, a Ukrainian diplomatic passport, a Ukrainian official passport, a sailors identification document, the identification document of a crew member and the document allowing an individual to return to Ukraine.
We would also note the following major aspects of the Draft Law which are worthy of attention:
The Draft Law retains both internal, and foreign passports, as well as a number of other documents providing personal identification;
The Draft Law envisages the introduction of a personal identification document of a citizen of Ukraine which will go on to replace the passport of a citizen of Ukraine, in particular Part 2 of Article 29 foresees that “this form of identification is a document which is introduced in the place of the passport of a citizen of Ukraine”. At the same time, however, it is not clear what is to be done with the passports (Section II of the Draft Law), nor what the Draft Law sees as the reasons for either the issue of passports or the issue of personal identification documents (Section III of the Draft Law), as well as those with enclosures (Part 2 of Article 35 of the Draft Law);
The issue of new documents is planned only after the expiry of documents still current, and the issue of new documents will be undertaken using expenditure allowed for by the State Budget for the creation of a Single State Automated Passport System, and for the preparation according to centralized procedure of documents which provide personal identification and confirm Ukrainian citizenship;
The application of a personal identification number is envisaged, this being a permanent combination of digits used in the automated processing of personal data (Article 2);
Article 5 of the Draft Law envisages that the information which is provided in the passport of a Ukrainian citizen be designed for visual reading, whereas the information given in a personal identification document of a citizen of Ukraine, a certificate of Ukrainian citizenship, a temporary identification document of a citizen of Ukraine, a passport of a citizen of Ukraine for travelling abroad, a travel document for a child, a Ukrainian diplomatic passport, a Ukrainian official passport, a sailors identification document, the identification document of a crew member and the document allowing an individual to return to Ukraine– should also be able to be read by a machine.
However one should note that besides visual information that the individual who has been issued the document can find out about, in accordance with Part 2 of Article 5 of the Draft Law, the machine-readable information on the personal identification document of a citizen of Ukraine will in addition give information about “the position of the individual in relation to military duty or military service”, and according to Part 3 of Article 5 of the Draft Law the information to be read by machines may (sic!) include in coded form data concerning the shape of the palm, an image of the papillary lines of the fingers, the retinas of the eyes, specific features of the individual when speaking. Although, certainly, from the point of view of law enforcement bodies, such information is crucial when investigating crimes and searching for criminals, the fact that information will be added in coded form to the personal identification document which the individual citizens themselves will not be able to, or will find it very difficult to find out about, is of concern. The question arises in connection with this whether it may not contravene Part 3 of Article 22 of the Constitution of Ukraine which states that “The content and scope of existing rights and freedoms shall not be diminished in the adoption of new laws or in the amendment of laws that are in force.” With regard to military service, as we know, it is planned that over the next few years a professional army will be established. The question is therefore quite reasonable whether such information should be placed in the passport at all.
Over all, aside from a detailed drafting of the conditions and rules for issuing these documents, this Draft Law proposes clauses which it would be hard to agree with. Take note, in particular, of the fact that each of the listed documents must contain such a column as the personal number! In the absence of laws on personal data and on a personal number, this Draft Law cannot be implemented since these issues are directly related to the right to privacy, and the guarantee of this right, and therefore, in accordance with Point 1 of Article 92 of the Constitution of Ukraine must be defined exclusively be means of Ukrainian legislation. Undoubtedly such a personal number without any restriction on its application as regards the purposes for which it can be used, and without prohibition on combining personal data bases with incompatible purposes could be transformed into a mechanism of surveillance over the individual by the State. It is obvious, after all, that this number would be an ideal key for just such a merging of bases.
In concluding this overview of draft laws, it should be noted that, although they envisage something absolutely needed, namely legislative regulation of the existence of a passport system, nonetheless their passing into law could rather than resolving problems in this sphere, actually create new problems, in particular through the increase in the opportunities for the State to monitor any individual who has from birth a personal ID number. Considering the emotions raised over the functioning of a centralized tax code, one can predict that this issue will be of no less interest to the public and will arouse no less heated reaction. However virtually nobody either from the public or from the mass media is planning to discuss the issue of a new passport system, whereas only the issue of the value of this new system can interest concerned citizens of whom in present Ukrainian society there are a fair number.
Ruslan Topolevsky, expert for the Kharkiv Human Rights Protection Group, Lecturer at the Kharkiv National University of Internal Affairs, Candidate (PhD) in Law