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Human rights in Ukraine – 2007. 5. The Right to Privacy

   

[1]

The right to privacy is guaranteed by the Constitution of Ukraine, where Article 32 states: “No one shall be subject to interference in his or her personal and family life, except in cases envisaged by the Constitution of Ukraine”. The Constitution also defends specific aspects of privacy. For example, article 30 guarantees inviolability of home (territorial privacy); Article 31 - privacy of mail, telephone conversations, telegraph and other correspondence (communications privacy); Article 32 prohibits the collection, storage, use and dissemination of confidential information about a person without his or her consent  (information privacy), while Article 28 stipulates that no one shall be subjected to medical, scientific or other experiments without his or her free consent (guaranteeing certain elements of physical privacy).

Constitutional norms provide an exhaustive list of grounds for intrusion into privacy and the conditions for such intrusion. However, there remain many inconsistencies between the norms of relevant legislation with the requirements of the Constitution. Legislation largely fails to meet international standards, is contradictory and does not comply with the concept “in accordance with the law”, in the understanding of European Court of Human Rights case law. Another important factor in part arising from the shortcomings in legislation is the application of the law by, for example, law enforcement agencies which is to a large extent directed at infringing the right to privacy.

Although the situation in this area saw some positive moves (for example, abolishing the inclusion of names on railway tickets), the general trend is towards an increase in interference by the State, in particular, where communications and information privacy are concerned.

  On the other hand, Ukraine is not removed from the global assault on privacy in the context of the fight against terrorism and the implementation of new procedure for keeping tabs on individuals (biometric data, the introduction of electronic passports with biometric data, etc). However, whereas in other democratic countries there are legal mechanisms to protect against abuse in this area, in Ukraine such mechanisms either do not exist or are not very effective. Therefore movement in this field on the whole is one-sided with ever more restrictions on the right to privacy being introduced, without the implementation of effective mechanisms of protection.

We should add that Ukraine has not even begun implementing the general measures linked with enforcing the Judgment of the European Court of Human Rights in the case of Volokh v. Ukraine, although the judgment quite clearly indicated the lack of compliance of Ukrainian legislation with the requirements of the European Convention on Human Rights.

 

1. Communications privacy

Legislation does not set down clear grounds for interception of information from communication channels (phone tapping, mobile tapping, Internet tapping or e-mail tracking), or the specific period of time during which such information is intercepted, or the circumstances in which the information should be destroyed and how it can be used.  Safeguards ensuring lawfulness of such interception of com­munication channels are clearly inadequate. As a result of this, no one can monitor the number of permits and the necessity for listening in, and the individuals, in relation to whom such measures have been applied, are not aware of this fact and can, therefore, neither challenge such actions in court nor otherwise defend their right to privacy.[2]

On a number of occasions during 2007 public figures asserted that their conversations had been tapped, for example, Yury Lutsenko[3], members of the Central Election Commission from the coalition[4], and others.

On 7 February the Deputy Prosecutor General V. Pshonka initiated a criminal investigation into a breach of privacy during a conversation between the then Speaker of the Verkhovna Rada, Oleksandr Moroz and the British Ambassador. This followed the publication of a transcript of the conversation on the Internet in January 2007. The prosecutor’s office in Kyiv was instructed to carry out the criminal investigation[5]  The Security Service [SBU] was accused of carrying out the wiretapping, but categorically denied any involvement[6]

On 23 February 2007 the then Minister of Internal Affairs Vasyl Tsushko reported that during a check to establish what special packs they had for wiretapping, including mobiles, and for finding out where the owner of the mobile was at any point in time, it emerged that the Ministry of Internal Affairs (MIA) had only bought 9 such packs with State funding, but 17 had been handed to the SBU.  According to Mr Tsushko, “That suggests that some other sources of financing may have been used to buy special technology.  The possibility follows also that there was unsanctioned purchase and use of such devices, including with the aim of serving he interests of particular political forces or commercial structures. We are carrying out an internal investigation into this[7]

Soon after, according to the Deputy Minister of Internal Affairs and Head of Crime Police, Mykola Kupyansky, during an inventory in one of the MIA operations units, another unregistered system for intercepting mobile communications was found although in accordance with a Presidential Decree such systems had to be passed to the SBU.[8]

Later, in September 2007, Acting Head of the SBU, V. Nalyvaichenko spoke of three cases where illegal outfits were discovered making use of equipment which can be purchased abroad and engaging in wiretapping. In one of the cases, 60 thousand conversations had been tapped.  The conversations had involved heads of regional state administrations, heads of regional police departments and those connected with resolving issues concerning land relations. Mr Nalyvaichenko believes that there are another three or four special wiretapping packs in regions of Ukraine, and several in Kyiv.[9]

On 17 September 2007 the Chernihiv Women’s Human Rights Centre addressed an appeal to the Prosecutor General regarding the fact that there are a number of orders used in the State Department for the Execution of Sentences with provisions which violate the rights and interests of prisoners, including the right to privacy.[10]

They draw attention to the fact that the Internal Regulations[11] allow for the removal of letters written in secret code or script, or using other agreed symbols, as well as those containing information which should not be divulged, and that they had not been sent to the addressee, or passed to the prisoner, but removed and destroyed. Valentina Badira from the Chernihiv Women’s Human Rights Centre believes that this restricts prisoners’ right to correspondence.

The Centre’s appeal also draws attention to the failure to comply with legislation of the new procedure for checking correspondence[12], infringing the norms which prohibit the reading of letters directed to the Human Rights Ombudsperson, the European Court of Human Rights or other international organizations which Ukraine is a member of, as well as to the prosecutor’s office.[13].

This letter was later sent by the prosecutor’s office to the Department for the Execution of Sentences which sent a reply asserting that the above-mentioned provisions did contravene either current legislation or the European Convention for the Protection of Human Rights and Fundamental Freedoms.

In December 2007 the Chernihiv Women’s Human Rights Centre also approached the Ministry of Justice asking that they consider whether the above-mentioned normative legal acts of the Department for the Execution of Sentences comply with Ukrainian legislation and international standards. In January 2008 the Ministry of Justice replied saying that work was finishing on introducing amendments to Orders No. 275 and No. 13[14]

  In December 2007 the Chernihiv Regional Prosecutor initiated a criminal investigation against a local council deputy suspected of organizing wiretapping. According to a report from the Prosecutor Anatoly Vasylevsky, during the course of the investigation criminal investigations had been launched in August 2007 over instances involving the unlawful use of special technical devices for illicitly receiving information and breach of telephone privacy. On 11 December a criminal investigation was initiated against a person believed to be involved in organizing those crimes.[15]

  On 26 September 2007 the Cabinet of Ministers adopted Resolution No. 1160 “On approving the Procedure for obtaining a court order to carry out measures which temporarily restrict human rights and the use of the information obtained”.[16]

This Procedure sets out how a court order is obtained for carrying out operations which temporarily restrict human rights, for example, a warrant to illicitly gain access to a person’s home or other property, to use technical devices to obtain information, intercept communication channels, monitor letters, telephone conversations, telegraph and other correspondence, as well as the use of information obtained during these operations.

However, neither Cabinet of Ministers Resolution №1169, nor the Law “On investigative operations” contains a list of such measures temporarily restricting human rights.

The adoption of such a Resolution effectively legalizes poorly monitored secret surveillance, providing the law enforcement agencies with unlimited access to personal information.

  By European standards an application for access to private information must be sufficiently justified. It outlines the circumstances and explains why it is only in this way that the necessary information can be obtained. At the same time, after the termination of a criminal investigation, or when it has been passed to the courts, a person is informed that he or she was under surveillance. This makes it possible to lodge a complaint against the actions of the law enforcement agencies with the courts. Furthermore, there must be independent control over this activity (usually from the Ombudsperson). None of this is available in Ukraine.   It should be noted that restriction of rights is possible only on the basis of the law. However it is precisely via subordinate legislation that the possibilities are effectively extended for law enforcement agencies to restrict human rights.

For example, an application with the signature of the head of an investigations unit is submitted for consideration to the head of the court of appeal of the region, of the cities of Kyiv or Simferopol, of the Crimean Autonomous Republic or their authorized deputy according to where the case is located. The head of the investigations unit or his deputy gives notification as to whether a court warrant has been issued or turned down to the prosecutor’s office which supervises adherence to the law by the bodies carrying out the investigative operation.

The Procedure approved by the Cabinet of Ministers thus fails to comply with Article 97 of the Criminal Procedure Code (“the enforcement of individual investigative operations stipulated in Ukraine’s legislative acts is undertaken with a court warrant in accordance with an application agreed with the prosecutor’s office from the head of the relevant investigations unit or his deputy”). It makes it possible to receive a court order without prior agreement with the prosecutor’s office supervising observance of legislation of the given investigations unit.

In this situation some lawyers recommend applying “presumption of unlawfulness” in the actions of the lawyers of investigations units and immediately appealing against their actions to the prosecutor’s office responsible for prosecutor supervision over those units.[17]

  In October 2007 the Ukrainian Internet Association called on the President to suspend the force of the Cabinet of Ministers Resolution from 26 September “On approving the Procedure for obtaining a court order to carry out measures which temporarily restrict human rights and the use of the information obtained”. It sent the appropriate letters outlining the unlawfulness of this Cabinet of Ministers Resolution and need to revoke it to the Ministry of Justice, the State Committee of Ukraine for Business Enterprise, the Prosecutor General, the Supreme Court, the Cabinet of Ministers, the Human Rights Ombudsperson, as well as an open letter to the President.

Later the Human Rights Ombudsperson Nina Karpachova sent a letter to the then Prime Minister Viktor Yanukovych asking that Cabinet of Ministers Resolution № 1169 from 26 September be revoked. .In her view the Resolution was in contravention both of Ukrainian legislation, and of Article 8 of the European Convention for the Protection of Human Rights. She believed that if in the above-mentioned legislative acts the Government perceives certain gaps on issues which the above Procedure touches on, then these shortcomings can only be removed by tabling the appropriate legislative suggestions in the Verkhovna Rada.[18]

However the Ministry of Justice rejected these objections with an extensive commentary on the reservations expressed about the Resolution. It also asserted that the Cabinet of Ministers “have not only unified the procedure for investigations units of different authorities receiving warrants, but having removed the stamp restricting access from official acts, have taken a significant step towards improving openness and transparency in the activities of the law enforcement agencies. This will give the public the opportunity to carry out more effective democratic control over the work of investigations which will in turn promote their greater efficiency and implementation of the functions with which they have been entrusted”[19]  At the beginning of 2008 this Resolution remained in force.

No exact figures are known for the scale of wiretapping in Ukraine since official statistics are not provided by State bodies. This is because in 2005 such information in generalized form was, at the initiative of the SBU, added to the register of information constituting a State secret (generalized data on investigative operations

It became known earlier that in 2002 courts had issued more than 40 thousand warrants. It was also officially confirmed that in 2003 the Appeal Court of the smallest region in Ukraine, the Chernivtsi region, had issued 823 warrants for the interception of information from communications channels.[20]  According to information from the Prosecutor General’s Office, the number of such warrants by September 2005 was in excess of 11 thousand, with the results of the wiretapping having been used in only 40 cases.[21] .

In September 2007 the Acting Head of the SBU V. Nalyvailenko stated that in a week the courts give  (obviously the SBU – author) three – four warrants for wiretapping, for example, in connection with suspected involvement in terrorist activities, illegal arms trafficking and narcotics..[22]  The total number during the year would thus come to around 200 warrants.

By submitting information requests as part of the project “Monitoring adherence to Article 8 of the European Convention on Human Rights in Ukraine”, undertaken by the civic network “OPORA” with the support of the International Renaissance Foundation, it was ascertained, for example, that during three quarters of 2007, the Court of Appeal of the Transcarpathian Region, which is one of the least populated in the country issued 323 warrants to intercept information from communications channels.

200 applications were submitted by police bodies in the Crimea during 2007 for warrants to intercept information from communications channels. During the first three quarters of 2007 344 applications were made in the Kharkiv region.  Moreover as well as the Ministry of Internal Affairs, warrants are also received by the SBU, the tax police and other law enforcement bodies. It is also clear that the number of applications only approximately indicates the actual number of warrants issued.

If we thus take the data for one region and extrapolate it to the scale of the whole country, we can assume with justification that the approximate number of warrants for interception of information from communications channels come to around 12 thousand permits a year. We would stress that the error factor must be considered since there are no exact figures for all regions. However the figures seem likely since the date correlates with that of the Prosecutor General for 2005.

That is, it would seem that since 2002 the number of court warrants has become more than three times smaller, however over the last three years the number has remained stable – around 12 thousand per year. This figure is considerably higher than in countries of Western and Central Europe.

There can be no doubt that data on the depersonalized number of court warrants throughout the country for interception of information from communications channels, just as for the number of cases of interception of correspondence and searches carried out, should be available to the public whereas the authorities sometimes unlawfully (since information concerning observance of human rights should be open) view this as confidential information which is in the possession of the State and has the stamp “For official use only”, etc, and may not therefore be shown to members of the public.

In 2006-2007 three sets for monitoring cellular communication networks were removed, as well as around 50 devices for tapping premises, including the offices of political parties, of heads of the local authorities and on structures of information activity.  More than 40 people faced administrative charges. Eight criminal investigations were initiated in the regions for unlawful use of such equipment.[23]

  The SBU in order to combat cyber-terrorism is carrying out measures on monitoring the use of the Internet and regulating its Ukrainian segment. Despite the lack of legal definition of the powers of the SBU in this sphere, it is continuing to introduce the technical possibilities for exercising this surveillance over use of the Internet.

  According to Order No. 122 of the State Committee on Communications from 17 June 2002, only Internet providers which have installed a state system of monitoring (analogous to the Russia SORM – “System of ensuring investigative activity”) and have received the appropriate certificate from the SBU may provide access to global information networks to institutions and organizations which receive, process, circulate and store information which is the property of the state.  The Ministry of Justice of Ukraine, in response to a letter from the Internet Association of Ukraine regarding the legality of Order No. 122 of the State Committee on Communications stated that it was legal, however later, on 23 November 2005, this time answering the same question posed by the UHHRU, it declared it unlawful

  Despite this, all the activities based on this Order are still being carried out. No equipment has been dismantled and the list of providers is effectively still in force.

  UHHRU approached the Security Service, asking on what grounds the Internet was continuing to be monitored when Order No. 122 had been revoked. The reply from the SBU stated that such activities were on the basis of the Law on investigative operations. However, given the functioning of a monitoring system, doubts arise as to whether constant monitoring is really carried out solely within the boundaries of investigative operations launched. The point is that the specific nature of the monitoring demands constant surveillance of traffic, and not selective surveillance, largely of a specific person.

3. Information privacy and personal data protection

Ukraine has still not ratified the Council of Europe’s Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, No. 108, although the Action Plan Ukraine – EU for 2005 stipulates the ratification of Convention No. 108 and the Additional Protocol to it, with the necessary amendments introduced at the same time to domestic legislation. 

In March 2006 the Verkhovna Rada passed in full the draft law “On Personal Data Protection”[24]. However the President used his power of veto. The law was reworked by the Ministry of Justice on the basis of a draft Law “On Personal Data Protection” which had during 2005-2006 been drawn up by a working group attached to the Ministry of Justice. This working group had included members of human rights organizations, and it took into account most European standards of personal data protection. On 9 January 2007 the draft law was passed in a significantly reworked and improved version and having taken into consideration the President’s suggestions. However, without any particular grounds, the President once again vetoed the draft.

Meanwhile, without a normative base for personal data protection, discussion of draft laws has been continuing in parallel to the actual creation of a Single State Automated Register of Individuals (SSARI), as well as other state registers containing personal data.  Parliament has in past years repeatedly rejected draft laws on creating such a Register

 In response to this and despite the lack of any legal grounds, on 30 April 2004 the then President issued Decree No. 500  «On the Creation of a Single State Register of Individuals» which sanctioned the creation and running of a Single Register  The Decree empowered the Ministry of Internal Affairs to create and maintain this single register on the basis of a Single State Automated Passport System (hereafter – SSAPS),  based on a concept approved by a Cabinet of Ministers Resolution back in 1997

  In order to carry out the work on creating SSAPS, the Ministry of Internal Affairs appointed the private company “Corporation “SSAPS”. This meant that personal data which Ukrainian citizens passed to a government agency were then passed on to a private structure. Later the MIA management also empowered this private structure with the issue of passport forms, the State Automobile Inspection [traffic police] database, and so forth

  The main point of SSAPS is to create a single automated database about members of the public whereby all information about any Ukrainian citizen gathered by any government body or State institution will be held under one number. Such a system will inevitably lead to violations of privacy. Precisely for that reason, the Hungarian Constitutional Court back in 1991 declared an analogous system unconstitutional. There is no such system in any developed democratic country. Yet parliament has begun creating it. Effectively, as can be seen from the above, the system is being created in practice, without any proper legal grounding.

  However parliament did not begin its legalization by legislative means. On 23 February 2007 the Verkhovna Rada issued Resolution № 719-V which introduced amendments to the Verkhovna Rada Resolution “On approving the provisions on the passport of a Ukrainian citizen and birth certificate” № 2503-XII from 26.06.1992., which approved the Provisions on a passport for Ukrainians to travel abroad.[25] This foresees that additional information (in particular, biometric) about the holder of a passport for travel abroad, the contact of which is determined by current legislation, may be reflected by a cordless electronic carrier built into the document.

In connection with this President Yushchenko signed Decree № 399/2007 from 12.05.2007 "On declaring void some decrees of the President of Ukraine”, which cancelled his previous decrees on this subject, namely:

Presidential Decree “On the passport of a Ukrainian citizen for travelling abroad” № 491 from 28.10.1993;

Presidential Decree “On measures for creating a State Information System for a register of individuals and their documentation” (aside from Article 1 as regards the Description of the internal left side of the cover of a child’s travel document) № 1218 from 14.12.1996.

Previously issued passports for travel abroad, as well as passports organized with the use of the previous types of passport forms, are valid until they expire.

On 26 June 2007 Cabinet of Ministers [CVU] Resolution №858 from 26.06.07 “On approving a technical description and form for the passport of a Ukrainian citizen for travelling abroad and amendments to some CMU acts” envisaged the processing in centralized manner of passports only of the new type. The current CVU Resolution №450 from 2 April 2002 “On approving the Procedure for centralized processing, preparation and issue of a passport of a Ukrainian citizen for travelling abroad” was cancelled. This had stipulated that “centralized processing of passports for foreign travel in the regions shall be introduced as centres are created for the State information system for a register of individuals and their documentation”.

Two weeks before this (!), on 11 June 2007 MIA Order № 194 was issued. With this Order, the Acting Minister of Internal Affairs M. Korniyenko made Deputy Minister V. Fatkhutdinov responsible for implementing a general contract between the MIA and the SSAPS consortium for preparing new passports for foreign travel.

The issue of passports for foreign travel was thus artificially blocked, and an artificial demand created led to mass infringements of people’s rights especially given that this all occurred during the summer vacation period. Some 60 thousand people were waiting for passports

It seems to us that the objective in creating such a situation was to discredit the State enterprise “Resources – document” which carried out accelerated issue of passports, its subsequent liquidation and the full takeover of its work on issuing passports by the private concern “SSAPS”.

In November 2007 the Internet newspaper “Business” published a journalist investigation into these events.[26]  Later, during the night from 7-8 December 2008, the author, journalist Maxim Birovash was attacked. He says that the assailants stole internal correspondence of the Ministry of Internal Affairs, protocols of meetings of the commission on passport provision, and other documents which he was due on 10 December to present during a court hearing in connection with a civil suit brought by the Chair of the Consultative Council of the concern SSAPS, Yury Sidorenko.[27]

UHHRU believes that one of the main lobbyists for passing these normative legal acts was Vasyl Hrytsak. It was for this that he was awarded the UHHRU anti-prize “Thistle of the Year” for worst human rights offender.[28]

At the beginning of 2007 parliament passed the Law “On the State register of voters” which came into force on 1 October 2007. It should be noted that this law is an extremely positive move from the point of view of safeguarding the right to privacy, although it does not contain procedure for independent control over the use of this register.

The law envisages the creation of a single State register of voters which will include the personal data of individuals entitled to vote and the use of this when drawing up electoral lists during elections at any level, and referendums. The register will contain the following: 1) last name, first name and patronymic (with an indication to any changes made to these names); 2) date of birth; 3) place of birth; 4) place of residence; 5) date of nationalization; 6) information as to whether the person is mentally fit.  

  The single register will be made up from the national electoral list, formed by merging regional and local electoral lists. The lists will be placed in an electronic system and input into one automated database which will be supported by the Central Election Commission.

  On 6 July 2007 the Ministry of Employment and Social Policy issued an Order “On using temporary procedure for taking into account and using information regarding people crossing the border during the period for receiving State and social payments”. Although officially the purpose for the check was to avoid people working abroad from receiving social benefits, some observers considered this to be an attempt at obstructing labour migrants from taking part in the elections.

On 11 September 2007 the Ministry of Employment and Social Policy put out Order №473 On some measures for carrying out an experiment on exchanging information in order to prevent the unlawful divulgence of information obtained when information is passed between the Ministry of Employment and the Administration of the State Border Guard Service regarding people who during the period for receiving State and social payments were crossing the State border or were outside the country.

The Minister instructed the Director of the State Employment Centre, the Minister of Employment and Social Policy for the Autonomous Republic of the Crimea, heads of regional departments of labour and social protection within the State administrations of the regions, Kyiv and Sevastopol, to take under their personal control issues regarding maintenance of confidentiality when using information about the above-mentioned category of people, and prohibited disseminating it and passing it to third parties.

  On 25 September 2007 the Central Election Commission passed a resolution on explaining the application of the Law “On the elections of National Deputies of Ukraine”, with regard to specification by precinct electoral commissions [PEC] of the electoral lists on the basis of information received by district [okruzhni] electoral commissions from the State Border Guard Service. For example, district electoral commissions which received information from the Border Guard Service were to pass this on, printed on paper, to the PEC. A meeting of the PEC had to make a decision for each individual who had gone abroad and not returned within three days of the elections. On 26 September the Central Election Commission revoked this resolution.

On 28 September a resolution came into effect issued by the Kyiv District [okruzhny] Administrative Court over a civil suit brought by the bloc of political parties “Our Ukraine – People’s Self-Defence” calling for the actions of the Ministry of Internal Affairs to be declared unlawful. The resolution states that the MIA acted unlawfully in gathering, retaining, using and disseminating personalized information about individuals of a confidential nature, namely, regarding their actions in crossing Ukraine’s border. It also says that the MIA “without legitimate grounds approached the management of the State Border Guard Service Administration for personalized information about the movement abroad of Ukrainian citizens, this demonstrating unlawful action carried out by the MIA”..[29]

Such behaviour from the authorities violates the fundamental principle for treatment of personal information. For example, legislation prohibits the use of such information for any other purpose than that for which it was obtained. Such behaviour therefore presents a serious threat to privacy and in a democratic country is only possible on the basis of a court order in each individual case.

In autumn 2007 a single computerized database was created in the Lviv region for orphans, children deprived of parental care and children from families in crisis. The all-Ukrainian database is designed to simplify adoption procedure. Almost 5 thousand children living in Lviv and the region have thus far been added to the register. Half of them are in need of care or adoption. The new database contains full information and a photograph of each child. The creation of such a database in the absence of the relevant law on personal information poses a threat to the right to privacy of these children.

  Information about individual business people is gathered at present in the Single State Register of Legal Entities and Individuals – Entrepreneurs [the Register] created in accordance with the Law “On state registration of legal entities and individuals – entrepreneurs”. This was created and is run by the State Committee on Regulatory Policy and Entrepreneurship which acts as its manager and administrator. State registrars carry out State registration and input information into the Register according to the place of residence of the individuals – entrepreneurs.

  With regard to the above, we believe it necessary to insist on adherence to the following international standards on an individual identification number: different numbers must be kept separate in different databases; it is not acceptable to create a SINGLE number for gathering all information about an individual; numbers must be used SOLELY for the purposes for which they were created, and their use must be stipulated in a Law on Personal Data Protection. There should also be an independent State structure which should monitor the collection, storage and use of personal data (this function is usually entrusted to the Ombudsperson).

At the present time the main electronic classifier on the basis of which personal data is gathered and processed is the identification code which is issued by the State Tax Administration. The sphere of its use is constantly being expanded and far exceeds the aim for which it was introduced, that is, tax registration. Without an identification code one cannot legally find work, have access to pensions, exercise ones right to education, receive a student grant or unemployment benefit, organize concessions, open bank accounts, register business activities, etc.

Therefore in reality we have a situation where the administrative practice of State executive bodies is knowingly violating the Law of Ukraine on a Single Register of Individual taxpayers, and is using the tax number for purposes not envisaged in by this Law.

Another serious problem is that the authorities and State institutions regularly divulge confidential information about individuals. It is a standard occurrence for information to be disclosed about a person’s state of health, their income and so forth.

  According to SBU information from 29 March 2007 the unlawful activities were thwarted of a group which had been selling and disseminating information on restricted access held in State electronic information resources – registers and databases. There is particular demand for the databases of the tax bodies, the State Customs Service and the MIA State Automobile Inspection [traffic police].  During 2006 28 attempts to sell databases of State institutions and organizations containing confidential information held by the State were thwarted.[30]

This state of affairs is seen by experts as being due to the lack of clarity of the basis legal mechanisms for gathering information about individuals. This includes first and foremost the failure to stipulate requirements on protecting personal data during computer processing in State information & telecommunications systems. There are no criteria for what information can be justifiably gathered, especially with regard to those engaged in economic activities involving non-State forms of ownership.

In autumn 2007, as part of the campaign against those not paying for communal services, the newspaper “Irpin Herald” printed a huge list of the people with the largest arrears, together with their home addresses.[31]  This was an unprecedented intrusion into the private life of the people mentioned in the publication.

In March 2002 the Kyiv Prosecutor’s office initiated a criminal investigation against Dmytro Chobit over intrusion into the private life of Viktor Medvedchuk. In July 2002 Viktor Medvedchuk lodged a civil suit with the Pechersky District Court in Kyiv in defence of his honour and dignity, as well as demanding moral and material compensation for losses inflicted by the author and publishers of the book “Narcissus”. On 7 April 2004 the court allowed Medvedchuk’s suit, finding Chobit guilty of intrusion into the personal life of the Head of the President’s Administration. Dmytro Chobit appealed against this ruling, first in the Kyiv Court of Appeal, and later in the Supreme Court. At the end of 2007 a Supreme Court panel of judges rejected the demands in Medvedchuk’s suit stating that “political figures inevitably expose themselves to meticulous coverage of their words and deeds and must be aware of this.”  The Supreme Court thus differentiated between the right to inviolability of the personal life of private and public individuals. Since the claimant could not prove that the information had been disseminated with malicious intent, and political figures are open for discussion, in this case the Supreme Court upheld Dmytro Chobit, applying the standards of the European Court of Human Rights: the judiciary may not restrict the right to discuss information of public importance.

 

4. Territorial privacy

During 2007 39, 384 applications were submitted to the courts by law enforcement agencies to carry out searches of people’s homes or other property. 171 of these were returned without examination. 37, 736 were allowed, meaning that the courts turned down 1, 477 applications for search warrants, or around 4% of such applications.

The courts also examined 22, 772 applications from law enforcement agencies on removing things, including documents containing State or banking secrets from.people’s homes or other property. The courts met 21, 579 applications, thus rejecting 1, 193 (or approximately 5.2% of those submitted.)

In addition, the courts considered 9, 193 applications from law enforcement agencies to inspect homes or other property. 8, 914 applications were allowed, with 279 (around 3%) being rejected.[32]

  A problem remains with the procedure for carrying out searches or removals, not in homes but other property of a person since these actions may be carried out without a court warrant which does not comply with international standards.

 

5. Other aspects of privacy and respect for family life

One of the problems concerning the right to privacy is the positioning of video surveillance cameras in public places. Quite often people have no idea that they are under video surveillance. For example, in autumn 2007 the Lviv City Council, together with the management of the Central Department of the MIA Department for the Lviv region decided to establish video surveillance cameras in 29 schools in Lviv and 19 such cameras on Market Square and in the building of the City Council. Due to the lack of legislative regulation for such gathering of information, there is a risk that the right to privacy will be violated.

According to European standards video surveillance may be carried out however it must comply with the following requirements:

Areas in which video surveillance is carried out should be systematically marked out;

An independent body at national level should be created to administer independent control over the establishment of surveillance, as well as over the storage and use of personal data.[33]

In cases involving adoption, Ukrainian legislation still fails to take the interests of the adopted child within the context of the right to private life into consideration. Confidentiality of adoption is guaranteed by the fact that the adoptive parents may register themselves as the child’s biological parents (Article 229 of the Family Code), change the information about the place of birth within 6 months of the child’s birth (Article 230 of the Family Code), while disclosure about  a case of adoption is subject to criminal liability. (Article 168 of the Criminal Code of Ukraine).  However the right of a child to know his or her biological parents (Article 7 of the UN Convention on the Rights of the Child) and the right to preserve his or her identity (Article 8 of the UN Convention on the Rights of the Child) are entirely forgotten. Even more, the law contains provisions for keeping the adoption secret from the child him or herself. (paragraph 2 of Article 226 of the Family Court).[34]

There are also problems with compulsory medical examinations. For example, there is centralized vaccination of children and if a child has not had these vaccinations, he or she is not admitted to a school or kindergarten.

On 30 November 2007 the Ministry of Health published Letter № 4.25-58/3095 on the admission of children who have not received vaccinations to preschool institutions. It states that “in Ukraine measures on prophylactic vaccinations have been introduced at State level. According to Article 12 of the Law “On the protection of the population against infectious diseases”, prophylactic vaccinations against diphtheria, whooping cough, measles, polio, tetanus, tuberculosis are compulsory and included in the vaccination schedule. Pursuant to Article 15 of the said Law admission of children to educational, pre-school, sanatorium and other children’s institutions shall be carried out on presentation of the relevant documents from a healthcare institution issued on the basis of a medical examination of the children, if there are no medical reasons precluding admission, as well as if prophylactic vaccinations have been carried out in accordance with the vaccinations schedule.  Children who have not received prophylactic vaccinations in accordance with the vaccinations schedule are not permitted to attend institutions for children. Pursuant to Article 41 of this Law, individuals responsible for infringing legislation on the protection of the population against infectious diseases bear liability in accordance with Ukraine’s laws” [35] 

However the very procedure for vaccinations is not uncontroversial. For example, opponents of vaccinations cite domestic legislation asserting the need for such vaccinations only with the person’s consent, and in the case of a child under the age of 15, with the consent of his or her parents. As far as children not being allowed to attend school, etc, they maintain that this is in contravention of the right to education enshrined in the Constitution.[36]  During the year this issue was covered by the press on a number of occasions. [37]

During 2007 the courts received 2, 555 applications for compulsory hospital examinations for those accused of a crime (according to Article 205 of the Criminal Procedure Code.). 2, 478 were granted, with 77 applications (around 3%) turned down.[38]

During 2006-2007, UHHRU received numerous complaints from prisoners about not being able to marry or get divorced while serving their sentence.  In order to do either of these things, legislation stipulates that a person must personally appear at the State Register Office according to his or her place of residence. This is obviously impossible for prisoners especially if it has to be done according to their old address and not where they are serving their sentence.  The personnel of the Register Office refuse to come to a penal institution, while the penal administration refuses to transport the prisoner to the Register Office. This situation presents a violation of the right to marriage and family life.

UHHRU appealed to the Ministry of Justice to resolve this problem on the basis of normative acts regulating the work of Register Offices. The Ministry of Justice entirely agreed and acknowledged that there was a problem. On 21 November 2007 an Order of the Ministry of Internal Affairs and the Ministry of Justice issued Order № 1154/5 «On amendments to the Rules of registration of acts of civil state in Ukraine” which effectively regulated the situation and resolved the problem.[39]

 

6. Recommendations

1)  Ratify the Convention of the Council of Europe No. 108

2)  Adopt a law “On personal data protection” complying with modern European standards for the protection of privacy. Legislation on automated processing of personal data must reflect the following principles:

-  Different codes (databases of different authorities)must be used separately, and not allowing a SINGLE code for gathering all information about a person;

-  A person must know what information is being gathered on any given database and have the right to change that information;

-  The codes must be used ONLY for those purposes for which they were created;

-  Their use must be allowed for in the Law on protection of personal information;

-  Exchange of information gathered between the authorities must be clearly regulated and carried out on the basis of a court order with the person both notified and able to appeal against the actions.

-  The administrative practice of unlawful use on the taxpayer’s identification number (code) for other purposes not envisaged by legislation should be stopped. The use of the concept “personal number”, the use of which is not envisaged by any law should also be stopped.

3)  Revoke Verkhovna Rada Resolution from 23 February 2007 № 719-V on amendments to Verkhovna Rada Resolution “On approving the provisions on the passport of a Ukrainian citizen and birth certificate” № 2503-XII from 26.06.1992 and Cabinet of Ministers Resolution №858 from 26 June 2007. “On approving a technical description and form for the passport of a Ukrainian citizen for travelling abroad and amendments to some CMU acts”

4)  Revoke Cabinet of Ministers Resolution №11698 from 26 September 2007 “On approving the Procedure for obtaining a court order to carry out measures which temporarily restrict human rights and the use of the information obtained”.

5)  Pass a law “On interception of telecommunications” which will allow for independent monitoring of the activities of the Security Service of Ukraine in intercepting communications, publishing an annual report with depersonalized information regarding the interception of information from communications channels in the course of investigative operations. Remove generalised data on investigative operations from the “List of Items of information which constitute state secrets”.

6)  Introduce amendments to legislation clearly stipulating procedure for interception of communications (wiretapping of landlines and mobile telephones, surveillance of electronic mail, control over checks on information on the Internet) with the following:

-  Procedure for court warrants for such activities and the time limits they are valid for;

-  Procedure for periodic review by the court of the warrant issued;

-  Information to the person about  communications having been intercepted after the procedure is over and a decision has been taken not to institute or to terminate criminal proceedings;

-  The right of an individual to appeal against these actions and demand compensation if the actions of the authorities were unwarranted;

-  Procedure for storage and later use of the data obtained.

7)  Establish procedure in criminal proceedings making it possible to appeal against the actions of law enforcement agencies in searching a person, his/her home or workplace, as well as providing the possibility of seeking redress if this procedure is infringed

8)  Introduce a norm envisaging annual publication by the law enforcement agencies of the total number of court warrants for interception of information from communications channels and permits for interception of correspondence and searches;

9)  Stop the intrusion of state executive bodies into the activities of those involved in providing Internet services by forcing them to install equipment for the interception of telecommunications;

10)  .The Ministry of Internal Affairs must stop the unwarranted collection of sensitive personal information about individuals (information regarding their political views, religious beliefs, sexual orientation, etc);

11)  Abolish the licensing of IP-telephone systems

12)  Change legislation on keeping adoption information secret even from the child involved. Exceptions should be made to the provisions of legislation which establish absolute confidentiality of adoption (Articles 226, 229 and 230 of the Family Code; Article 168 of the Criminal Code);

13)  Change Order No. 13 of the State Department of Ukraine for the Execution of Sentences from 25 January 2006 “On approving instructions for checking the correspondence of people held in penal institutions and pre-trial detention centres”, removing the requirement to place the full address of the penal institution on the envelope of outgoing mail, and bring its provisions into line with the requirement of privacy of correspondence to the Ombudsperson, prosecutor’s office and international organizations which Ukraine is a member of.

14)  Pass a law and other normative legal acts protecting the rights of patients, in particular as regards compulsory medical procedure and confidentiality of information about a patient’s condition

15)  Amendments should be made to legislation and legal practice to eliminate the discrepancy between the compulsory nature of vaccinations in order that a child may attend children’s institutions and the right to education for children whose parents have consciously refused to allow such vaccinations, especially where the vaccinations are contra-indicated for the child and could harm him or her.

 



[1]  By Ruslan Topolevsky and Volodymyr Yavorsky, UHHRU

[2] “Human Rights in Ukraine – 2004, Human Rights Organizations’ Report” – Kharkiv: Folio, 2005. The report is available at www.helsinki.org.ua and www.khpg.org.ua

[3] Lutsenko feels that he’s being watched // UNIAN information agency http://www.unian.net/ukr/news/news-189083.html.

[4]  SBU carried out surveillance not of members of the Central Election Commission, but of the situation in general // UNIAN information agency http://www.unian.net/ukr/news/news-199679.html.

[5] Deputy Prosecutor General Viktor Pshonka has initiated a criminal investigation into violation of privacy of telephone conversations committed against a public figures // Report from the Prosecutor General’sofficeon5February2007 http://www.gpu.gov.ua/ua/news.html?_m=publications&_t=rec&id=87158&fp=331.

[6]  SBU carries out searches of its departments // UNIAN information agency: www.unian.net

[7] http://www.rada.gov.ua/zakon/skl5/3session/STENOGR/23020703_12.htm

[8]  MIA finds yet another unregistered wiretapping pack // UNIAN information agency  http://www.unian.net/ukr/news/news-186260.html

[9] Valentin Nalyvaichenko  «SBU isn’t a coin able to please everybody” // “Glavred” Internet publication http://www.glavred.info/archive/2007/09/03/101748-6.html

[10] V. Badira Norm-creating activities of the State Department for the Execution of Sentences – under public control // http://www.khpg.org/index.php?id=1201530418

[11] Item 43 of the Order of the State Department for the Execution of Sentences №275 from 25.12.2003 (with subsequent amendments and additions) which approves the Internal Regulations of penal institutions.

[12] Item 2.4of Order of the State Department for the Execution of Sentences №13 from 25.01.2006, which approves instructions on checking correspondence.

[13] Besides legislative norms, this is also Order of the State Department for the Execution of Sentences № 275 from 25.12.2003.

[14] V. Badira Norm-creating activities of the State Department for the Execution of Sentences – under public control // http://www.khpg.org/index.php?id=1201530418

[15] Criminal investigation launched against deputy for wiretapping // о справу проти депутата за прослуховування телефонів// UNIAN information agency: http://www.unian.net/ukr/news/news-227205.html, «Black grave // Dzerkalo tyzhnya [the Weekly Mirror] № 41 (670) 3 — 10 November 2007, http://www.dt.ua/1000/1050/61009.

[16] Website of the Verkhovna Rada of Ukraine http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=1169-2007-%EF

[17] New court order procedure for carrying out measures which temporarily restrict human rights // Firm of Bar Lawyers  D&U Partners, http://www.du-partners.com/ua/actual_matters/view/14/

[18] Nina Karpachova “The Cabinet of Ministers Resolution which makes it possible to intrude into people’s private life, is in contravention of not only the Ukrainian Constitution, but also the Convention of the Council of Europe. Message from the Press Service of the  Human Rights Ombudsperson і: http://www.ombudsman.kiev.ua/pres/releases/rel_07_11_09.htm

[19]  Commentary from the Ministry of Justice regarding the Cabinet of Ministers Resolution from 26 September “On approving the Procedure for obtaining a court order to carry out measures which temporarily restrict human rights and the use of the information obtained” http://www.minjust.gov.ua/0/11296

[20] Yevhen Zakharov:: “Investigative activities and privacy of means of communication”, available in English at: www.khpg.org.ua.

[21]  Prava Ludyny [Human Rights], No. 28, 1-15 October 2005

[22] Valentin Nalyvaichenko  «SBU isn’t a coin able to please everybody” // “Glavred” Internet publication http://www.glavred.info/archive/2007/09/03/101748-6.html

[23] Deputy Head of the SBU “There is no talk of total wiretapping in the Cabinet of Ministers Resolution” // The newspaper “Dzerkalo tyzhnya”, № 42 (671) 11 — 18 November 2007, http://www.dt.ua/1000/1550/61106/

[24]  Draft Law No. 808 from 25.05.2006 (from 10.01.2003 No. 2618  prior to the 2006 parliamentary elections). Authors: M. Rodionov, S. Nikolayenko, I. Yukhnovsky and P. Tolochko).

[25] Official Herald of Ukraine № 16 2007, http://www.gdo.kiev.ua/files/db.php?god=2007&st=585.

[26] "Beyond the passport” - "Business", №43 (770), 22.11.2007: http://www.business.ua/i770/a23851/; “SSAPS” and collapse" - " Business ", №40 (767), 01.11.2007: http://www.business.ua/i767/a23798/; "So who is lying then, General Hrytsak?”” - " Business ", №46 (773), 12.11.2007: http://www.business.ua/i773/a23919/

[27]  When assailants sell police protocols (in English)  http://www.khpg.org.ua/en/index.php?id=1197931105

[28] UHHRU website: http://helsinki.org.ua/index.php?id=1196616829

[29] On the unlawful gathering by the Ministry of Internal Affairs of confidential information about an individual – statement from the Bloc’s lawyers // Press Service of the Bloc “Our Ukraine – People’s Self-Defence” http://www.razom.org.ua/ua/news/18964/

[30]  On protection of State electronic information resources // SBU Press Centre report: http://ssu.gov.ua/sbu/control/uk/publish/article?art_id=58025&cat_id=39574.

[31] IRPENIADA: Deputy of the Regional Council doesn’t pay for communal services // http://maidan.org.ua/static/news/2007/1190874901.html.

[32] Data of the State Judicial Administration. Report of first instance courts on examination of cases within criminal proceedings.

[33] European commission for democracy through law (Venice commission), Opinion «On video surveillance in public places by public authorities and the protection of human rights», Adopted by the Venice commission at its 70th plenary session (Venice, 16-17 March 2007), http://www.venice.coe.int/docs/2007/CDL-AD(2007)014-e.asp.

[34] The right to respect for personal and family life: civil and legal aspects in Ukrainian legislation and court practice (in Ukrainian). Y. Petrova. The European Convention on Human Rights: Main provision and practical application, the Ukrainian context/ edited by O.L.Zhukovska. – Kyiv: “BIPOL”, 2004, p. 403

[35] “Everything about bookkeeping”  – № 119 –24 December 2007

[36] In arguing the legal position for the possibility of rejecting vaccinations, reference is made to norms of the following laws:

“On the fundamental principles of health care legislation in Ukraine”: Article 42: “Risky methods of prophylactic care … are declared admissible if they … are applied with the consent of the patient who has been information of their possible harmful consequences”; Article 43 “In the case of a patient who has not reached the age of 15, medical intervention is carried out at the consent of his or her legal representatives”.

“On the protection of the population against infectious diseases”: Article 12 “Prophylactic vaccination of mentally fit adults are carried out with their consent … In the case of persons who have not reached the age of 15 …. vaccinations are carried out with the consent of their parents.

“On the protection of the population against infectious diseases”, Article 15  “Children who have not received prophylactic vaccinations in accordance with the vaccinations schedule are not permitted to attend institutions for children”.

The Constitution of Ukraine, Article 8 “The Constitution of Ukraine has the highest legal force. Laws and other normative legal acts are adopted on the basis of the Constitution of Ukraine and shall conform to it.

The norms of the Constitution of Ukraine are norms of direct effect. Appeals to the court in defence of the constitutional rights and freedoms of the individual and citizen directly on the grounds of the Constitution of Ukraine are guaranteed.”; Article 53 “Everyone has the right to education”.

“On the protection of childhood”.Article 19 “Each child has the right to education”;

“On preschool education Article 6 “The principles of preschool education are accessibility for each citizen of educational services provided by the system of pre-school education;

Judgment of the Constitutional Court of Ukraine from 04.03.2004 № 5-judgment/2004: “access to education as the constitutional guarantee of the fulfilment of the right to education on the basis of equality, means that nobody can have their right to education rejected.

[37] In the Odessa region parents reject vaccination of their children // UNIAN . – http://health.unian.net/ukr/detail/186389; Anti-vaccination campaign spreading around Ukraine UNIAN . – http://health.unian.net/ukr/detail/187231;  “After vaccination – to resuscitation?” ї// http://20minut.ua/news/77072; Vaccinations – for and against // http://www.gazeta.rv.ua/?n=11695; Twp views on vaccinations”  // Ukraine and the world .– № 13 (413).– 26.03.2007 .– http://www.uwtoday.com.ua/articlea.asp?NID=3738&JId=203&LID=1; Lesya Shcherbenko Children without vaccinations are not admitted to kindergartens. // http://gpu.ua/index.php?&id=211842

[38] Data of the State Judicial Administration. Report of first instance courts on examination of cases within criminal proceedings.

[39] Report from the Ministry of Justice  http://www.minjust.gov.ua/0/11568.

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