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16.03.2009

Defence from snooping – up to the snooped upon themselves

   

The media reported recently that National Deputies from BYuT [Yulia Tymoshenko’s Bloc) sent lists to all appellate courts, the Head of the Supreme Court and regional Prosecutors of high-ranking public officials whose telephone numbers could be subjected to tapping by the Security Service under the guise of investigative operations. The mobile numbers included those of Prime Minister Yulia Tymoshenko, First Deputy Prime Minister O. Turchynov, the Deputy Heads of the BYuT faction, and others. In fact avoidance of unlawful wiretapping is totally in the hands of Yulia Tymoshenko.

In January, as reported here, the Kyiv Administrative Court of Appeal, on the suit lodged by Viacheslav Yakubenko, issued a separate judgment. This informed the Prime Minister and her Cabinet of the need to draw up and submit to the Verkhovna Rada a draft law on the Procedure for obtaining a court order to carry out measures which temporarily restrict human rights. It stressed that this law needed to be in line with Article 8 of the European Convention on Human Rights and case law of the European Court of Human Rights. The case is supported by the Ukrainian Helsinki Human Rights Union.

At present the procedure for receiving wiretapping warrants, as well as the use of recordings made, is regulated by Cabinet of Ministers Resolution No. 1169 from 26.09.2007 which approved “Procedure for obtaining a court order to carry out measures which temporarily restrict human rights and the use of the information obtained”

There is no doubt that tapping is necessary in a number of cases in order to make it possible to fight organized crime, counter-espionage, etc. On the other hand nobody has cancelled the human right to privacy of correspondence and non-intrusion into private life. There clearly need to be clear guarantees that human rights will be observed in using special technical measures.

For this reason back in November 2005 the President issued Decree No. 1556/2005 “On observance of human rights during investigative operations using technical means” which ordered the Cabinet of Ministers to not only draw up the procedure for granting warrants for interception of communications channels, but also to submit to parliament proposals on amendments to Ukraine’s laws on safeguarding observance of civil rights when investigative operations are being carried out. However the Cabinet of Ministers has been selective in drawing up the instruction, “forgetting” to prepare legislative guarantees for observance of rights and liberties when undertaking such operations.

Nothing overly complicated was required, and they can rely on the precedents provided by the European Court of Human Rights. These precedents are clearly stipulated in the Law “On implementing judgments and applying case law of the European Court of Human Rights” as being a source of law.

The law must therefore:

  • contain a list of crimes which can lead to interception of communications;
  • be restricted to cases when the actual grounds for suspecting a person of committing a serious crime have already been established though other means (Klass v. Germnay, 6 September 1978);
  • envisage preventive measures against the exchange of this material between various State bodies (Huvig v. France, 24 April 1990, Kruslin v. France, 24 April 1990);
  • stipulate the circumstances under which recordings must be destroyed (Huvig v. France, 24 April 1990);
  • establish what needs to be done with copies or recordings of material if the person accused was acquitted (Huvig v. France, 24 April 1990).

These requirements were ignored by Yanukovych’s Government in 2007, and at present Tymoshenko’s Government is turning away from them in every way. In an official denial, a Cabinet of Ministers representative even claimed that precedents in the cases against Germany and France are only mandatory for those two countries!

The Government’s party in court also demanded that the claimant provide proof of belonging to an organized criminal gang, otherwise, supposedly, the claimant had nothing to fear from tapping by the Security Service. It is interesting whether after the list issued of Deputies’ phone numbers, we should assume that Tymoshenko, Turchynov and others now have something to fear.

More seriously, uncontrolled tapping is becoming endemic. Perhaps the separate judgment from the Administrative Court of Appeal is partially dictated by the position judges themselves find them in. There is a campaign on to stamp out corruption among judges, yet often little documented evidence.  The need to ensure that any interception of communications is done legally must therefore seem acute to the judiciary also.

The ball is now in the Cabinet of Ministers’ court. The time frame during which the Cabinet of Ministers was supposed to inform the Administrative Court of Appeal on the measures taken for safeguarding rights and freedoms when carrying out investigative operations is about to expire.

Slightly adapted from a text by Viacheslav Yakubenko at www.dt.ua

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