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Human rights in Ukraine – 2008. 5. THE RIGHT TO PRIVACY (The right to respect for private and family life)

   

[1]

Constitutional regulation

The right to privacy is guaranteed by the Ukrainian Constitution. 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 envisages protection of 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 lacking in respect for the right to privacy and is often a source of violations.

 1. Surveillance and interception of communications

Over recent years the use of technical means of surveillance of individuals has become widespread.

 There are, on the one hand, reports of such means being used by private individuals. At the same time it is reported that representatives of the authorities are also involved in using technical means for gathering information about citizens (including, of course, unlawfully).

 According to information from the Supreme Court press service[2] in 2008 general appellate courts considered 25 thousand 86 applications from the law enforcement agencies for permission to intercept communications, to seize correspondence or use other technical means of receiving information linked with a restriction in people’s constitutional rights. For comparison, in 2005 15 thousand such applications were made; in 2006 – 19 thousand 649 and in 2007 – 19 thousand 989. Most of the applications in 2008 came from heads of operational divisions of the Ministry of Internal Affairs (MIA) (14, 815) the Security Service (SBU) (8, 323) and the tax police (1, 655). In addition, courts considered 193 applications from other bodies, including the Prosecutor’s Office and subdivisions of the State Border Guard Service. The largest number of applications were considered by appellate courts in Kyiv – 3, 806; Zaporizhya region – 2, 460; Donetsk region – 1, 546; Mykolaiv region – 1, 194; Odessa region – 1, 139; Luhansk region – 1, 089; Khmelnytsky region – 1, 072, the Lviv region – 1, 043, as well as the Autonomous Republic of the Crimea.

 At the same time, on average the SBU each year completes investigations into no more than 900 criminal files of which no more than 700 reach the court. It would appear that over 7.5 thousand warrants are received not in order to investigate criminal cases and the question must arise what the purpose is of such measures.

According to information from the Prosecutor General’s Office[3] only 19% of the material received as a result of investigative operations carried out by the SBU goes on to be used to initiate criminal investigations. For example, in Kyiv and the Kyiv region of the 96 warrants issued for investigative operations, not one was used as evidence in a criminal case. One must therefore ask why 4/5 of all investigative operations are carried out by the SBU and how the material obtained is in fact used.

The same situation can be seen with investigative operations carried out by the MIA.

The problem is exacerbated by the fact that legal norms are often unclear with regard to the procedure and limits of permitted intrusion into people’s privacy. For example, there remains no law on personal data protection, and the law on investigative operations does not fully comply with the principles of clarity and foreseeability.

Even the Prosecutor General’s Office acknowledges the flaws in this procedure. For example, in practice the prosecutor’s office cannot appeal to the courts against the issuing of a court warrant for interception of communications. Such a warrant may only be cancelled by a court or by the body which applied for the warrant. This means that control is virtually non-existent.

 There remains a need for changes to legislation referred to by the European Court of Human Rights in the Case of «Volokhy v. Ukraine», with regard, for example, to the fact that with individual surveillance the law does not clearly stipulate the limits and conditions under which the authorities can exercise discretionary powers. It also fails to provide sufficient guarantees of protection from arbitrary will in applying surveillance measures, and does not make it obligatory to inform a person that he or she had been subjected to surveillance measures. People cannot therefore find out that measures which intrude upon their right to confidentiality of correspondence were applied, and even if they do find out, in practice there are no real mechanisms for appealing against such actions.

 The mechanism for issuing a warrant for wiretapping remains flawed. Legislation does not set out clear grounds for interception of communications, nor does it stipulate the time period during which this can take place.[4]

Given the fact that legislation and practice with regard to temporary restrictions on the right to privacy are equivocal and incomplete, on 28 March 2008 the Plenum of the Supreme Court issued Resolution No. 2 «On some issues regarding the application by Ukrainian courts of legislation when issuing permits for temporary restrictions on certain constitutional human rights and civil freedoms in investigative operations of the detective inquiry and pre-trial investigation units[5]

The Resolution summarizes legislation and practice and provides recommendations to the court on applying legislation regulating the procedure for issuing a permit for entering the home or other premises of a person, interception of communications, monitoring of correspondence, telephone calls, telegraph or other correspondence, and the use of other technical means for obtaining information linked with the restriction of people’s constitutional rights.

The Resolution refers to the laws regulating the procedure for restricting the right to privacy and classifies such restrictions (undisclosed gaining of access to a person’s home or other property; interception of information from communication channels; monitoring of correspondence, telephone conversations, telegraph or other correspondence; and the use of other technical means of obtaining information; survey or search of a person’s home or other property (Article 14-1, § 5; Article 177, § 4, Article 190 of the Criminal Procedure Code [CPC]); compulsory removal from a person’s home or other property (Article 14-1, § 4; Article 178 of the CPC); seizure of correspondence and interception of communications (Article 14-1, § 4; Article 187 of the CPC); scrutiny and removal of correspondence and study of intercepted information (Article 187 of the CPC). The Resolution indicates that the restriction of such rights and freedoms when carrying out investigative operations, detective inquiry or pre-trial investigation work is permissible only upon a justified court order (except in cases envisaged by Article 30 § 3 of the Constitution), and should be of an exceptional and temporary nature.

Among other things it is stated that courts are not entitled to issue warrants for carrying out investigative operations which temporarily restrict the person’s constitutional rights and freedoms if an investigative operations or counter-espionage investigation has not been initiated, or if there is no information to indicate that it was impossible to receive the information in any other way.

The Resolution also gives attention to timeframes during which it is intended to restrict a person’s rights, however in any cases these timeframes may not exceed the periods for carrying out a specific investigative operation case. However certain investigative operation cases can last for many years or until the grounds for initiating them disappear, i.e. always.

Furthermore, in issuing warrants for such measures the court is not entitled to determine whether a person is guilty of committing a crime, to assess the evidence from the point of view of their reliability or adequacy for qualifying the actions of the person or determining other issues which must be revolved during judicial examination of a criminal matter.

In February 2008 it was announced that the Prosecutor General’s Office had complicated its investigation over the unlawful wiretapping of politicians during the 2004 Presidential campaign. The victims included the current Prime Minister Yulia Tymoshenko and her lawyer, and it is likely that members of Viktor Yushchenko’s staff, and he himself, were tapped. The wiretapping was carried out on the basis of a court warrant however it is asserted that the warrant was issued on the basis of an application to tap the telephones of members of a criminal gang, while the mobile telephones stipulated were actually those of the politicians. Member of the Committee on fighting organized crime and corruption, Mykola Dzhyha (Party of the Regions), however, claims that the wiretapping of leaders of the opposition in 2004 was carried out by chance. Nonetheless the investigation team did not establish who had initiated the operation[6].

 It is probably for this reason that in March 2009 members of the Yulia Tymoshenko Bloc [BYuT] sent all appellate courts with jurisdiction to consider applications for wiretapping or interception warrants lists of telephone numbers belonging to high-ranking officials which they suspected SBU of tapping.

According to Sviatoslav Oliynyk from BYuT, «We made up a list at our own discretion of key figures and those who were possibly already facing wiretapping. We did this so that courts, prosecutors and investigative bodies would do an additional check as to whether any sanctions for those names issued corresponded to the material of their investigative operations cases. We gave the specific telephone numbers in order to draw the attention of the competent individuals involving in issuing warrants that these telephones belonged to public politicians and not to people under criminal investigation.»

According to press reports, deputes sent the Prosecutor General’s Office a list containing 11 numbers, and to the appellate courts an expanded list with 30 telephone numbers. The newspaper «Kommersant-Ukraine» reports that the lists contained the mobile phone numbers of Prime Minister Yulia Tymoshenko, the First Deputy Prime Minister Oleksandr Turchynov, Deputy Heads of the BYuT faction Andriy Kozhemyakin and Andriy Portnov, the Prosecutor General Oleksandr Medvedko, his Deputies Mykola Holomsha and Renat Kuzmin, as well as the first Ukrainian President Leonid Kravchuk. Furthermore, a source within the faction informed that the name of the «leader of one of the enforcement bodies» was on the shortlist.[7]

Such action from the BYuT faction received a mixed response. According to media reports, the Head of the SBU Press Service Marina Ostapenko asserted that the SBU was acting within the law and that if there were any doubts about this, then deputies should approach the Prosecutor’s Office. The Head of the Kyiv Regional Court of Appeal Yury Nechyporenko said that he had received no such list, yet that he was positive about the initiative, while Yury Vasylenko, former judge of the Kyiv Court of Appeal stated that such actions were in breach of the law on investigative operations since such operations could also be carried out with respect to them.[8]

The media also reported that the Deputy Prosecutor General Renat Kuzmin had asked the Prosecutor General Oleksandr Medvedko to check whether it was lawful to tap his telephone conversations. He stated that he had learned that from January to December 2008 the SBU had carried out investigative operations against him, including those which restricted his human rights. He asserted that the permit to carry out such investigative operations had been obtained in the Zhytomyr Regional Court of Appeal on the basis of falsified documents, and in view of this asked for the matter to be checked and a criminal investigation initiated. He said that after this a criminal investigation had been launched over intrusion into his private life however the SBU had appealed against the decision to initiate it with the court. Renat Kuzmin also informed that the Head of the Kyiv Court of Appeal had unwarrantedly changed jurisdiction, and directed the case to the Sviatoshnynsky Court in Kyiv and that the latter, having examined the case, had returned it to the Court of Appeal which had again sent it to the Sviatoshnynsky Court. Mr Kuzmin also alleged that the SBU was engaged in unlawful wiretapping of leading politicians and was monitoring all politicians which the regime didn’t like online. .[9]

 It is ironical that claims that they were being tapped, or could be tapped, were made both by National Deputies from the political bloc which includes the Prime Minister’s party who were supposed to be adopting legislation on guarantees against wiretapping, and from the Deputy Prosecutor General who in his turn is responsible for ensuring that the law is adhered to in the country. If such people do not have the legal mechanisms to protect their right to privacy, it is clear that it is virtually impossible for the average citizen to defend his or her right to privacy.

In January 2009 the Kyiv Administrative Court of Appeal considered an administrative suit asking the court to declare unlawful the 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». The application lodged by Viacheslav Yakubenko and supported by the Ukrainian Helsinki Human Rights Union Strategic Litigations Fund was turned down, however the Court issued a separate judgment which reminded the Prime Minister Yulia Tymoshenko 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 stresses that this law must be line with the Convention and case law of the European Court of Human Rights with regard to this Article.[10]. It in fact suggests that those drawing up the law make use of UHHRU recommendations.

This meant that enforcement should be ensured of Presidential 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, 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 had drawn up instructions on restrictions of citizens’ rights, but had not prepared the relevant proposals.

According to European standards, any application for access to personal information must be sufficiently well-founded. It should indicate the circumstances of the case and explain why it is only in this way that the needed information may be obtained. At the same time, after the termination of a criminal investigation or its being passed to the court, the person should be informed that surveillance measures were used against him or her. This makes it possible to appeal against the actions of the law enforcement agencies in court. There should also be independent control over these activities (usually carried out by an Ombudsperson). There is however none of this in Ukraine.

2. Control of the Internet

According to reports, the SBU for the purpose of countering so-called «computer terrorism» is continuing to carry out measures of monitoring of Internet users and regulation of the Ukrainian segment of the Web. Despite the lack of legal definition of the SBU’s powers in this sphere, it continues to implement technical possibilities for carrying out such control.

According to responses from the SBU to UHHRU information requests, SBU activities on monitoring Internet traffic and emails are carried out in accordance with the law on investigative operations. Yet it is clear to everybody that this is impossible since such monitoring is general and not based on an individual approach and cannot therefore be carried out according to cases initiated involving investigative operations and court warrants as required by legislation. It then becomes plain that there simply are no clear legal grounds for these investigative operations. Such measures are obviously carried out on the basis of secret instructions and in no way brought into line with democratic standards.

3. Protection of personal data

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, and the Additional Protocol to it, On 25 March 2008 the Verkhovna Rada registered a new draft law «On protection of personal data».[11] It should be noted that back in March 2006 the Verkhovna Rada passed in full a draft law «On Personal Data Protection»[12]. However the President used his power of veto. The law had been 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, putting forward his suggestions.[13] Following this, parliament never actually considered this draft law.

We would note that sale of databases created by State bodies via the Internet or simply at markets is fairly widespread. The media report some cases where people are detained or prosecuted over this. For example, in September 2008 SBU officers detained an SBU employee who was trying to sell three carriers of data from State bodies for 500 USD each, passing them off as legal software, licensed video and audio disks, as well as an electronic device with secret information.[14] In January 2009 the person was convicted by the Obolonsky District Court in Kyiv of the crime under Article 361-2 of the Criminal Code (unauthorized sale or circulation of information on restricted access which is stored in computers, automated systems, computer networks or on carriers of such information). He was sentenced to 2 years but not imprisoned, receiving a trial period of 24 months on the grounds of genuine repentance and active cooperation in investigating the case.[15]

State register of voters

 At the beginning of 2007 parliament passed the Law «On the State Register of Voters» which came into force on 1 October 2007. The law envisages the creation of a single State register of voters which would 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. However the preparation of this register ran up against a number of court suits over the running of the procurement tender.[16] Due to the court proceedings against the Central Election Commission [CEC], the tender for procurement of goods and services for the creation of an automated information and telecommunications system for a State Register of Voters was declared void.

 Soon the Cabinet of Ministers approved new timeframes[17] for carrying out measures to create a State Register of Voters and allowed procurement from one participant.[18] After lengthy procedure including a Presidential Decree, Prosecutor’s Order, an appeal from the President to the Constitutional Court, and so forth, the CEC finally, on 16 June 2008, announced an open tender for the purchase of technical equipment and programme software for the State Register of Voters. At long last on 8 August 2008 CEC signed a contract with the «Corporation «SSAPS». [from Single State Automated Passport System] to create the programme software for the State Register of Voters. This consortium already controls the system for issuing passports [i.e. internal documents] for Ukrainian citizens and passports for travel abroad.

 The gathering of personal data by State bodies

 The number of databases collected by the State continues to grow and those already existing are expanding despite the lack of legislation on protection of personal data.[19]

On 30 September 2008 the Administration of the State Border Guard Service issued Order No. 810 «On approving Provisions on an information and telecommunications system of border control «Hart-1» of the State Border Guard Service.»[20] The following functions of the «Hart-1» system are mentioned: «formation of databases about people who have crossed Ukraine’s border, including the recording of biometric data of people who, in accordance with legislation, are prohibited from entering Ukraine or temporarily restricted in their right to leave Ukraine, including cases pursuant to instructions from the law enforcement agencies regarding people hiding from bodies of detective inquiry, criminal investigation or the court, trying to avoid serving a criminal sentence, invalid, stolen or lost documents for leaving the country, and other databases created and used in accordance with legislation», as well as automating the processes for checking this information.

Clearly this order was one of the elements towards enforcing the Cabinet of Ministers Instruction No. 439-I from 12 March 2008 «»On approving an action plan for 2008 on creating a system for control over foreign nationals and stateless persons arriving on Ukrainian territory and recording their biometric data».[21] However there were no legislative grounds for such decisions then and there remain none. The Cabinet of Ministers exceeded its powers in issuing such an Instruction.

Therefore, soon afterwards the Government submitted to the Verkhovna Rada a draft law[22] which envisages recording the biometric data of foreign nationals and stateless persons, both when organizing a visa, and at passport control points on the State border, if nothing else is envisaged by legislation. It is planned that the list of items of biometric information and the procedure for providing it should be determined by the Cabinet of Ministers. In April 2009 the Verkhovna Rada in the space of an hour adopted this draft law in its first and final reading, however in May the President vetoed it following an appeal from human rights groups[23] due to the lack of proper protection of personal data.

At the present time the main electronic classifier used for gathering and process personal data about Ukrainian nationals is the identification number issued by the State Tax Administration. The sphere of its use is constantly being expanded and goes well beyond the limits of the purpose 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, receive State educational diplomas, carry out any form of notarized actions, receive an internal passport, or one for travel abroad, etc.

Therefore in reality we have a situation where the administrative practice of State executive bodies is knowingly violating the Law 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, size of communal charges arrears and so forth.

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 May 2008 during the elections to the Kyiv City Council the Minister of Internal Affairs Yury Lutsenko notified of plans to publish «blacklists» of people with a criminal past who were standing for office as deputies of the City Council. Giving a specific example, Lutsenko said that in the candidate list of the party «Ukraine’s Conscience», there was a woman who had been prosecuted 14 times for prostitution. «I think that the public should know this» he stressed, and stated that the full list would be posted on the MIA official website.[24] It is clear that such actions are directly linked with the activities of the political force which Lutsenko represents. It would seem that the selective circulation of personal data which has been divulged in connection with Yury Lutsenko’s term as Minister of Internal Affairs could be an infringement of the right to privacy.

On the next day, 21 May 2008, the MIA published information on its official website about 18 candidates for the post of deputy of the Kyiv City Council and the various offences they committed.[25] The continuation of this story was comical since it turned out that the law enforcement officers had mixed up people with the same first and last names, and the actual candidate for deputy had never engaged in prostitution, but was a university lecturer. Later in April 2009 the Pechersky District Court in Kyiv found that the information had been inaccurate, and ordered the Minister to pay 5 thousand UAH in moral compensation[26]. After this incident the Minister did not try to circulate similar information, yet the information in question remains to this day on the MIA website.

 Searches

There remains a problem with procedure for carrying out searches or seizures not carried out in a person’s home or other property since such actions may be undertaken without a court order, which does not meet international standards. Certain problems arise during the search of lawyers’ premises linked with the fact that the premises may contain information which individuals have entrusted to their lawyer and which should have special protection. In practice, however, there is no such protection.

For example, on 5 April 2008 in the limited company «West Ukrainian Legal Alliance» a search was carried out by police officers from the Rivne Regional Department of the MIA. This was on the basis of a court order issued by a judge of the Rivne City Court on 4 April 2008 sanctioning the search of the home and other possessions of T.M. Kalyta despite the fact that the premises indicated in the court ruling do not belong to Mr Kalyta and a part of it is rented by lawyers M.M. Davydyuk, R.S. Shevchuk and S.V. Udovychenko. Article 10 of the Law «On the Bar» states that «… any interference in lawyers’ activities is banned, together with demands that a lawyer, his assistant, officials and technical staff of lawyers’ associations divulge lawyers’ confidential information. On these issues they cannot be questioned as witnesses. Documents linked with the carrying out by a lawyer of a client’s instructions are not subject to scrutiny, disclosure or removal without their consent.» Pursuant to Article 9 § 1 of the same law, lawyers’ confidential information constitutes issues on which individuals or legal entities have approached the lawyer, the essence of the consultation, advice, explanation and other information received by the lawyer in carrying out his or her professional duties. It was reported that the search resulted in the removal of a considerable number of documents and items which, according to the lawyers involved, contain information which they received while carrying out their professional duties and therefore contain private information from clients which constitutes lawyers’ confidential information.[27]

 

 Video surveillance

A problem concerning the right to privacy which became more acute in 2008 was the placing of closed circuit cameras in public places. One of the trends is for wide-scale position of these cameras which are used by police officers for surveillance. For example, it was reported that in Kyiv 36 cameras were established; in Rivne – 12; in Chernivtsi – 20; in Mukachevo in 2008 – 32, and by March 2009 already 62; in Lviv at the beginning of 2009 around 200 surveillance cameras were registered, some of these being positioned by particular individuals or organizations. Due to the lack of legislative regulation of this means of gathering information there is a risk of violation of people’s right to privacy.

Changes are needed to Article 307 of the Civil Code which restricts privacy and establishes the presumption of a person’s consent to being videoed in public places. This provision is not coordinated with the practice of the European Court of Human Rights.

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.[28]

There is no proper legislative regulation of video surveillance. .

Privacy and medical procedures

Within the context of the right to privacy there are also problems with compulsory medical procedures. 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.

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. During the year this issue was raised on many occasions in the media. It became especially acute after the death of an eleven-year-old in Kramatorsk in May 2008 following vaccinations against measles and German measles. There were also reports of a considerable number of children who ended up in hospital after vaccinations.[29] After the scandal gained momentum and large numbers of parents began rejecting the «death vaccination», the Minister of Health Vasyl Kniazevych issued an Instruction suspending the vaccination.[30] However doctors soon began demanding that the vaccinations be carried out.

During the year some media outlets raised the issue of cases where testing of new medicines had been tested on people without their being given detailed information about possible side effects.[31]

The case of Solomakhin v. Ukraine

In May 2008 the European Court of Human Rights issued a partial judgment as to admissibility in which it found admissible the applicant’s allegation of a violation of his right to physical inviolability.[32] The applicant asserts that as a result of a vaccination against diphtheria, despite there being medical factors against this, he developed a number of illnesses.

 

1. The Case of Saviny v. Ukraine

In December 2008 the European Court of Human Rights issued its judgment in the case of Saviny v. Ukraine.[33].

The Saviny couple lived in the city of Romny in a two-room flat without hot water or gas. Both have been blind since birth. They have 7 children. O.. born in 1991, M. born in 1992, Y.. born in 1993, P.. born in 1995, S. born in 1997, K.. born in 1998 and T, . born in 2001. In 1997, O. was forcibly placed in the general education school-orphanage. His parents collected him at weekends and holidays. On several occasions the school administration complained to the municipal authorities that O. habitually ran away from school, begging. In February 1998 four of the children (M.., Y.., P, . and S..) were taken into public care on account of the applicants’ inability to provide them with adequate care and upbringing. The children were initially placed in various institutions but were then placed in one. P. was later adopted with the applicants’ consent.

Between 1998 and 2004 representatives of the Municipal Juvenile Service and the Tutelage Board, in cooperation with several other municipal authorities, visited the applicants’ flat on some ten occasions and drafted reports concerning the suitability of the living conditions for the upbringing of the children who remained in their care. According to these reports, the conditions were grossly unsatisfactory. On several occasions the couple were provided with support by the Society for the Blind, as well as by volunteers who also received a certain amount of financial and other aid from the State. The couple also asked the local authorities to connect them to gas, however they were official informed that their neighbours were categorically against this and believed that it would be dangerous since they were blind, and also that it was technically impossible to do. One of the applicants has been unemployed since the beginning of the 1990s and the State did not help him to find work. The other worked until retiring.

In July 2003 the Municipal Committee for Social Protection and Prevention of Juvenile Delinquency warned the applicants that they needed to improve the conditions in which their children were being brought up. In January 2004 the Romny Prosecutor initiated, at the request of the Juvenile Service, court proceedings for the placement of O, K. and T. in public care. In December 2004 the court had allowed the Prosecutor’s Office application asserting that the parents were not looking after their children, that they were often hungry, dirty and at home alone, that they were living in terrible and unsanitary conditions. It was also stated that the children were suffering from first-stage anaemia.

The applicants appealed against this decision. They stated that the Family Code of Ukraine contained limited grounds for removal of children from their parents – evasion of child maintenance, cruelty, chronic alcoholism or drug addiction of parents, exploitation of children, involving them in begging and vagrancy. They insisted that they had never done any such things and that there was no proof that the conditions of their children’s upbringing, albeit basic, were in fact dangerous. The applicants further explained that the fact that they could not provide the children with better conditions was only due to their blindness. In February 2005 the Sumy Regional Court of Appeal dismissed their appeal. It repeated the conclusions of the first-instance court that leaving the children with the applicants would endanger the children’s life, health and moral upbringing. The applicants appealed in cassation, raising essentially the same arguments as in their previous appeal. On 22 March 2006 the Supreme Court of Ukraine dismissed the appeal in cassation. The applicants’ children were not heard at any stage of the proceedings

The judgment was enforced on 23 June 2006. Eventually, K. was placed in a school in Romny, while O. and T. were placed in a school in Sumy (some one hundred kilometres from Romny). O. continued to run away from school

The couple lodged an application with the European Court of Human Rights. They complained that the court’s judgment of 2 December 2004 infringed their right to respect for their family life as provided in Article 8 of the European Convention on Human Rights.

They alleged that the national authorities could have taken a less severe measure than taking their children away from them, and that the State could help them to raise their children themselves by providing them with adequate conditions. They also underlined that the children’s opinion had not been taken into account during the trial.

The Government accepted that there had been interference with the applicants’ right to respect for their family life as guaranteed by Article 8 § 1 of the Convention. Nevertheless, they maintained that it was in accordance with the law, namely Article 170 of the Family Code; pursued a legitimate aim of protection of the children’s interests; and was not disproportionate.

The European Court of Human Rights found that there had been a violation of Article 8 of the Convention. It stressed that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life and that domestic measures hindering such enjoyment amount to an interference with the rights protected by Article 8. It also stressed that, notwithstanding a margin of appreciation enjoyed by the domestic authorities in deciding on placing a child into public care, severing family ties means cutting a child off from its roots, which can only be justified in very exceptional circumstances

«53. It is common ground that the decision to place O.S., K.S. and T.S. in public care constituted interference with the applicants’ rights guaranteed by Article 8; that this interference was carried out in accordance with the law and pursued a legitimate aim of protecting the interests of the children. It remains to be examined whether this interference was «necessary in a democratic society».

54. In this regard the Court first notes that the applicants have generally agreed with the Government that it might have been beneficial for their children in material terms to be placed in special educational establishments, such as boarding schools, in light of the limited resources available to them to meet their daily needs. They disagreed, however, as to whether it was necessary to do so by way of imposition of a removal order, which restricted their ability to take children home outside school hours, such as for vacations and weekends.»

«56. In assessing, however, whether they were also sufficient, the Court doubts the adequacy of the requisite evidentiary basis for the finding that the children’s living conditions were in fact dangerous to their life and health. It notes, in particular, that the custody proceedings instituted in January 2004 had not resulted in the children’s removal from home until 23 June 2006, no interim measure having been sought and no actual harm to the children during this period having been recorded.

Furthermore, besides information about inspections of the place where the children were living and a document about two of the children suffering from first-stage anaemia, there was no other evidence, testimony from the children themselves, from neighbours, medical documents or paediatricians’ opinions.

57. Further, there is no appearance that the judicial authorities analysed in any depth the extent to which the purported inadequacies of the children’s upbringing were attributable to the applicants’ irremediable incapacity to provide requisite care, as opposed to their financial difficulties and objective frustrations, which could have been overcome by targeted financial and social assistance and effective counselling.»

Thus no proof of the applicants’ purported irresponsibility as parents was provided, nor was an analysis made of their attempts to improve their situation through appeals to the authorities. Nor was a study made of the scope and type of support provided to the couple, and the reasons why it had not helped.

The Court stressed that the State had not carried out its duty to respect family life, by not seeking other alternative measures to separating the children from their parents.

59. The Court also notes that at no stage of the proceedings were the children (including O. who was thirteen years of age when the first-instance proceedings were pending in December 2004) heard by the judges and that by way of implementation of the removal order not only were the children separated from their family of origin, they were also placed in different institutions. Two of them live in another city, away from Romny where their parents and siblings reside, which renders it difficult to maintain regular contact.

60. Given all these foregoing considerations, the Court concludes that although the reasons given by the national authorities for removal of the applicants’ children were relevant, they were not sufficient to justify such a serious interference with the applicants’ family life.

This judgment raises serious fundamental problems for the State system of care of children which is to a greater extent based on such severe measures as taking children away from their parents than on providing various forms of assistance.

Recommendations

1) Ratify the Council of Europe’s Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, 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 personal data protection;

·  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.

3) 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.

4) Revoke Verkhovna Rada Resolution from 23 February 2007 № 719-V on amendments to

Verkhovna Rada Resolution «On approving the provisions on a Ukrainian citizen’s passport and birth certificate» № 2503-XII from 26.06.1992. Revoke also 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». The procedure for preparing and issuing passports must be clearly set out in law.

 5) Revoke Cabinet of Ministers Resolution №1169 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». In implementation of the Separate Judgment of the District Administrative Court from 16 January 2009, the Cabinet of Ministers should draw up and submit to parliament a draft law setting out this procedure.

6) Remove Item 4.4.8 from the List of items which constitute a State secret «Information about

statistical figures for investigative operations, counter-espionage or intelligence activities which make it possible to assess the number of operational forces and means which are applied in carrying out these activities, but do not disclose the targets of such measures».

7) Pass a law «On interception of telecommunications» which will allow for independent monitoring of the activities of the State Service for Special Communications and Protection of Information, MIA, SBU and other law enforcement agencies, in intercepting communications, publishing an annual report with depersonalized information regarding the interception of communications in the course of investigative operations and criminal investigations;

8  Amendments are needed to legislation to bring it into line with the case law of the European Court of Human Rights regarding interception of communications (wiretapping, tapping of mobile telephones, timing of calls, monitoring of the movement of mobile telephone users, surveillance of emails, monitoring of sites visited on the Internet, etc) with the following:

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

-  A clear list of the crimes which can result in interception of messages;

-  Restriction in the cases where the grounds for suspecting a person of having committed a serious crime have already been established by other means;

-  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.

-  A mechanism for dealing with copies or material written out where the person accused was acquitted.

9) 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

10) 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 secret searches.

11) 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.

12) 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);.

13) 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);

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.

16) Regulate at legislative level video surveillance in public places, the procedure for storage, access to and wiping of such video footage, marking places where there is such surveillance, and ways of control over such activities.



[1] By Ruslan Topolevsky, Centre for Legal and Political Research “SIM”

[2] Information from the Press Service, 7 April 2009, http://www.scourt.gov.ua/

[3] Information “On the level of lawfulness in the country in 2008 (in accordance with Article 2 of the Law “On the prosecutor’s office”) http://www.gp.gov.ua/ua/vlada.html?_m=publications&_t=rec&id=23367.

[4] V. Yavorsky “How investigative operations carried out by the SBU comply with human rights standards http://www.helsinki.org.ua/index.php?id=1240739358

[5] Although such resolutions are of A recommendatory nature, they are aimed at ensuring correct and standardized application by the courts of legislation and provide an idea of the legal position of the Supreme Court, and are therefore a basis for local and appellate courts when issuing rulings.

[6] They got the wrong number // Kommersant – Ukraine No. 32 – 26.02.2008 http://kommersant.ua/doc.html?path=komua200803211484809.htm

[7] BYuT has drawn up a list of officials who are candidates for unlawful wiretapping // the TSN information service of the television channel “1 3 March 2009 http://tsn.ua/ua/ukrayina/byut-sklav-spisok-posadovtsiv-kandidativ-na-nezakonne-prosluhovuvannya.htm

[8] “BYuT leaks politicians who could be tapped” // http://24.ua/news/show/id/80752.htm

[9] “Deputy Prosecutor General Renat Kuzmin: “Somebody would like specifically Kuchma to end up behind bars” // the newspaper “Komsomolskaya Pravda in Ukraine”, 13 April 2009 http://kp.ua/daily/130409/176618/

[10] Rule of Law not of the Cabinet of Ministers http://www.helsinki.org.ua/en/index.php?id=1233313551

[11] Draft law No. 2273 from 25.03.2008 (authors: National Deputies O. Shevchuk, V. Lytvyn, V. Polokhalo, K. Samoilyk) Available in Ukrainian at http://gska2.rada.gov.ua/pls/zweb_n/webproc4_1?id=&pf3511=32124

[12] 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).

[13] Available here http://gska2.rada.gov.ua/pls/zweb_n/webproc4_1?id=&pf3511=27270

[14] “The SBU has arrested somebody selling secret databases in Kyiv” // the Internet publication “Korrespondent.net”, 2 September 2008, http://korrespondent.net/kyiv/572749

[15] In Kyiv a person has been convicted for selling databases of information in the possession of the State// Report from the SBU Press Service, 23 January 2009

[16] “Why work on creating a State register of voters is being hampered, or how to work in friendly manner with your hands tied” // site of the Central Election Commission http://www.cvk.gov.ua/drv/l_26062008.htm

[17] Cabinet of Ministers Instruction from 12 March 2008 No. 437 http://www.cvk.gov.ua/drv/l_26062008_d7.pdf

[18] Cabinet of Ministers Resolution from 17 April 2008 no. 363 http://www.cvk.gov.ua/drv/l_26062008_d8.pdf

[19] Information on State institutions’ databases can be found (in Ukrainian) in the List of electronic information databases of Ukrainian State institutions http://uk.wikipedia.org/wiki/

[20] Available at http://zakon1.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=z1086-08

[21] Available at http://zakon1.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=439-2008-%F0

[22] Draft law No. 3079 from 28.08.2008 on amendments to Article 25 of the Law “On the legal status of foreign nationals and stateless persons” (author of the initiative – the Cabinet of Ministers) http://gska2.rada.gov.ua/pls/zweb_n/webproc4_1?id=&pf3511=33169.

[23]UHHRU Open Appeal against collection of biometric data http://helsinki.org.ua/en/index.php?id=1239888387

[24] “Lutsenko will tell Kyiv residents that a prostitute wants a place in their “conscience” // the Internet publication “Ukrainska Pravda”, 20.05.2008 http://www.pravda.com.ua/news/2008/5/20/76109.htm

[25] Officers of the Central Department of the MIA have carried out a check of candidates running for office as Kyiv Mayor, or in the Kyiv City Council to ascertain possible involvement in criminal activities // MIA official website, 21.05.2008, http://www.mvs.gov.ua/mvs/control/main/uk/publish/article/110121

[26] “Svitlana Shcherbyna: “When it happened, they telephoned and asked “How can a prostitute be teaching in a higher educational institution?” http://www.tovarish.com.ua/archive/1100/Tretia_pol/Svitlana_S.html  A lesson for the Minister. The Pechersky District Court in Kyiv has recognized Yury Lutsenko’s moral and professional inadequacy http://www.tovarish.com.ua/archive/1229/Urok_dlia_6871.html; Lutsenko fined five thousand UAH for allegations of prostitution http://tsn.ua/ua/ukrayina/lutsenka-oshtrafuvali-na-5-tisyach-za-zvinuvachennya-v-prostitutsiyi.html

[27] «Lawyers in the Rivne region allege unlawful search and removal of documents” // 9 April 2008 http://www.helsinki.org.ua/index.php?id=1207740775

[28] 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.

[29] “The Prosecutor General: an expert study has confirmed that schoolchild Tyshchenko died from vaccinations” // 19 September 2008 http://unian.net/ukr/news/news-273851.htm “The death of Anton Tyshchenko was directly linked to the vaccination - Prosecutor General http://ictv.ua/ukr/news_ukraine.php?news_id=118565;

[30] «No. Turn down vaccinations // 19 May 2008 http://novynar.com.ua/worldabus/27232

[31] http://profil-ua.com/index.phtml?action=view&art_id=386 ,   http://novynar.com.ua/tech/31619,   http://eco-ua.org/index.php?item=articles&sub=3440&d_id=3

[32] Partial decision as to the admissibility of Application no. 24429/03 by Sergey Dmitriyevich Solomakhin against Ukraine http://cmiskp.echr.coe.int/

[33] Case of Saviny v. Ukraine (Application no. 39948/06), judgment http://cmiskp.echr.coe.int/

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