A police state is one which treats its own citizens as potential criminals. Ukraine has recently been taking on more and more features of such a state. The introduction of names on railway tickets, as we saw on the eve of 18 May, led to lists being drawn up of people heading to Kyiv for opposition demonstrations so as to remove them from the trains. The adoption of a law according to which SMS-cards can only be sold on the basis of a contract with the telecommunication provider will make it possible for law enforcement agents to instantly identify its owner. There were a number of occasions in the middle of April when the police summoned people for questioning who had been outside parliament on 2 April when some MPs were pelted with snowballs. “Give your full name. Your number was recorded during an opposition protest and you are summoned for questioning in connection with the initiating of a criminal investigation”. The media asserted that such calls were received by around 500 protesters. After SMS-cards begin being sold only on the basis of contracts, their owners will be identified automatically.
The law enforcement agencies are of course concerned in the first instance with making their work convenient, and not about observing Ukrainians’ right to privacy, this meaning that anyone can end up under secret surveillance. At present a considerable number of crimes are investigated through looking into conversations by mobile phone in a certain place and certain period of time.
Operational departments can obtain lists from telecommunications operators of numbers phoned from a list of all SMS cards which were at that place including even cards from telephones which are switched off, as well as recordings of all telephone conversations. The Law on Telecommunications obliges operators “at their own cost to install on their own networks technical means needed for allowing the authorized bodies to carry out investigative operations and ensure the functioning of those technical devices, as well as within the limits of their powers to facilitate the carrying out of investigative operations and to prevent the divulgence of organizational and tactical measures for carrying them out”
The scale of application of these activities is staggering: if previously telecommunications operators received up to 4 thousand requests from the law enforcement agencies per month, since the beginning of this year – up to 10-12 thousand requests.
Both the Law on Investigative Operations and the new Criminal Procedure Code [CPC] assert that such measures are only possible where grave or particularly grave crimes have been committed or are being planned, and if the information about the crime and person who allegedly committed or is planning it, cannot be received in another way. Permits for carrying out such actions are issued by the heads of appellate courts or judges whom they appoint.
Yet is information like a subscriber’s phone calls; the timing of such calls; the place where the subscriber is and his or her movements; as well as the log files of the Internet uses gathered on the basis of a court order? That’s hard to believe. The new CPC contains vague norms about interception of information from transport telecommunications networks; electronic information systems; and about establishing the whereabouts of a radio-electronic means, including a mobile terminal or communications system. And since 2005 statistical information about investigative operations have been classified secret.
How it should be
At present the main function of secret surveillance is not uncovering the criminal, but establishing that there is a crime. When operational divisions carry out investigative operations against organized crime, drug traffickers, etc, they work before a crime has been committed and the aim of those operational activities is to gather information about the person or criminal gang, or possible violent acts (terrorist acts, for example).
In other words at the stage where the application for a secret surveillance order is submitted to the court they can’t specify what they want to establish or indicate a person they need to collect information about. This is akin to the actions of a fisherman who throws out a net and sees what gets into it. In such cases operational divisions can effectively organize secret surveillance at their own discretion without the use of court control. The procedure for carrying out secret investigative actions must therefore comply with European Court of Human Rights practice, should be more clearly defined in law; be clear; detailed and encompass the operational actions of such a type, with the creation of guarantees against abuse becoming a central issue. It is not advisable to restrict the means available to operational divisions for investigating crimes, however it is vital to have the possibility for public monitoring over their actions.
The European Court would be unlikely to find that even after the considerable improvement in the new CPC Ukrainian legislation on intrusion by the State into privacy is “necessary in a democratic society” since the list of crimes for which it is allowed – grave and especially grave crimes is too broad. As the Court stated in the case of Klass v. Germany, the right to secret surveillance over citizens is typical of police states, and in democratic countries, in accordance with the Convention, such surveillance can be tolerated only in case of extreme necessity to protect democratic institutions. Moreover at the investigation stage it is quite often difficult to determine whether one is dealing with a grave or particularly grave crime. There should therefore be a clear list of crimes being planned or having been committed where secret investigative activities are permissible.
As the experience of western countries shows, one of the reliable safeguards against abuse is preparation and publication of annual reports by the law enforcement agencies about their use of investigative operations which infringe the right to privacy. Such reports can be freely accessed on the Internet in such cases as the USA, Canada, the UK and many others. The number of permits received is given; the number of refusals to issue them; the types of crimes where orders were issued; the average duration of interception of information; the number of criminal cases initiated on the basis of the surveillance; the number of convictions, etc.
Having such reports in Ukraine, comparing such data with court statistics, it would be possible to assess the effectiveness of secret investigative activities infringing the right to privacy and to minimize possible abuse.
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