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VI. Right to privacy

[1]

The right to privacy (or otherwise inviolability of private and family life) in Ukraine is protected at constitutional level. In particular, Article 32 of the Constitution of Ukraine stipulates, “Nobody shall be subject to intrusion in his/her private and family life, except for cases stipulated by the Constitution of Ukraine”. Along with this, individual components of the right to privacy are specified in detail in the special Constitution articles: protection of inviolability of home — Article 30 of the Constitution of Ukraine, privacy of correspondence, telephone conversations, telegraph and other correspondence — Article 31 of the Constitution of Ukraine, prohibition of collecting, storage, use and disclosure of confidential information about a person without his/her permission — Article 32 of the Constitution of Ukraine, prohibition to subject a person without his/her free will to medical, scientific or other research — Article 28 of the Constitution of Ukraine. Further detailing is envisaged in the Civil Code of Ukraine and the Criminal Code of Ukraine. Still, application of law sometimes contradicts constitutional requirements in practice.

1. Secret Search, External Surveillance, Video Cameras in Public Places,
Telephone Tapping

On February 3, 2014, the Ministry of Justice of Ukraine registered the Resolution of the National Commission for the State Regulation of Communications and Informatization (NCSRCC), approved on December 10, 2013, which adopted the Rules for Carrying Out Activities in the Sphere of Telecommunication (activities to provide Internet access services)[2]. The draft rules were discussed between the Internet providers and their associations. The Internet Association of Ukraine spoke against introduction of these Rules as, in their opinion, these Rules contradict the Law of Ukraine “On Telecommunication” which tells to set uniform Rules for carrying out activities in the telecommunication sphere, instead of separate rules which will regulate providing of Internet access services. They assert that the Rules do not take into account technological, legal and organizational peculiarities of rendering Internet access services and, in violation of the Law of Ukraine “On Telecommunication”, distort the notion of a telecommunications operator and apply technological requirements, appropriate for telecommunication operators, to the Internet providers and other business entities in the telecommunication sphere. For instance, they have been obliged to install technical means necessary for competent agencies to perform investigative and search measures, within their telecommunication networks at their own expense. In the opinion of the Internet Association of Ukraine, these measures were intended to establish illegal instruments of additional regulatory pressure upon the Internet providers.[3] In response to the application of the Internet Association of Ukraine, the NCSRCC sent a letter in which it refused to consider any remarks from the Internet Association of Ukraine, referring to conformity of these rules with the current legislation[4].

The matter of operation of video cameras in public places as a part of the crime exposure system still remains unsettled. First of all, it concerns the desire of the heads of the internal affairs agencies to install as many cameras as possible, connecting them in a unified system with the help of a centralized control point.

For now, 24 video cameras have been installed in Lviv[5], 34 in Chernivtsi (70 across the region)[6], 140 in Kyiv, 42 in Zaporizhzhia, and 1726 cameras all across Ukraine for policing purposes[7]. Within the frameworks of reformation of the Ministry of Internal Affairs, intensive use of traffic enforcement cameras is expected.[8]

In August 2014, the Minister of Internal Affairs A. Avakov signed the order under which all checkpoints around the ATO zone were to be equipped with video cameras to register all transport vehicles and their passengers leaving the ATO zone.[9] Along with this, no legislative requirements regarding the procedure of storage of such records and access to them have still been spelt out[10].

According to the European standards[11], video surveillance can be performed, but it shall conform to the following requirements: zones of surveillance shall be systematically marked; an independent agency shall be established at the national level for independent control regarding surveillance application, as well as storage and use of information about a person.

The matter of clarifying regulation of trade by technical data collection means is yet to be resolved.

Article 359 of the Criminal Code of Ukraine establishes liability for illegal purchase, sale or use of special technical means for data collection, but there is no possibility to define what those means are. Thus, we have a situation of legal uncertainty when a person cannot envisage whether his/her actions are subject to criminal responsibility or not. In modern practices, to determine this, an expert opinion is necessary.[12]

There was information that within the two years of active application of this Article by the Security Service of Ukraine, about three thousand persons had become “spies” (and had criminal cases initiated, investigated or pending in court against them) — for purchase of key ring charms, pens and watches with built-in cameras in various online shops. Thereby, public activists appealed to the deputies of the Verkhovna Rada of Ukraine with a request to revise the text of the law[13].

Telephone tapping of citizens by power agency representatives is still a topical problem, considering decoded phone conversations obtained by journalists or posting the records directly on the Internet. Also, one time it was popular with the governmental agencies to register citizens present at a certain place by using mobile phone numbers, and then texting them on their future bringing to responsibility for violation of “dictatorship laws” of January 16, 2014.

At the same time, Corporate Administration and Control Manager of MTS Ukraine, O. Prozhyvalskyi, stated that text messages saying to avoid participation in Maidan riots had been sent not by communication operators, but by pirate base stations possibly installed by special services which had tapped into the networks and had more powerful signal than stationary stations.[14]

In January 2014, mobile communication operators received an inquiry about persons who had blocked buses carrying Berkut soldiers near the Sviatoshyn court of the City of Kyiv, requesting mobile phone numbers of all persons who had been near the court building at the moment of the event. The mobile operators fulfilled the request[15].

Nevertheless, the problem of communication channel interception due to Crimea occupation and ATO performance has become especially urgent.

In the beginning of April, the Security Service of Ukraine detected nonstandard commands originating from Russian switchboards in the MTS network operation in Crimea. Former Head of NCSRCC Petro Yatsuk stated that this might have allowed collection of data about location of Ukrainian subscribers, phone numbers of their collocutors, as well as redirection of calls through the Russian Federation[16], and that his department had proof of usage of MTS with the purposes of tapping in favor of Russian special services. Respectively, NCSRCC made a decision on violation of licensing terms by the mobile operator[17], intending to make a decision on repeated violation later, which allowed withdrawal of license from the company. The new complement of NCSRCC (instead of suddenly dismissed old one) allowed time till December to eliminate deficiencies and install protection from external tapping into the network[18]. MTS filed a court appeal against the specified decisions and statements.

On July 10, 2014, speaking live on Channel 5, people’s deputy from “UDAR” party Serhii Kaplin stated that all phones of Ukrainian soldiers were being wired by respective Russian services. He also stated that MTS and Kyivstar were completely wired by the Kremlin, and all phones possessed by soldiers were wired by respective services. In his statement, he referred to the fact that this was the official information of respective security sphere agency administrators. At the same time, MTS Ukraine and Kyivstar denied possibility of such situation.[19]

2. Personal Data Protection and Identification Documents

To be noted that today the identification number issued to the State Tax Administration remains the primary electronic classifier underlying collection and processing of personal data of Ukrainian citizens by state power agencies.

The sphere of its application is far beyond the purpose for which it was introduced by the law, which is tax accounting. Without an ID code a person cannot get official employment, obtain access to social security, exercise rights to education, receive scholarship or unemployment allowance, receive a subsidy, open a bank account, register a business entity etc. State power agencies practically began consciously violating the Law of Ukraine on the uniform register of natural persons-tax payers and started using the tax ID number for other purposes not specified by the Law.

Personal data protection is fulfilled on the basis of the Law of Ukraine “On Personal Data Protection” of June 1, 2010[20] which regulates relations concerning personal data protection during their processing.

The law was amended on March 27, 2014[21] and May 13, 2014[22]; at that, while the first amendments were caused by adoption of the Law of Ukraine “On Information” and the Law of Ukraine “On Access to Public Information”, the latter amendments referred to changes in the activity of the Representative of the Verkhovna Rada on Human Rights. The latter also began to control the sphere of personal data protection as well as elimination of certain deficiencies, for instance, return of erroneously deleted definition of a personal consent on personal data processing back into the text of the law.

On May 7, 2014, the Cabinet of Ministers of Ukraine issued Ordinance No. 152 “On Approval of Template, Technical Description and Procedure of Execution, Issue, Exchange, Sending, Withdrawal, Return to State, Destruction of Foreign Passport of Citizens of Ukraine with Contactless Electronic Media, Its Temporary Detention and Confiscation”[23], as amended and supplemented on 23.07.2014 by Resolution of the Cabinet of Ministers of Ukraine No. 288[24]. This Resolution drew the line in the longstanding struggle with the EDAPS Company to decide who shall be issuing foreign passports to the citizens of Ukraine.

Such passport shall be equipped with a contactless electronic medium conforming to the ISO/IEC 14443A standard on record and reading of data and ICAO requirements for electronic documents. According to the above-mentioned Procedure, a citizen shall have the right to receive a passport with a contactless electronic medium. It is envisaged separately that a person can obtain a foreign passport without such medium or refuse to have any data recorded on such medium due to religious beliefs. A foreign passport shall be valid for 10 years, and for persons under the age of 16 — for 4 years.

On July 22, 2014, amendments were made[25] to the Law of Ukraine “On Uniform State Demographic Register and Documents Confirming Citizenship of Ukraine, ID Documents or Documents Confirming a Person’s Special Status”[26]. These amendments stipulate inclusion of digital fingerprints by consent of the person concerned (for foreign passports of citizen of Ukraine, diplomatic passports of Ukraine, service passport of Ukraine, ID card of sailormen, crew member ID, foreign ID card of persons without citizenship or refugee travel document)”. Along with this, it was envisaged that digital fingerprints would be withdrawn from the Register and destroyed after recording them on a contactless electronic medium.

Reviewers have fixed cases where applicants were informed to pay additional fees in addition to those stipulated by the laws when applying for an old foreign passport version. For instance, it was suggested to pay a fee to the State Enterprise “Document” of the State Migration Service for consultation services, although nothing was said about them being optional if you rejected these services. Thus it is necessary to stress upon the need to prevent such schemes when elaborating procedure for a new foreign passports issuance.

Despite the availability of legislation on personal data protection, state power agencies often ignore them in practice, naming various bases as an excuse.

As it was informed earlier, in the beginning of October 2014, the Ministry of Internal Affairs yet again has offered the Ministry of Infrastructure to exercise control over personal data of Urkzaliznytsia (Ukrainian Railroads) passengers from “trouble regions” — Donetsk, Luhansk and the Autonomous Republic of Crimea. Just like at previous attempts, the Ministry of Internal Affairs wanted to adopt the experience of Russia and Belarus in its operations and enter data from travel documents of all passengers to a specialized informational and search system “Rozshuk-Magistral” (Search Main Line). The system would automatically correlate the data to the information on persons being on the wanted list, although there is a real risk that these data would become available to “third parties”[27]. As Ukrzaliznytsia says, so far information about passengers will be shown only in tickets and shall not be entered to a database[28].

According to the information provided by sufferers who insisted on leaving their notifications anonymous, in 2014 there was a practice where police employees collected an individual’s sensitive personal data (information about political convictions, religious beliefs, sexual orientation, participation in the substitution therapy programs etc.)

On January 1, 2014, the Law of Ukraine No. 383-VII “On Amendments to Certain Legislative Acts of Ukraine on Improvement of Personal Data Protection System” of July 3, 2013, which stipulated replacement of personal data base registration with a procedure of notification of the Verkhovna Rada Representative on Human Rights by personal data owners about personal data processing which is especially risky for rights and freedoms of personal data owners. Thus, registration of personal data bases in the State Register of Personal Data Bases was terminated from January 1, 2014. Accordingly, it was envisaged that the Verkhovna Rada Representative on Human Rights would be forwarded all personal data bases and applications on their registration which had been filed before this Law entered into force. On January 10, 2014, the Information Center State Enterprise of the Ministry of Justice of Ukraine forwarded the data bases from this Register to the Verkhovna Rada Representative on Human Rights.[29]

From January 1, 2014, based on the Law of Ukraine No. 224-VII “On Amendments to Certain Legislative Acts of Ukraine on Implementation of State Anticorruption Policy) of May 14, 2013, the Ministry of Justice of Ukraine disclosed information from the Uniform State Register of persons who committed corruption-related violations, on its official website. A free round the clock access is provided to the information about persons brought to responsibility for corruption-related violations, against whom respective judgments have been delivered and legally enforced by courts, as well as to the information about disciplinary penalties imposed for corruption-related violations[30].

In March 2014, the Verkhovna Rada of Ukraine refused to open the State Register of Property Rights to Real Estate. The draft law[31] stipulated disclosure of information on real estate owners and history of real estate operations: purchase and sale, inheritance, mortgage, prohibitions of alienation, encumbrances. The draft law also envisaged that “the data contained in the State Register of Rights regarding state registration of rights and their encumbrances were public and open to general use, except for information with restricted access”. The extract from the register was supposed to be issued “on the basis of a request by any natural person or legal entity”. The people’s deputies also refused to forward the respective draft law for elaboration.[32]

It is clear that such information is of great importance for the society, at that, public interests dominate over personal interests. Thus, disclosure of such information through adoption of a respective law remains a social priority.

Another problem is handling of state registers containing personal data of various types, by the Ukrainian state.

For instance, we are still witnessing an incredible situation when a person can receive information about himself/herself from the state registers for a fee only, moreover, fees may vary depending on a register, although their maintenance is fulfilled at the expense of public funds, and it is obligation of the state to provide a person with the information collected about him/her. For a long time, the Information Center State Enterprise (or otherwise — State Information Center of the Ministry of Justice) was the administrator of registers managed by the Ministry of Justice. Along with this, the actual owners of software created at the expense of public funds were “Art-Master” and “3-T” companies who had received royalties from the state for many years as payment for using their software. Based on these facts, criminal proceedings were initiated. Still, as stated by Andrii Bohdan, a former Government Representative on Anticorruption Policy (2010–2011, 2013–2014), criminal cases concerning the State Information Center of the Ministry of Justice were terminated, and this corrupt scheme had all the chances to survive.[33]

3. Bodily Aspect of Right to Privacy

Such coercive medical procedures as centralized vaccination of children still remain a subject to much debate in the mass media, first of all, due to the quality of vaccines purchased by the Ministry of Health Care. Thereby, some parents reject vaccinations while doctors issue warnings on epidemic threats. Starting from May 2014, newborn children were not BCG vaccinated all over Ukraine due to the prohibition of the Ministry of Health Care as there were certain licensing problems, but starting from November 2014, the Ministry allowed these vaccinations considering their expiration date, and vaccinations were resumed including for those children who had not been vaccinated earlier[34]. As temporary acting Minister of Health care Vasyl Lazoryshynets said, the vaccine stock unblocked for further use would be enough for six months.[35] Just because this sphere is extremely sensitive, vaccine procurements should be arranged in such a way as to dismiss all further questions both regarding vaccine quality and its cost.

Besides, two more questions remain relevant:

1)  the current procedure for involuntary placement in a psychiatric hospital does not protect a person from arbitrary actions;

2)  the sphere of organ transplantation and donation is still poorly regulated, namely in the part of social protection of donors.

4. Right to Privacy in the Autonomous Republic of Crimea

In May 2014, mass searches of the Crimean Tatars dwellings were carried out in the Autonomous Republic of Crimea on suspicion of terrorism.[36]

Later, similar searches with violation of due procedures occurred repetitively. In June 2014, in the village of Kolchugino of Simferopol Region, persons claiming to be Federal Security Service employees broke into the building of the Islamic madrasah and made a search there[37]. As informed by the deputy head of Majlis Aider Adjimambetov, the search lasted for 4 to 5 hours, in particular, personal children’s items were searched; later those who performed the search removed several computers and took the senior teacher with them[38]. Also, another search was carried out in the house of a Crimean Tatar family from the same village.[39]

Reviewers tie these searches into intimidation of the Crimean Tatars to ensure their loyalty to the new government.

The situation of passports certifying the citizenship of Ukraine is yet another significant problem. There were reports about cases when passports had been confiscated from persons suspected of pro-Ukrainian convictions and further destroyed right before the so-called “referendum of March 16”. Similarly, there were some reports about cases of refusals of the Russian government representatives to let Ukrainian passport holders pass through the checkpoints to mainland Ukraine: the mentioned representatives crossed pages in passports and demanded holders obtain a Russian passport. Yet, attempts to confirm or deny such reports based on other sources failed.

Another identification matter is adoption of legislation by the Russian Federation which forced all Crimea residents to take Russian citizenship. Moreover, the conditions to refuse such forced citizenship were extremely complicated and hard to fulfill. On January 1, 2015, the “transition period” when both Russian and partially Ukrainian legislative norms continued to be effective shall end. After expiration of that period, the Crimeans who have no Russian passport or a residence permit would allegedly be allowed to stay on the territory of the peninsula for no more than 90 days. It is quite possible that a lot of opportunities, such as employment, obtainment of an ID number, free medical care and education services, would be inaccessible for the Crimean people who have no residence permit or a Russian passport.[40]

Special attention should be given to adoption of the law by the Russian Federation which requires reporting a multiple citizenship. At the same time, experts say that application of this law in Crimea against the citizens of Ukraine would be complicated as Ukraine would provide no information to the Russian Federation on such citizenship.[41]

We believe that it is expedient for Ukraine to adjudge such citizenship acquisition legally void in the future and not to acknowledge Russian citizenship held by persons who have been forced to receive such citizenship in Crimea.

5. Recommendations

1. To stop using ID codes (tax payer ID) for the purposes other than those envisaged by the law as well as to stop using a phrase “personal number” which is not stipulated by any law.

2. To introduce amendments to the Law of Ukraine “On Uniform State Demographic Register” to reduce the list of documents stipulating registration of biometric data, leaving only a foreign passport in the list, and liquidating the Unified State Demographic Register in the form stipulated in the law.

3. To introduce amendments to laws, providing for disclosure of an annual report containing depersonalized data on intercepting information from communication channels in the process of private investigation measures.

4. The Ministry of Internal Affairs shall stop unsubstantiated gathering of sensitive personal data (information on political convictions, religious beliefs, sexual orientation, participation in substitution therapy programs etc.).

5. To adopt laws and regulations protecting rights of patients, namely in the part of coercive medical procedures and protection of confidential information about health condition.

6. To introduce amendments to the legislation and legal practice to eliminate contradiction between mandatory children vaccination requirements and the right to education for children whose parents consciously refuse to immunize their children, especially when they have medical conditions which are contraindicative to routine immunization.

7. To regulate video surveillance in public places including but not limited to CCTV footage, including requirements for storage and deletion of records.

8. To regulate video surveillance concerning convicts in such a way as to keep the balance between safety requirements and human dignity.

9. To create mechanisms which would prevent abuse of power when procuring vaccines.

10. To exclude information regarding constitutional applications from the list of information of the Constitutional Court of Ukraine intended for official use and marked as such, due to special social interest of the given information and the fact that such information is created within the frameworks of state power agencies activity.

11. To clarify the list of special technical means designed to obtain information in such a way so that a common citizen could independently decide which of them is allowed or prohibited, and update such list according to the level of new technology development.

12. To set a single foreign passport application fee specifying in particular that no additional fees shall be further charged.

13. To adopt the Law which would make access to the State Register of Property Rights to Real Estate more open, considering its social importance.

14. To standardize the system for a person to obtain information about himself/herself from the state registers, cancelling all fees for obtaining information about oneself.

15. To bring the procedure of collecting personal data on parents of school students for the Uniform State Electronic Data Base on Educational Matters (EDEBO) in line with the Law of Ukraine “On Personal Data Protection”.

16. To amend the Rules for Carrying out Activities in the Sphere of Telecommunication (activities to provide Internet access services) taking into account the opinions of dedicated public organizations.

[1] Prepared by Ruslan Topolevski, SIM Center for Legal and Political Research.

[2] http://zakon3.rada.gov.ua/laws/show/z0207-14

[3] Application of the Internet Association of Ukraine on adoption of Rules for Internet access service rendering //

 http://reklamaster.com/articles/id/46399/index.html

[4] Letter No. 97 of 29.05.2014 by NCSRCC concerning the decision of NCSRCC “On Approval of Rules for Carrying Out Activities in the Sphere of Telecommunication (activities to provide Internet access services)”//

 http://www.inau.org.ua/download.php?b37f90a0b5826b9e0be6192da077d062

[5] LOTSMAN system launched at municipal police administration in Lviv //

[6] 70 video cameras spy upon people in Chernivtsi region //

 http://vidido.ua/index.php/pogliad/article/u_chernivec_kii_oblasti_za_ljud_mi_stezhit_70_videokamer/

[7] Eye of Omniscience // http://realgazeta.com.ua/-/

[8] Yevgen Zakharov: Evidence in Maidan Snipers’ Case Destroyed! // http://pravda.if.ua/news-67230.html

[9] All checkpoints around ATO zone to be equipped with video cameras — Ministry of Internal Affairs //

 http://www.unian.ua/politics/951165-usi-blokposti-po-perimetru-zoni-ato-obladnayut-videokamerami-mvs.html

[10] For instance, in France access to stationary video camera records are strictly regulated. Records are kept for 30 days, and then destroyed, except for cases when a crime occurs. Then, to assist law enforcement agencies, records are kept without term limitations and issued upon first inquiry by court or investigating agencies (http://realgazeta.com.ua/-).

[11] 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

[12] http://helsinki.org.ua/index.php?id=1398046972

[13] Ukrainians pleading people’s deputies to abolish liability for “spy key rings” //

 http://vesti-ukr.com/kiev/39485-ukraincy-prosjat-nardepov-otmenit-statju-o-shpionskih-brelokah

[14] www.5.ua

[15] fakty.ua

[16] #ixzz3KepnM2hk;

 http://ain.ua/2014/06/06/527393

[17] http://www.newsru.ua/ukraine/11jul2014/mtskievstar.html

[18] #ixzz3KepnM2hk

[19] http://www.newsru.ua/ukraine/11jul2014/mtskievstar.html

[20] http://zakon1.rada.gov.ua/laws/show/2297-17

[21] #n333

[22] #n13

[23] http://zakon3.rada.gov.ua/laws/show/152-2014-

[24] Ibid.

[25] #n2

[26] http://zakon4.rada.gov.ua/laws/show/5492-17/

[27] M. Scherbatiuk. Police wants to spy on Ukrzaliznytsia passengers //

 http://tsn.ua/blogi/themes/law/miliciya-hoche-stezhiti-za-pasazhirami-ukrzaliznici-373828.html

[28] Ukrzaliznytsia fulfilled requirements of order by State Service of Ukraine on Personal Data Protection //

 http://zpd.gov.ua/dszpd/uk/publish/article/64463

[29] Registration in State Register of Personal Data Bases is terminated //

 http://www.informjust.ua/content/document/1035

[30] Information from the Uniform State Register of persons who committed corruption-related violations //

 http://corrupt.informjust.ua

[31] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=48589

[32] Verkhovna Rada refused to open Real Estate Register //

 http://www.pravda.com.ua/news/2014/03/25/7020254/

[33] Yuliia Lavrysiuk. Andrei Bohdan: Yegor Sobolev knew it all when he went to “Volia” — who Derevianko is and where he got the money from //

obozrevatel.com

[34] Children’s tuberculosis vaccination resumed in Kharkiv //

[35] Ukraine got a 6-month BCG vaccine stocks //

 http://www.ukrinform.ua/ukr/news/ukraiina_na_pivroku_zabezpechena_vaktsinoyu_btsg_1989932

[36] Mass searches in Tatars houses in Crimea. Law enforcement officers visited Dzhemiliev //

 http://www.pravda.com.ua/news/2014/05/15/7025463/

[37] Armed people seized madrasah in Crimea //

 http://www.unian.ua/politics/932292-u-krimu-ozbroeni-lyudi-zahopili-medrese.html

[38] Details disclosed on Crimean Tatar school seizing near Simferopol //

 http://www.hromadske.tv/society/stali-vidomi-podrobitsi-zakhoplennya-krimskotatars/

[39] Armed people seized madrasah in Crimea //

 http://www.unian.ua/politics/932292-u-krimu-ozbroeni-lyudi-zahopili-medrese.html

[40] O. Skrypnyk. Crimeans speaking against annexation are forced to take Russian citizenship //

 http://ua.krymr.com/content/article/26601593.html

[41] A. Shamanska. Russian law on double citizenship not effective in Crimea //

 http://www.radiosvoboda.org/content/article/25432785.html