6. RIGHT FOR PRIVACY
The right for privacy in Ukraine is protected at the constitutional level. Article 32 of the Constitution articulates as follows: «No one shall be subjected to interference in his private life and family matters, except when such interference is stipulated by the Constitution of Ukraine». Separate aspects of the right for privacy are protected by separate articles of the Constitution: protection of inviolability of domicile – by Article 30 of the Constitution, privacy of correspondence, telephone conversations, telegraph, and other communications – by Article 31, prohibition of collection, storage, use, and dissemination of confidential information about a person without his consent – by Article 32 of the Constitution, prohibition to subject a person to medical, scientific, or other experiments without his free consent – by Article 28 of the Constitution.
The exhaustive list of legal grounds and conditions for violation of the right for privacy enshrined in the law goes along with discrepancies and contradictions in the law enforcement practice.
Searches are still widely used in cases initiated for political reasons to exercise pressure on political, trade union and public figures.
For instance, on January 31, 2012, the apartment of Arsen Avakov, leader of Kharkiv regional organization of the “Batkivshchyna” Party, where he had been living for more than two years, was searched, and later the apartment, where his family lives, was searched, too, and during this search the police confiscated a photocopy of his passport, the identification card of the deputy of the regional council and money.
In May 2012, police officers searched the office of the independent trade union «Zakhyst Spravedlyvosy» (protection of justice) and made an attempt to confiscate the organization's documents, but failed to mention what the goal of this visit was. Mykhailo Volynets, People's Deputy (Yulia Tymoshenko's Bloc 'Batkivshchyna'), who is the vice-head of the trade union, believes that their office was searched to confiscate documents that belonged to Andriy Pavlovsky, People's Deputy (Yulia Tymoshenko's Bloc 'Batkivshchyna'), as their community liaison offices operated in these premises. At the same time Andriy Pavlovsky connected this search to the public statement Volynets had made the day before that independent trade unions were planning wide protest actions against adoption of the new Labor Code and the Law on peaceful assembly. The office employees refused to hand the documents to the police officers.
According to the Ministry of Internal Affairs' official statement, the search was conducted in connection with the necessity to perform graphological expert assessment, for which they required an original of a document kept in the central office of the All-Ukrainian trade union «Zakhyst Spravedlyvosy». This was allegedly necessary for the investigation of a criminal case concerning forgery of documents in the neighboring oblast.
In this regard, it is noteworthy that in June Gennadiy Moskal claimed that law enforcement agencies in Donetsk oblast had received an order to collect information concerning politically active members of the opposition, as well as concerning their immediate family, relatives and company, including photographs and biographical particulars of members of Donetsk regional organizations of the «Front Zmin» and «'Batkivshchyna' parties.
Police officers denied such facts. Although, according to the statement of Oleksander Yaroshenko, head of Donetsk branch of the «Front Zmin» Party, during the last two years of their operation, 18 criminal cases have been initiated, 38 searches have been conducted and 47 court sessions have been held against members of the opposition parties.
On January 20, 2012, the Constitutional court of Ukraine made a ruling in the case concerning official interpretation of provisions of paragraphs 1 and 2 of Article 32, paragraphs 2 and 3 of Article 34 of the Constitution of Ukraine on the constitutional submission from Zhashkiv rayon council of Cherkasy oblast. Among other things, it considered the issue concerning what should be considered as information about personal and family life and, in particular, whether such information is to be treated as confidential information about a person; as well as, whether collection, storage, use and dissemination of information about a person is intrusion into his or her personal and family life.
In its ruling, the Constitutional Court of Ukraine, in particular, noted: «a systematic analysis of provisions stated in paragraphs 1 and 2 of Article 24, paragraph 1 of Article 32 of the Constitution of Ukraine gives grounds for the Constitutional Court of Ukraine to believe that the right for inviolability of personal and family life is guaranteed for each person regardless of their gender, political, property, social, language or other attributes, as well as the status of a public person, in particular, public servant, state or public figure that plays a certain role in political, economic, social, cultural or other sphere of state and public life». It should be pointed out that the Constitutional Court of Ukraine groundlessly and inadmissibly expanded protection from discrimination to the status of a public person and equated necessity of protection of the right for protection of private life for a common citizen and a public person.
In such a way, to the opinion of the Constitutional Court of Ukraine, «information about personal and family life of a person includes any information and/or data about relations of property and non-property nature, circumstances, events, relationships, etc., concerning a person and members of his or her family, except for information, as stipulated by the laws, related to performance of functions or duties by the person that holds a position in an governmental agency or a body of local self-government. Such information about a person is confidential».
In May 2012, Anatoliy Ilchenko from Mykolayiv, who was known for his speeches in protection of the Ukrainian language, was detained by police officers on Wednesday in Kyiv after the picketing of the Ministry of Internal Affairs, and for some time he was held in the psychiatric ward.
Igor Mykhalko, speaker of the Chief Administration of the Ministry of Internal Affairs in Kyiv, claimed that after Ilchenko was detained for allegedly «obscene» poster concerning Minister Zakharchenko, they received information from Mykolayiv that Ilchenko was registered as a person with mental illness and so they called an ambulance from a local clinical psychiatric ward. Later Ilchenko's representative informed that he was released from the psychiatric ward. In this regard, especially taking into account the decision of the European Court of Human Rights «Fedorov and Fedorov against Ukraine», it is inadmissible to use psychiatric treatment as punishment for expressing one's opinion.
In May 2012, the Security Service of Ukraine without proper service documents confiscated from Donetsk City Commercial Dental Care Center medical records of several thousand patients.
In June 2012, Volodymyr Landyk, MP from the Party of Region, filed to the Prosecutor's Office a demand to initiate a criminal case for violation of the privacy of correspondence by the news website LB.ua under Article 163 of the Criminal Code (violation of privacy of correspondence committed against state or public figures). In a piece published on November 18, 2011, named «Landyk Sr. Saving His Son with Help of Spin Doctors and «Right» Comments on websites», the news website published photos with Volodymyr Landyk in the Parliament's debating chamber exchanging text messages concerning the fate of his son, who at that moment was on trial on a charge of beating a young woman. After the editor-in-chief of LB.ua officially apologized to the MP, the Prosecutor's Office closed the case on the grounds that «the news website's violation of the law in this specific situation did not cause significant harm». At the same time, the reviewers believed that if the news website had filed an appeal with the European Court of Human Rights, the right for dissemination of socially significant information would have prevailed over the right of inviolability of private life of a member of parliament.
In September 2012, it became known that the state penitentiary service installed surveillance cameras owned by the agencies of Internal Affairs in the Ukrzaliznytsia hospital in the ward, where Yulia Tymoshenko, ex-Prime Minister, is being held. Several cameras were installed by police in the hospital corridors. Later, Yulia Tymoshenko stated that video cameras were installed also in the bathroom, in the shower and in the room where she has meetings with defendants. Later this was confirmed by People's Deputies Oleksandra Kuzhel, Tetiana Sliuz and Liudmyla Denysova, who visited Yulia Tymoshenko in the hospital ward. Also, some videos from the camera at the colony emerged online, which, probably, were edited in such a way so that to put together actual and forged recordings.
In October 2012, patients of Lugansk regional out-patient department for drug addicts informed that their passports were being collected in the «voluntary-compulsory» order – allegedly to «ensure their voting turnover», according to Pavlo Skala, Policy and Advocacy Program Leader at the international charitable foundation «International HIV/AIDS Alliance in Ukraine». The passports were taken from more than 100 patients with drug addiction, who receive their substitution therapy treatment on a daily basis as outpatients, with the promise that they would get their passports back in the morning on the elections day on October 28. The patients confirmed this. At the same time, Anna Kniazeva, head of the out-patient department for drug addicts, claimed that they had been taking from their patients with drug addiction not passports, but their photocopies – in connection with the inspection by the Controlling and Auditing Service planned for November, but some patients had been unable to make a photocopy and because of that were giving their actual passports, but all these passports have been returned to them already.
In November 2012, the wife of Yuri Lutsenko, ex-Minister of Internal Affairs, Iryna Lutsenko addressed Oleksander Lisitskov, head of the state penitentiary service, concerning wiretapping of her telephone conversation with her husband. She claimed that this followed from the content of remarks by the officers of the penitentiary service, in which they voiced issues she had been discussing only with her husband.
Protection of personal data is done on the grounds of the Law of Ukraine «On Protection of Personal Data» (adopted on June 1, 2010), which regulates relations concerning protection of personal data during their processing.
The Law's effect covers activities on creation of databases of personal data and processing of personal data in these databases except for databases of personal data, created by an individual – exclusively for non-professional personal or household needs; by a journalist – in connection with performing their professional duties; by a professional creative worker – for their creative activities. This Law regards all personal data, except for depersonalized personal data, as limited access information, except for the cases, in which the Law prohibits to regard personal data of certain categories of citizens or their exhaustive list as limited access information. In particular, the category of limited access information is not applicable to personal data of an individual that runs to hold or holds an elected office / position (in representative bodies) or a position of public servant of the 1st category, except for information defined as such in compliance to the Law. In compliance with the Law, processing of personal data has to be performed only with the pre-established purpose, and if this purpose were changed consent must be obtained from the subject of personal data for its processing according to the new purpose, and the personal data themselves must be comparable to the purpose of their processing.
It is not allowed to process the data about an individual without his or her consent, except for cases defined by the law, and only in the interests of national security, economic well-being and human rights. And after the time period necessary for their purpose is over, personal data must be depersonalized.
Although this Law was adopted as part of implementation by Ukraine of provisions of the Convention of the Council of Europe for the Protection of Individuals with regard to Automatic Processing of Personal Data, but its wording turned out to be not very accurate and it manifests some drawbacks and contradictions. For starters, failure to differentiate between general (surname, name, patronymic, nationality, place and date of birth) and sensitive personal data causes excessive hindrances and leads to grotesque situations when recording a person's surname and name can constitute – from the point of view of the Law's corresponding provisions – a violation of this Law. For instance, when a university professor keeps records of students' marks, in this Law's terms it is in fact processing of personal information.
Similarly, the requirement concerning necessity to process personal data for scientific, statistical and historic purposes in the depersonalized form can lead to an absurd situation, when using a person's surname, name, and patronymic in scientific and historic texts can be considered a violation of this Law, as can be collection of information about well-known historic figures, publishing of books about their life or memoirs, which contain a list of persons mentioned in them.
An issue that is still unregulated is the issue concerning dissemination of personal data, if they constitute social interest, in particular, in the context of the Law «On Access to Public Information». It should be also pointed out that the Law gives no answers concerning personal data of persons that died. There have been cases when researchers were denied access to archive materials, which contain data about persons that died, on the grounds of protection of personal data of these persons.
It is unclear what is to be done in case, when a person refuses from processing of personal data under conditions of contractual relations between the parties, for instance, in case of a warranty replacement of a malfunctioning household appliance or in case of labor relations, on in case of realization of the right for education by a person, who does not agree to his or her personal data being processed or submitted to some third parties.
The Law stipulates the duty of the holder of personal data to inform only in writing the subject of personal data about their rights in connection with inclusion of their data in the database of personal data within 10 working days since the date of such inclusion. But it is unclear what should be done in case, when there is no postal address of such person available.
Unclear definition of conditions of removal of personal data can cause numerous conflict situations related to demands of subjects of personal data to remove their personal data, while without such personal data corresponding social relations are impossible altogether.
The Law also does not cover situations in case of processing of personal data disseminated in mass media.
Since January 1, 2012, legal responsibility for failure to provide information about databases kept by legal entities and individuals under the effect of the Law became effective.
On July 1, 2012, the penal sanctions for violation of the Law On Protection of Personal Data became effective. Violation of the Law entails responsibility in the amount of the fine from UAH 8.5 thousand to 17 thousand or correctional labor up to 2 years or restriction of liberty for the period up to 3 years and up to 5 years for repeat violation.
On July 16, 2012, the Procedure of performance by the Personal Data Protection State Service of state control over observance of legislation on protection of personal data came into effect.
It should be mentioned that currently the identification number issued by the state tax administration is still the primary electronic classifier, based on which governmental agencies conduct collection and processing of personal data of citizens of Ukraine. The sphere of its application goes far beyond its purpose as intended by the law that introduced it – taxation management. If a person has no identification code it is impossible for him or her to get officially employed, to get access to pension coverage, to enjoy the right for education, to receive scholarships or bursaries and unemployment benefits, to obtain subsidies for utility bills, to open a bank account, to register as a private entrepreneur, to receive the state education certificate, etc. That is why, in fact, governmental agencies have adopted an administrative practice of deliberate violation of the Law of Ukraine on Unified register of individuals-taxpayers and they have been using the taxpayer's number for other purposes, not intended in this Law.
On October 2, 2012, the Verkhovna Rada of Ukraine adopted the Law «On Unified State Demographic register», which stipulates introduction of electronic passports for Ukrainian citizens. After wide-scale appeals by religious and non-governmental organizations to the President, on October 30, 2012, he vetoed this Law.
On November 20, 2012, the Verkhovna Rada of Ukraine adopted the Law «On Unified State Demographic register» in the new wording with suggestions from President Victor Yanukovych, with votes for it from 243 MPs. It should be mentioned that during the voting on this Law, a part of the MPs' votes was received by using the voting cards of MPs who were personally absent from the hall. This obviously makes legitimacy of this Law under question.
The Law stipulates excessive and inadequately wide inclusion of biometric data into the documents that identify a person. For instance, in compliance with this Law the following documents to identify a person will be issued: the passport of a citizen of Ukraine; the passport of a citizen of Ukraine for going abroad; the diplomatic passport of Ukraine; the service passport of Ukraine; the seafarer's identity card; the crew member identity card; the identity card for return to Ukraine; the temporary identity card of a citizen of Ukraine; the driver's license; the identity card of a stateless person for going abroad; the identity card for permanent residence; the identity card for temporary residence; the migrant's identity card; the refugee's identity card; the refugee's travel document.
Although the Law, in particular, stipulates introduction of electronic passports – documents with an electronic carrier of biometric information for going abroad in compliance with the standards of the International Civil Aviation Organization (ІCАО), but in this case it would have sufficed to introduce only issuing of the foreign passport. That is why, reviewers believe that adoption of this Law is related to lobbying efforts of EDAPS Consortium, which has been mentioned numerous times as connected to such draft laws.
The Law contains a statement, according to which persons that refuse, because of their religious beliefs, to have their personal information on a no-contact electronic carrier, are guaranteed a right not to receive such a document or not to have their information on a no-contact electronic carrier. This right is realized by means of submission of a notification to the relevant central body of executive power about the person's refusal to receive a document that contains a no-contact electronic carrier or to have their information on such carrier.
The Law stipulates that the passport of a citizen of Ukraine is manufactured in the form of a card that contains a no-contact electronic carrier of information, and it must be issued to a person within 30 calendar days since the date the application for it has been submitted. The electronic passport is supposed to include the following data: the name of the state, the name of the document, a person's surname and name, gender, nationality, date of birth, the unique number of the record in the register, the number of the document, the expiry date of the document, the date the document was issued on, the authorized body that issued the document, the place of birth, the person's photograph and signature. If a corresponding application is submitted, the passport can also include the data of the person's parents or guardians.
Until now, the issue concerning the legal grounds of surveillance in public areas has not been properly regulated. At the same time, police does not stop trying to install video cameras in public areas on the wide scale. For instance, in Kyiv it is planned to install 11 thousand video cameras.
In compliance to the European standards, Surveillance can take place, but it must comply with the following requirements: the zones under surveillance must be marked regularly; an independent body should be established at the national level for independent control concerning installation of surveillance cameras, as well as storage and use of information about a person.
Obligatory medical procedures, like centralized vaccinations of children, are still being actively discussed in mass media, first of all, in connection with quality of vaccines for inoculation procured by the Ministry of Health Care. In connection with this, some parents refuse to have their children inoculated while medical doctors warn about a threat of epidemics.
On November 20, 2012, the new Criminal Code of Process became effective, which regulated several issues concerning the right for privacy, which earlier were not regulated. In particular, Article 253 stipulates that persons, whose constitutional rights were temporarily limited during undeclared investigatory actions, as well as a suspect, his or her defense attorney, during twelve months since such actions are seized, but not later than submission of the indictment to the court, have to be notified in writing by the prosecutor or by the investigator under the prosecutor's order about such limitation. But currently, the practice of application of the norms of the Criminal Code of Process concerning undeclared (investigatory) actions is still insufficient to come to a conclusion that it complies with the right for privacy.
The Ministry of Health Care developed a draft law, in compliance to which each Ukrainian citizen can become an organ donor postmortem, if they do not submit their written refusal to do so. At the same time, the population demonstrates a negative attitude to the presumption of consent for organ transplantation.
1. The Law of Ukraine «On Protection of Personal Data» should be improved by elaborating it and removing the current gaps and contradictions, so that it, in particular, includes the following principles:
– general (surname, name, patronymic, nationality, date and place of birth) and sensitive personal data are differentiated, and different access modes are assigned for them;
– different identification numbers (databases of different governmental agencies) must be used separately, it is not allowed to create a unified code for accumulation of all information about a person;
- exchange of the collected information between governmental agencies must be clearly regulated and be performed on the grounds of the law or on the court order with notification of the person about this and with an opportunity to appeal such actions in court.
2. The administrative practice of illegal use of the taxpayer's identification number (code) for other purposes not stipulated by the law must be stopped. Application of the notion of «personal number» must be stopped, too, as its use is not stipulated by any laws.
3. Amendments should be made to the Law «On Unified State Demographic Register» to reduce the list of documents that require recording of the biometric data and to keep only the foreign passport in this list.
4. Amendments should be made to the legislation to stipulate annual publishing of the report with depersonalized data concerning retrieval of information from channels of connection in the course of undeclared investigatory actions.
5. The Ministry of Internal Affairs should stop groundless collection of sensitive personal data about persons (information about political affiliations, religious beliefs, sexual orientation, participation in the substitution therapy program, etc.).
6. A law and other regulatory acts should be adopted to protect rights of patients, in particular, concerning obligatory medical procedures and protection of confidential information about the state of health.
7. It is necessary to make amendments to the legislation and legal practices so that to remove contradiction between the obligatory nature of vaccinations for attending children institutions and the right for education for children, whose parents deliberately refuse to have their children vaccinated, especially when such vaccinations are counter-indicated for the child or can harm him or her.
8. Surveillance in public areas should be regulated, including conditions of storage and deletion of records.
9. The practice of using searches as a politically motivated tool to secure loyalty and persecute political opponents must be stopped.
10. Surveillance of inmates must be regulated in such a way that balances the security requirements and human dignity.
11. The legislation concerning preservation of the secret of adoption even from the child him- or herself should be amended. In particular, exceptions must be made from the provisions of the legislation that stipulate the absolute secret of adoption (articles 226, 229, 230 of the Family Code, article 168 of the Criminal Code).
 Prepared by Ruslan Topolevsky, Center for Legal and Political Research «SIM»
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