5. The right to privacy
The right to privacy in Ukraine is protected by constitutional guarantees. For example, article 32 of the Constitution of Ukraine provides: “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 concrete definition of protection of individual components of privacy is carried out by their protection in certain articles of the Constitution: protection of the inviolability of his or her dwelling place--article 30 of the Constitution of Ukraine, privacy of mail, telephone conversations, telegraph and other correspondence--article 31 of the Constitution of Ukraine, the collection, storage, use, and dissemination of confidential information about a person without his or her consent shall not be permitted--article 32 of the Constitution of Ukraine, no person shall be subjected to medical, scientific or other experiments without his or her free consent--article 28 of the Constitution of Ukraine.
Despite the existence of constitutional protection and protection at the level of relevant laws the enforcement meets with some controversies.
Secret search, surveillance, video cameras in public places, and phone-tapping
In February 2013 in Kharkiv the Office for Combating Economic Crimes attempted to search the office of lawyer Atiskov, who conducted the case of Arsen Avakov, under the guise of a search of the company, which had not been there for a long time. Only the intervention of the people's deputies with reference to relevant articles of laws banning the arbitrary search of the lawyer's office permitted to stop the search[2].
On March 30, 2013, in Chernivtsi, illegal surveillance of Arseniy Yatseniuk, Head of the Batkivshchyna Party, was detected and representatives of opposition parties caught those, who conducted it. According to the press service of the Batkivshchyna Party, the vehicle belonged to the SSU surveillance service. However, Pavlo Deyneko, spokesman for the Chernivtsi SSU, refused to comment on this situation[3]. Later the action was undertaken against Yatseniuk on charges of interfering in the activities of the law enforcer[4].
In September, the officers of the Ministry of income and taxes searched “Era FM” radio host Tetiana Demyanenko during which they committed a number of procedural infringements, but failed to find anything[5].
The politically motivated searches continued.
Thus, on December 9, 2013 the MIA and SSU officers searched the office of the political party. Though the MIA maintained that the search took place in the building on the 19-B, Turivska Street and not on 13, Turivska Street, where the office of the Batkivshchyna was situated at the time. Interestingly, the judgment authorizing the search specified the former address. During the storm of the office the windows were damaged, doors broken, servers were searched for and confiscated[6]. The officers also seized computers of the online edition Tsenzor.net, whose office was next door to the office of the Batkivshchyna[7].
There were also searches in the apartments of individuals who were beaten and arrested after clashes on Bankova Street on December 1. On December 9, the officers searched the apartment of Yehor Previr, one of those none arrested people. According to journalist Ivanna Kobernik, the search started without waiting for the arrival of lawyers and during the search the officers seized the system unit of the computer, blank application form for entry into the organization Bratstvo and propaganda materials of the Bratstvo of Dmytro Korchynsky[8]. The next day, the apartments of Mykola Lazarevsky, Yaroslav Prytulenko and Vyacheslav Zahorovok were searched as well[9].
On December 10, 2013 the National Commission for the State Regulation of Communications and Informatization approved[10] the Telecommunication Sector Regulations (rules for the Internet access services)[11]. The providers and their associations gave careful consideration to the draft of these rules. The Internet Association of Ukraine opposed the enforcement of these rules, because these rules were contrary to the Law of Ukraine "On Telecommunications", which provided for the establishment of common rules for the all kinds of activities in the telecommunications sector, and not any separate rules for the Internet access services. The regulations also do not take into account the technical, legal and organizational features of Internet access services and contrary to the Law of Ukraine "On Telecommunications" they distort the concept of telecom operator and extend existing technological requirements for telecommunication operators to Internet service providers and other entities in telecommunications. So, they are obliged to install at their own expense on their telecommunications networks hardware necessary to conduct investigation and search operations for the authorized bodies. According to the Internet Association of Ukraine, these measures are intended to create illegal instruments of additional regulatory pressure on Internet providers[12].
The issue of functioning video cameras in public places as part of solving crimes remains unsolved. In the first place, the chiefs of the bodies of internal affairs wish to install as many cameras as one can linking them into a unified system with a central control room. However, there is no requirement, for example, concerning the storage of records and access procedure.
For example, the Ministry of Internal Affairs of Ukraine developed the draft enactment of the Cabinet of Ministers of Ukraine on adoption of state target-oriented program of law enforcement concerning the installation of video surveillance and fast response in public places. The Ministry of Internal Affairs believes that all settlements Ukraine need at least 26 thousand video surveillance systems. In 2013, there were 136 cameras in Kyiv and 800 in Donetsk. It is noteworthy that this Concept stipulated the state budget allocation of about ₴5.99 bn for the purchase of video surveillance systems from 2013 till 2016[13].
According to European standards[14], the video surveillance is acceptable; however, it must meet the following requirements: the monitored areas must be systematically designated; an independent national body should be set up for the independent control of the establishment of surveillance, as well as the storage and use of personal data.
On January 8, 2013 sentenced former Prime Minister Yuliya Tymoshenko, who was imprisoned in the Central Clinical Hospital of Ukrzaliznytsia (Kharkiv), left her ward and moved to the bathroom to protest the installation of cameras which enabled round-the-clock surveillance. These cameras were installed in September 2012[15].
On February 22, 2013 the administration of the State Penitentiary Service of Ukraine, after the televised wish of Viktor Yanukovych, instructed the Chief of Kachanivska Penal Colony to remove surveillance cameras in her ward. Tymoshenko returned to the ward.
Another issue is the question of clarifying the regulation of trading in technical means of data accessing.
On February 7, 2013 the SSU officers based on the judgment of court searched the apartment of Kherson journalist of the Dorozhny Control Newspaper Vytaliy Kosenko looking for prohibited key-chain mini-cam for motor vehicles[16]. Such persecution was a part of the tactics intended to subdue the activists of this organization, which filmed the illegal actions of the traffic militia. Prosecution under article 359 of the Criminal Code of Ukraine became one of the key activities of the SSU. Thus, only in 2013 under this article the courts of Ukraine passed about 100 sentences.
Article 359 of the Criminal Code of Ukraine establishes liability for illegal purchase, sale or use of special means of obtaining information; however, it is impossible to determine what should be considered as such gadget. Thus, the situation of legal uncertainty prevails when a person cannot make out whether her/his action is subject to criminal liability. According to current practice, such determination needs expert examination[17]. The prohibition by the Security Service of Ukraine of the sale of Google Glass may serve an example. At first, the SSU representatives maintained that the sale is potential, and then they banned to use them[18].
Wiretapping of citizens by the government agencies is still an urgent problem due to decoding of the telephone conversations that get into the hands of journalists. For example, former Deputy Head of the Security Service of Ukraine Olexandr Skipalsky during a press conference said that the secret services of Ukraine had all necessary technical means for tapping both at home and abroad[19].
The militia also used to locate citizens by the cellular phone number and then dialed the owners trying to identify them[20].
Protection of personal data and identificatory documents
It is noteworthy that currently the identification number issued by the State Tax Administration remains the main electronic classifier on the basis of which the gathering and processing of personal data of the citizens of Ukraine are performed by governmental authorities.
The scope of its usage goes beyond the purpose for which it was introduced: tax accounting. Without an identification code there cannot be legal employment, access to pensions, realization of the right to education, collection of scholarships and unemployment benefits, obtainment of subsidies, opening of bank accounts, registering business entities, obtainment of degree credentials and more. That is, actually, there evolved an administrative practice of conscious breach by state authorities of the Law of Ukraine on integrated register of natural persons--taxpayers and use of tax number for purposes not covered by this Law.
The protection of personal data is carried out according to the Law of Ukraine "On Personal Data Protection" (adopted on June 1, 2010)[21], which regulates the relations connected with the protection of personal data during their processing,
On January 25, 2013 the Kyiv District Administrative Court passed judgment on the action of journalist Serhiy Leshchenko which denied issuance of the constitutional petition for public inspection. It read: “In line with the instruction of the Head of the Constitutional Court the classified documents “For Official Use Only” include information on constitutional files at all stages of constitutional proceedings… The information contained in the constitutional files pertains to personal data of citizens”[22]. This absurd attribution of public information, which is created during the proceedings, to personal data is nothing more than a way obstruction in getting socially significant information. And taking into account the fact that the Constitutional Court of Ukraine, which is supposed among other things to protect the constitutional rights, takes up such position, the situation is all the more absurd.
On February 15, 2013, a round table “Changes in the legislation on personal data protection: achievements, problems and ways to tackle them” took place; it was organized by the Ukrainian Association for protection of personal data with support of the State Service on Protection of Personal Data. Olexiy Mervinskiy, Head of this Service, said that on February 7, 2013 for the first time the legal entity that had violated the legal requirements for the protection of personal data was fined ₴3,400. As of February 2013 the state service issued about 50 orders intended to eliminate violations of the law on protection of personal data. He also said that at the time it more than two million applications for registration of personal data were filed, of which more than 90,000 applications were processed and about 30 thousand were registered[23].
On January 30, 2013 the government adopted changes to the list of information subject to inclusion in the National Register of personal data under the provisions of the National Register of Personal Data Base and its scheme[24].
Under the changes, the Cabinet of Ministers dismissed holders of personal data from the obligation of registration of personal data processing of which is connected with the provision and implementation of employment relationships and personal databases that contain lists of the members of public and religious organizations, trade unions and political parties.
At the same time they supplemented the list of information to be entered into the State Register of personal data. In particular, the Register shall include information about third parties to which personal data are transmitted as well as transboundary transmittance of personal data. In addition, there shall be information on the composition of personal data processed.
In addition, the list of information publicly available on the website of the State Register of Personal Data has been expanded. In particular, the information on the composition of personal data processed, information about third parties to which personal data are transmitted, information on the transboundary transfer of personal data, information about other managers of personal data including name and location for legal entities and surname, name and patronymic (if any) for individuals shall be in the public domain.
On July 3, 2013 the Verkhovna Rada of Ukraine adopted the Law of Ukraine “On amendments to certain legislative acts of Ukraine concerning the improvement of the protection of personal data”[25], which, in particular, provided that from 1 January 2014 the Public service for the protection of personal data will be liquidated and the registration of personal data will be replaced with notification by the holders of the personal data of the Ombudsman of Verkhovna Rada of Ukraine about processing of personal data which are of particular risk to the rights and freedoms of the subjects of personal data.
The organs of state power and local self-government, as well as the holders taking the risk of carrying out data processing shall determine the department (person) responsible for the organization of protection of personal data during their processing. The information on the above responsible department or person should be brought to the notice of the Ombudsman of the Verkhovna Rada of Ukraine which shall ensure its publication.
The law gives a new definition of the personal data holder. Now this is a physical entity that determines the purpose of personal data processing, composition of these data and procedures of processing, unless otherwise provided by law, subject of personal data as physical entity whose personal data are processed, and the third party.
It also specifies that if the new goal of the personal data processing is incompatible with the previous one, the consent of the subject to such a change is necessary. The list of sensitive data shall include additional biometric and genetic data, though the accusation of crime shall be excluded.
It is assumed that the person shall be entitled to know the source of the collection and location of her/his personal data, purpose of processing, location or place of residence (stay) of the holder of the personal data, and to receive no later than thirty calendar days after receipt of the request, except cases stipulated by law, the answer about whether her/his personal data are processed, and to receive the contents of such personal data. In addition, s/he may file a complaint concerning processing of her/his personal data to the Ombudsman or a court.
It has been legitimized that the Ombudsman shall have the right to carryout inspections both upon complaints and on her/his own initiative, access to any information (documents) (classified data including) of owners or personal data administrators necessary for control of relevant databases or card files, classified information, adopt regulatory legal acts for personal data protection, use results of inspection and consideration of appeals to issue mandatory instructions on the prevention or elimination of violations and provide recommendations for the practical application of the legislation, clarify the rights and obligations of the relevant persons, draw up reports on calling to administrative account and take the cases to court and more.
It also assumes that processing is permitted without the law on protection of personal information by an individual for personal or household use, as well as solely for journalistic and creative purposes provided that the balance between the right to respect for private life and the right to freedom of expression is preserved. It should be noted that the force of the articles governing the general questions of personal data, sensitive personal data and human subjects (art. 6-8) may be restricted to protect the interests of national security, economic well-being and protection of the rights and freedoms of subjects of personal data or other persons. The administrative responsibility was also established for violation of obligations to notice and react to the instructions of the Ombudsman, violation of the rules of personal data processing.
It should be noted that the Law mistakenly contains the previous definition of the State Register of Personal Data (§4 of article 2 of the Law); however, the definition of personal data subject's consent (§5 of article 2 of the Law) has been removed. Obviously this is a mistake that needs to be corrected.
In March 2013, the representatives of the two committees of the Verkhovna Rada of Ukraine sent an open letter to the Head of the EU Delegation in Ukraine Jan Tombiński signed by Chairman of the Committee for European Integration Hryhoriy Nemyria and First Deputy Chairman of the Committee on Human Tights Andriy Shevchenko on the state of the protection of personal data in Ukraine
In particular, it stated that under the pretext of meeting the requirements of the EU Action Plan on Visa Liberalization immediate amendments were made to the law “On the unified state demographic register and documents certifying the citizenship of Ukraine, personal identity or her/his special status” that creates significant risks of violation of fundamental rights and freedoms. They emphasized that the law gives excessive powers to the authorities, promotes corruption and the Unified demographic registry violates the human right to non-interference in her/his personal life and can lead to total state control over Ukrainians. Due to the fact that in order to cover undemocratic steps the government is using European rhetoric, the authors of the letter asked the representatives of the European Union to dissociate themselves from such dubious innovations initiated by the government.
The authors of the letter stressed that Ukraine has so far no “independent state supervisory board for the protection of personal data” and also drew attention to the “inconsistencies of legislation on personal data protection with the law on access to public information”[26].
This letter was probably devised in connection with the fact that on March 13, 2013 the Cabinet of Ministers of Ukraine issued Resolution no. 185[27], which in pursuance of the Law of Ukraine "On Unified State Demographic Register and documents proving citizenship of Ukraine, prove identity of a person or her/his special status" approved sample documents with an electronic chip bearing biometric data and determined the pattern of their production, issuance and destruction.
Although the introduction of biometric passport is one of the requirements and standards of the European Union under the European integration process, the need to use biometric chips in other documents that are circulated only in Ukraine and characterize the social, civil, financial and special status of the person is doubtful. In fact they intended to establish a single centralized system for the collection of personal data.
However it is worth noting that the whole regulation was intended to satisfy the needs of only one structure, i.e. the EDAPS Consortium owned by private individuals. This consortium has become a monopolist in the production of passports and other ID documents many and set excessive prices[28]. It is also noteworthy that on April 25, 2013 the President appointed Vasyl Hrytsak with which journalists associated creation of EDAPS the Deputy Chairman of the State Migration Service (SMS) (which was responsible for issuing these documents).
On June 3, 2013, on the site of Visnyk Derzhzakupivel, appeared the information that the SMS determined the winner of the competition for the production of electronic (biometric) documents: ID cards and foreign passports. Obviously the EDAPS Consortium became the winner. Other three contestants were not allowed to participate in the tender. Director of the Printing Facility Ukraine Maxym Stepanov appealed against tendering of Migration Service to the Antimonopoly Committee.
On June 7 the Antimonopoly Committee invalidated the results of the tender of the State Migration Service for procurement of biometric passports[29]. Accordingly, on June 12, 2013 the Cabinet of Ministers of Ukraine stopped the government decree no. 185[30].
Presumably, the government decided to replace the production of EDAPS by Printing Facility Ukraine, which purchased all necessary equipment for execution of this order.
On September 11, the Cabinet of Ministers of Ukraine approved a plan to implement biometric passports. In order to create the Unified State Demographic Register the Government of Ukraine allocated ₴793.3 million up to 2016[31]. In November 2013, the Cabinet of Ministers of Ukraine out of these funds allocated for the Ministry of Internal Affairs ₴295.1 million for creation and operation of this register[32].
However, it is clear that the existence of this law in its current form poses a potential threat to the right to privacy.
The observers also noted the presence of the practice, according to which, during processing of foreign passports at the Department of Citizenship, Immigration and Registration of Persons, except for the payments for a passport specified by the law, the visitors were informed about the need to pay additional charges. For example, they were asked to pay the Public Enterprise “Document” of the State Migration Service for the provision of consulting services, but with no mention of their optionality, if you turned down the proposal.
On December 3, 2013 the Supreme Court of Ukraine ruled that for obtaining passport the citizen has to pay only ₴170[33]. However, in practice it turned out that the SMS officials did not consider this ruling as binding for an indefinite number of persons. Presumably, in order to obtain a passport for such a price other persons should again go to the law[34].
Despite the existence of legislation on personal data protection, in practice, public authorities often ignore it guided by different reasons.
As of 6 April 2013 the Ukrzaliznytsia returned to the so-called “personalized tickets” with passengers’ personal data put down. Obviously, this personal information was used for purposes far removed from initial collection targets. For example, there were cases when the militia removed opposition-minded people from trains, probably knowing which car they were riding in. For example, on May 17, in the Donetsk Oblast, the militia removed from the train “Mariupol-Kyiv” 30 supporters of the All-Ukrainian Union "Svoboda" on their way to action “Arise, Ukraine!” in Kyiv. According to the All-Ukrainian Union "Svoboda", militia knew in advance about who was going to go by train to the event from Mariupol because the officers addressed them by name and surname. Later the media published a copy of the letter sent by Department Head of transport militia Vyacheslav Pysarenko to the Head of Ukrzaliznytsia Serhiy Bolobolin. The letter upheld the need to introduce in Ukraine information retrieval system “Search-Mainstream” intended to automatically hunt for people who “represent operational interest”, identification of individuals, and analysis of information. For this purpose, the Ukrzaliznytsia was proposed to indicate in the travel document not only the first and last name, but also the series and number of the ID document.
After appeals for the cancellation of such train tickets[35] the State Service for Protection of Personal Data issued an instruction, according to which the Ukrzaliznytsia is “to ensure such entries in travel documents as first and last based on the words of the payer for the travel document without storing personal data in the Unified system and in any other databases”. Subsequently the Ukrzaliznytsia announced that the passenger’s information would remain on the ticket only and would not be entered into the database[36].
The politically motivated data collection about individuals goes on.
In September, the Department of Education and Science, Youth and Sports of the KCSA demanded that the schools compile lists of children whose fathers were journalists with indication of the first and last name of a child, name of its father journalist and mother journalist and places of their work[37]. Moreover, in Ukrainian education the system was formed by which schools gathered information about schoolchildren’s parents, including information on their place of work. The educational institutions send these data to the Education management information system (EMIS) and then it is entered into the Unified state electronic database on education (USEDE)[38].
The Prosecutor General's Office and MIA demanded personal information on media channel “24” journalists covering the events of 30 November and 1 December in Kyiv. Once the channel refused to provide such personal data guided by the law on personal data protection, on December 11 Roman Andreyko, channel’s CEO, received a summons to appear in PGO for questioning[39].
Also the Prosecutor General's Office within the framework of investigation into alleged abuse of power by militia officers during the rallies of 30.11.2014 ordered Taras Shevchenko Kyiv National University to submit complete personal data of students who without good reason skipped lectures on the 29.11.2014 and 12.02.2014 and also lecturers who were absent without good reason as well. In addition the PGO required providing a list of initiators, activists, organizers who stirred students to actions[40]. As university administration refused to provide such information, the same info was requested by First Deputy Minister of Education Yevhen Sulyma[41].
Overall, according to unofficial information, the practice of collecting by militia sensitive personal information about individuals (information about political views, religious beliefs, sexual orientation, participation in the program replacement therapy, etc.) continues.
The staffers of Druzhkivka Department of Labor and Social Welfare were instructed to collect personal information under the guise of filling out by residents of the “profiles of supporters” of PR. The questionnaire among other things had to specify the full name, home address, loyalty (treatment of the Party of Regions), date of birth, place of employment and phone number. As stated, the employees of the department had to conduct door-to-door round and interview residents using the questionnaire. The Druzhkivka Mayor, who was also chairman of the municipal organization of the Party of Regions, Valery Hnatenko said that he had no info on such questionnaire[42].
The state employees were forced to fill out similar forms in Poltava[43] and Torez[44].
In February 2013 the “Instruction on the organization of the criminal minors’ militia” came into force[45]. Among other issues, the instruction has put in order the delinquency prevention register that directly affects the processing of personal data.
The law specifies preventive registration of minors in eight cases: enforcement of punishment not connected with imprisonment; court decision on setting a minor free from criminal responsibility by applying compulsory educational measures; court decision on setting a minor free from prosecution and punishment under the amnesty; serving a minor a notification of suspicion of a criminal offense; setting free from special educational facility for minors of the State Penitentiary Service of Ukraine; copy of the official warning about the inadmissibility of the commission of domestic violence; detection by the officer of the criminal minors militia (KMM) of a minor who has committed an administrative or criminal offense and who was issued a diagnose of “drug addiction”, “toxicomania”, “alcohol” by a health care institution; detection by a KMM officer of a minor who has committed administrative offense two or more times and who has been called to administrative account.
Thus, a minor drug addict will not be put on the record by militia. It will take place only when such minor commits an offense.
The procedure for early removal from the register of preventive educational work was also established. However, the information about registered minors is covered by the law on personal data protection.
There remains a peculiar situation when a person receiving information about her/himself from the state registers is to pay for it, while the sum of payment is different in different registers, although they are financed at budget’s expense. In September and October 2013 there was a conflict between the Ministry of Justice of Ukraine and the developers of client access to public registers of the Ministry of Justice “Art-master” and “Z-T” in connection with the appointment of the new head of the State Enterprise Information Centre of the Ministry of Justice of Ukraine responsible for administration of the state registers of the Ministry of Justice. The personnel of the State Enterprise Information Centre of the Ministry of Justice of Ukraine charged L. Bohdanov, the new head, with the fact that on the first day of his incumbency the new director ordered to copy all DB by individuals[46] who were not employees of the company; as a result their interference stopped the work of registers. Justice Minister Olena Lukash, in her turn, argued that trying to take control of the state registers the Ministry of Justice refused to pay these firms to support registers, as a result of which the developers blocked the access to the registry. Later, the access to registers was renewed[47].
On October 19, the access to the Unified State Register of Legal Entities and Individual Entrepreneurs (Uniform State Register of Enterprises and Organizations of Ukraine) was opened via the Internet[48].
Bodily aspect of the right to privacy
The compulsory medical procedures such as centralized vaccination of children remain subject to debate in the media primarily due to the quality of immunization vaccines purchased by the Health Ministry. In connection with this a part of parents refuses to make them while doctors warn about the threat of epidemics. The point at issue was the procurement by the Ministry of Health of Ukraine of vaccines and medical preparations produced by “Pharmstandard-Biolik”.
In January 2013 it was reported that the Prosecutor General's Office ruled on the audit and review of compliment with the law by the Ministry of Health in the procurement of vaccines made by this manufacturer. The realization of hepatitis B vaccine produced by “Pharmstandard-Biolik” was temporarily banned in Ukraine.
These measures were taken in response to the interpellation of Andriy Senchenko, Batkivshchyna deputy, who, referring to the materials published by the media, claimed the death of 11 children from using the vaccine of “Biolik”; other reviewers wrote about 8 deaths. At the same time, the Ministry of Health of Ukraine believes that all these cases are not related to vaccination but are due to other causes of deaths that just coincided in time with the use of the vaccine. It is clear that these events have added arguments to supporters of rejection of vaccination. It should be noted that the procedure of obtaining permit for the use of certain vaccines and investigation of deaths possibly related to vaccination were carried out under the supervision of the Ministry of Health of Ukraine.
Overall the use of vaccines produced by this company was banned 16 times, but over and over again the permit was renewed[49].
On March 11 a group of deputies from opposition demanded from the Prosecutor General of Ukraine, chief of SSU, deputy prime minister responsible for health care and minister of internal affairs to conduct immediate inspection of numerous instances of unlawful clinical tests of doubtful drugs conducted on children, and institute criminal proceedings against all the officials responsible for the deaths due to the use of untested drugs and vaccines. They maintained that in the past two years, the officials of the Ministry of Health of Ukraine effectively provided protection for the unlawful clinical testing of questionable medicines on children, as evidenced by numerous facts. In particular, in the ward of pediatric endocrine pathology of the public institution “V.P. Komisarenko Institute of Endocrinology and Metabolism of the NAMS of Ukraine” 26 patients participated in clinical tests of the Chinese medical preparation “Dzhintropin” after the expiration of the period covered by insurance contract. The informational consent in the case of 9 patients, contrary to law, was signed by only one parent instead of the required two.
In addition, the cases of failure to inform the bodies of guardianship and care about participation of one child in clinical tests conducted in the ward of pediatric cardiology of the Research Medical Center of Pediatric Cardiology and Cardiac Surgery of the Ministry of Health of Ukraine to study medical preparation “Bosentan” were found. These clinical tests were conducted without accreditation certificate of a health institution. The deputies also emphasized that clinical tests of Doripenem therapy in the pediatric ward of the Poltava Oblast Children's Hospital were performed without accreditation certificate during eighteen months[50].
In May 2013, the Verkhovna Rada of Ukraine set up the interim commission[51] on the results of the activity of which the draft report of the Commission[52], which partially brought up the issue of procurement of “Biolik” vaccines; however, it was not considered by the Verkhovna Rada of Ukraine. Nevertheless, in July and August more infants vaccinated with vaccine “Pharmstandard-Biolik” died[53].
It is noteworthy that submitting children to mandatory vaccinations with vaccines of questionable quality, as well as conducting clinical tests of medicines on children in contravention of applicable law undoubtedly constitutes a breach of privacy.
The current procedure of forced placement of a person in a psychiatric hospital does not adequately protect the individual from arbitrariness. The objectives of the placement are different: from acquisition apartment[54] to prosecution for public activity[55].
On July 11 in Zaporizhzhia the officials detained and forcibly placed in a hospital activist Rayisa Radchenko, who had previously criticized militia for abuse and collected signatures for the resignation of the mayor. The authorities maintained that there existed the court’s ruling that she should be hospitalized for coercive treatment. When Rayisa Radchenko went to court to get an explanation she was not let out from there. Only on July 13 her daughter and a familiar doctor familiar were let in the psychiatric hospital where her mother was kept. On the body of Rayisa Radchenko they found bruises and hematomas. In addition, the medical personnel did injections without telling the names of drugs. The doctors maintained that the mother signed a written consent to use the injectable drugs, but the activist claimed to the contrary that she had written a renunciation of the use of coercive injections. According to doctor Tetiana Smyrnova, who was present during this visit, the activist’s friend, those were aminazine injections. The daughter of Rayisa Radchenko argued that the court's decision on the compulsory examination had no force[56]. On July 16 the Komunarsky District Court of Zaporizhzhia left activist Rayisa Radchenko for compulsory treatment in the oblast out-patient psychiatric facility[57]. After the story caused a sensation, on July 26, the doctors of Zaporizhzhia Oblast mental hospital let her go home arguing about the transfer to outpatient treatment, and subsequently the Zaporizhzhia Oblast Court of Appeal reversed the judgment of first instance[58].
Another component of the bodily aspect of privacy arose due to introducing in the Verkhovna Rada of Ukraine of the Bill on Amendments to the Law of Ukraine “On the transplantation of organs and other anatomical materials” (about taking human transplants from living donors and deceased persons)[59]. The project involved the presumption of consent for cadaveric donation, if that person, while still alive, did not write a statement of refusal or if her/his family during an hour after the announcement of the death did not express active protest.
Some doctors take a positive view of such a procedure, as it is, in their opinion, as well as in the opinion of officials of the Ministry of Health of Ukraine[60] helps to save more lives[61], while others indicate that this will not necessarily increase the number of transplantations, as well as the risk of rejection of transplants may increase; they are focusing on the need to introduce social compensators for live donors[62].
However, in general, the Ukrainian society disapproves of this presumption of consent to donorship primarily because of fear of abuse by doctors and officials[63]. Obviously, to ensure that this procedure is not met with such resistance from the community, if it is really needed, it is necessary not only to explain the need for such a procedure and create effective mechanisms of the possibility to abandon it, but to carry out reforms that would be able to increase the level of trust in doctors and officials in charge of this area.
Recommendations
1. Stop the administrative practice of unlawful use of an identification number (code) of the taxpayer for purposes not provided for by law. Stop also use of the term “personal number”, the use of which is not provided by any law.
2. Amend the Law "On the Unified State Demographic Register” in order to reduce the list of documents, which provide a record of biometric data leaving only the information on foreign passport and doing away with the Unified State Demographic Register in the form in which it is stipulated by the law.
3. Amend the legislation providing for the publication of an annual report with respect to impersonalized data concerning the tapping of communication channels in the course of covert investigative (search) actions.
4. The MIA must stop unmotivated collection of sensitive personal information about individuals (information about political views, religious beliefs, sexual orientation, participation in the replacement therapy program, etc.).
5. Pass a law and other normative legal instruments protecting the rights of patients, in particular as regards compulsory medical procedures and confidentiality of health information.
6. Amend the legislation and normative legal instruments in order to eliminate the discrepancy between the compulsory vaccination for children going to small schools and the right to education for children whose parents deliberately refuse to do the vaccinations, especially when such vaccinations are contraindicated.
7. Regulate video surveillance in public areas, providing, among other things, for storage and deletion of records.
8. Stop using searches as politically motivated means of ensuring loyalty and persecution of political opponents.
9. Regulate video surveillance of prisoners to maintain balance between the requirements of security and human dignity.
10. Change the law on secrecy of adoption guarding the secret even from the child. In particular, it is necessary to make exceptions to the provisions of the legislation specifying absolute confidentiality of adoption (articles 226, 229 and 230 of the Family Code, article 168 of the Criminal Code).
11. Develop a mechanism rendering the abuse impossible in the procurement of vaccine for immunization.
12. Exclude from the register “For Official Use Only” of the Constitutional Court of Ukraine information on the constitutional submissions as those which are of particular public interest and are created through the work of public authorities.
13. Clarify the list of special technical means intended to obtain information in a way that the average citizen could determine which ones belong to prohibited (permissible) means.
14. Define the effective price of processing foreign passport indicating with a special note that no additional fees can be charged to obtain foreign passport.
15. Restore in the Law on personal data protection the determination of the consent of the subject of personal data (§5 of article 2 of the Law) deleting at the same time the definition of the State Register of personal databases (§4 of article 2 of the Law).
16. Develop a system of social compensators for living donors.
17. To unify the system of obtaining by a person information about herself/himself from the state registers doing away with payments for information about herself/himself.
18. To bring the procedure for collecting personal data of parents of schoolchildren for the Unified State Electronic Database on Education (USEDE) in accordance with the Law of Ukraine “On Personal Data Protection”.
19. Cancel the Rules of telecommunications activities (rendering Internet access services) or amend them taking into account the position of relevant NGOs.
[1] Prepared by Ruslan Topolevsky, Center for Legal and Political Studies “SIM”.
[2] A. Avakov Accidents ... / / http://blogs.pravda.com.ua/authors/avakov/511a83ea6b0e2/
[3] The opposition detected persons who followed Yatsenyuk in Chernivtsi / / http://tyzhden.ua/News/75979
[4] The Chernivtsi militia undertook action against Yatseniuk on chsrges of interfering with the work of law enforcers / / http://ipress.ua/news/militsiya_chernivtsiv_sprostovuie_stezhennya_za_yatsenyukom_i_zvynuvachuie_yogo_u_vtruchanni_v_ih_robotu_17859.html
[5] SOS: Klimenko's vultures searched the apartment of the journalist of "Era FM" / / http://k-z.com.ua/proisshestviya/27803-sos-stervyatniki-klimenko-obyskali-kvartiru-zhurnalistki-era-fm
[6] Servers were taken out from the office of Batkivshchyna / / http://pravda.com.ua/news/2013/12/9/7005711/
[7] Militia says that they searched neighbors of Batkivshchyna / / http://pravda.com.ua/news/2013/12/9/7005739/
[8] Arrested activist searched on charges of participation in the "storm near AP" / / http://pravda.com.ua/news/2013/12/9/7005645/
[9] One more Bankova detainee searched / / http://society.lb.ua/accidents/2013/12/10/245698_kvartire_zaderzhannogo.html
[10] On February 3, 2014 the Regulations were registered with the Ministry of Justice of Ukraine.
[11] http://zakon4.rada.gov.ua/laws/show/z0207-14
[12] IAU appeal concerning the adoption of the Rules of activities in the sphere of Internet access services / / http://reklamaster.com/articles/id/46399/index.html
[13] MIA will spend ₴6bn to buy cameras to keep crime off the streets / / http://proit.com.ua/news/telecom/2013/09/10/170320.html
[14] 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://venice.coe.int/docs/2007/CDL-AD ( 2007) 014 -e.asp.
[15] Jailers claim that the militia also survey Tymoshenko / / http://pravda.com.ua/news/2012/09/6/6972223/
[16] SSU searches the apartment of the Dorozny Control Newspaper journalist Vytaliy Kosenko / / http://roadcontrol.org.ua/node/1712
[17] Legal uncertainty ... / / http://blogs.pravda.com.ua/authors/golovan/5130a7cc3c2e0/
[18] Ukrainians will not be able to legally buy Google Glasses because of the ban on "spy" gadgets
/ / http://ua.korrespondent.net/lifestyle/gadgets/1522010-ukrayinci-ne-zmozhut-legalno-kupiti-okulyari-google-glass-cherez-zaboronu-na-shpigunski-gadzheti
[19] Ex-SSU man: secret agencies are tapping citizens both at home and abroad / / http://pravda.com.ua/news/2013/06/27/6993126/
[20] I got a call from the militia / / http://blogs.korrespondent.net/blog/celebrities/3222977-meni-podzvonyly-z-militsii
[21] http://zakon1.rada.gov.ua/laws/show/2297-17
[22] Circus exercises around Yanukovych taking the oath / / http://blogs.pravda.com.ua/authors/leschenko/511be761b7f7d
[23] Round table “Changes in the legislation on personal data protection: achievements, problems and ways to tackle them” / / http://press.liga.net/announces/kruglyy_stol_izmeneniya_v_zakonodatelstve_o_zashchite_personalnykh_dannykh_dostizheniya_problemy_i_p
[24] Resolution of the Cabinet of Ministers of Ukraine of 25.05.2011 no. 616 "On approval of the National Register of Personal Data Base and its scheme" / / http://zakon4.rada.gov.ua/laws/show/616-2011-% D0 % BF
[25] http://zakon4.rada.gov.ua/laws/show/383-18
[26] http://pravda.com.ua/news/2013/03/3/6984738/
[27] Some question of realization of the Law of Ukraine "On Unified State Demographic Register and documents proving citizenship of Ukraine, prove identity of a person or her/his special status" / / http://zakon1.rada.gov.ua/laws/show/185-2013-% D0% BF
[28] The EDAPS kickback / / http://gazeta.dt.ua/internal/vidkit-yedapsa-_.html
[29] The EDAPS kickback / / http://gazeta.dt.ua/internal/vidkit-yedapsa-_.html
[30] Stopping the enactment of the Regulation of the Cabinet of Ministers of Ukraine dated March 13, 2013 no. 185 / / http://zakon1.rada.gov.ua/laws/show/415-2013-% D0% BF
[31] Government approved the plan to introduce electronic passports / / Http://info-kmu.com.ua/2013-09-12-000000am/article/16017498.html
[32] Cabinet of Ministers allocated ₴300 million for the creation of Unified State Demografic Registry / / http://zn.ua/ECONOMICS/kabmin-vydelil-pochti-300-millionov-griven-na-sozdanie-edinogo-demograficheskogo-gosreestra-132548_.html
[33] The Supreme Court solved the problem of the passport price: ₴170 / / http://pravda.com.ua/news/2013/12/24/7008196/
[34] Investigation: Ukrainians can get passport for ₴170 only by a court ruling / / http://zik.ua/ua/news/2013/12/27/zakordonnyy_pasport_za_170_grn_ukraintsi_mozhut_otrymaty_lyshe_cherez_sud__rozsliduvannya_450222
[35] Vira Serdyuchka watching you ! / / Http://umoloda.kiev.ua/number/2351/176/83639/
[36] Ukrzaliznytsia has fulfilled the requirements of the ruling of the SSPPD of Ukraine / / http://zpd.gov.ua/dszpd/uk/publish/article/64463
[37] But you, Stirlitz, please… / / http://gazeta.dt.ua/internal/a-vas-shtirlic-ya-poproshu-_.html
[38] Ministry of Education denies gathering "dossier" on parents of thepupils / / http://dt.ua/UKRAINE/minosviti-zaperechuye-zbir-dosye-batkiv-shkolyariv-129230_.html
[39] PGO and MIA required to provide personal information of the journalists of the media channel "24" / / http://24tv.ua/home/showSingleNews.do?gpu_ta_mvs_vimagayut_nadati_personalni_dani_zhurnalistiv_telekanalu_24&objectId=391232
[40] PGO requires information about Shevchenko University students and faculty who came to the Maidan / / http://tyzhden.ua/News/95671
[41] Dymon wants to know the names heroes: the Ministry of Education will help MIA with reprisals / / http://obkom.net.ua/news/2013-12-01/1055.shtml
[42] Officials are forced to put questions about the loyalty to the Party of the Regions / / http://pravda.com.ua/news/2013/10/28/7000914/
[43] Public activist: in Poltava state employees are forced to fill out the "Form of supporter" / / http://poltava.pl.ua/news/24726/
[44] Who is canvassed at Torez lyceums and enterprises? .. / / Http://progorod.info/story/92155
[45] http://zakon4.rada.gov.ua/laws/show/z0121-13
[46] Raiders seized personal data of the citizens / / http://pravda.com.ua/rus/news/2013/10/3/6999185/
[47] Ministry of Justice: Security Service confirmed the integrity of the personal data of Ukrainians / / http://pravda.com.ua/news/2013/10/7/6999468/
[48] Ukrainian State Register declassified data of the state registry of entrepreneurs / / http://proit.com.ua/news/gosregulation/2013/10/21/160551.html
[49] Who is responsible for the scandalous vaccine? Part Two / / http://epravda.com.ua/publications/2013/08/27/391586/
[50] The opposition accuses the authorities of experiments on orphans / / http://texty.org.ua/pg/news/movchun/read/44127/Opozycija_zvynuvachuje_vladu_v_doslidah_nad_ditmysyrotamy
[51] http://zakon2.rada.gov.ua/laws/show/236-vii
[52] http://apteka.ua/article/255708
[53] http://portal.diklz.gov.ua/PublicSite/QLA/DocList.aspx
[54] Healthy Ukrainians for money are sent to psychiatric hospitals / / http://tsn.ua/video/video-novini/zdorovih-ukrayinciv-za-groshi-zaprotoryuyut-do-psihlikaren.html
[55] In Zaporizhzhia the activist was thrown into a mental hospital and inject her unknown drugs / / http://tsn.ua/politika/u-zaporizhzhi-aktivistku-kinuli-do-psihlikarni-ta-kolyat-nevidomi-preparati-302292.html
[56] In Kyiv, an activist thrown into a mental hospital and unknown drugs are injected / / http://tsn.ua/politika/u-zaporizhzhi-aktivistku-kinuli-do-psihlikarni-ta-kolyat-nevidomi-preparati-302292.html
[57] Rayisa Radchenko: the government wants to close my mouth sending me to a mental hospital / / http://radiosvoboda.mobi/a/25047080.html
[58] Where the party of Yanukovych is ruling: the case of Raisa Radchenko / / http://expres.ua/main/2013/07/29/91125-tam-pravyt-partiya-yanukovycha-istoriya-rayisy-radchenko.
[59] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=47378
[60] Ministry of Health: there is a need to amend the Law of Ukraine "On the transplantation of organs and other anatomical human materials" / / http://kmu.gov.ua/control/uk/publish/article?art_id=246820121&cat_id=244277212
[61] Who will be dismembered? / / Http://society.lb.ua/health/2013/06/21/208122_organi_poydet.html
[62] Pashkov V.M. Anatomical Materials of the Deceased: the presumption of consent. - Ukrayinskyi Medychnyi Chasopys. - 2013 . - No. 6 (98 ) - XI / XII. - Mode of access: http://umj.com.ua/article/69505/anatomichni-materiali-pomerloi-lyudini-prezumpciya-zgodi
[63] The LB.ua readers do not support of post-mortem donorship of organs / / http://society.lb.ua/health/2012/11/27/180353_chitateli_lbua_podderzhivayut_ideyu.html