login | registration | forgot the password
today 01.08.2014 08:44
(by Kyiv time)

navigation

Kharkiv Human Rights Group Social Networking



Human Rights in Ukraine - 2005: IV. The Right to Privacy

The right to privacy is guaranteed by the Constitution of Ukraine. Territorial privacy (inviolability of dwelling place) is, for example, protected by Article 30, while Article 31 concentrates on privacy of communications (privacy of mail, telephone conversations, telegraph and other correspondence) and Article 32 – on privacy of information. (“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 collection, storage, use and dissemination of confidential information about a person without his or her consent shall not be permitted …”). In addition, Article 28 guarantees certain aspects of physical privacy (“No person shall be subjected to medical, scientific or other experiments without his or her free consent.”)

Ukraine has been a signatory to the European Convention for the Protection of Human Rights and Fundamental Freedoms since 1997, making the Convention part of its domestic legislation, including Article 8 which envisages additional protection of privacy.

Constitutional norms formulating a comprehensive list of grounds for intruding into privacy and the conditions for such invasions have not been sufficiently developed in laws and subordinate legislation.. The rather unclear formulation, or indeed lack of regularization of permissible grounds for restricting the right to privacy, the extent and means of the intrusion, remain the most unresolved issues in legislative regulation of privacy law with this leading in practice to countless violations.

Liability for violations of the right to privacy is allowed for in criminal law, as well as in civil and administrative legislation.

 

COMMUNICATIONS PRIVACY

Most violations are connected with communications privacy. Legislation does not set down clear grounds for allowing the interception of information from communications channels (tapping of telephones, mobile telephones, email interception, monitoring a person’s Internet movements).  It also fails to establish clear time limits for such interception, the circumstances under which information received must be destroyed, or rules as to how it can be used.  The guarantees of compliance with the law in carrying out such interceptions of information are clearly inadequate. As a result of this, nobody is able to control the number of permits issued or the need for the wiretapping, while individuals who have been subjected to surveillance through these means are not aware of it and can therefore not lodge complaints in the courts or use other means of protecting their right to privacy.[1]

In 2004 political surveillance in Ukraine took on massive proportions and the issue became public. Those subjected to such surveillance included State Deputies (MPs), presidential candidates and the heads of state executive bodies.

On 10 August in the Crimea, some State Deputies accompanying the presidential candidate, Viktor Yushchenko noticed a car shadowing that of Yushchenko’s.  A man was detained, and when the police arrived, they found special microphones and tapping decisions, as well as camera and video equipment.  In the car used there was material pertaining to Yushchenko’s surveillance, as well as various kinds of espionage equipment, 12 different car number plates and an official document from the Ministry of Internal Affairs authorizing the surveillance and checking.  Other documents found in the same car referred to another presidential candidate, Natalya Vitrenko.

Law enforcement agencies were actively engaged in the presidential election campaign on the side of the then Prime Minister Viktor Yanukovych.  Such agencies collected personal information on civic activists and carried out mass detentions without any grounds at all.[2]

During 2004 there was widespread recording of different politicians’ telephone conversations. A recorded conversation became public, for example, involving the State Deputy David Zhvanya (in connection with the temporary disappearance of the Russian politician Ivan Rybkin), as well as those of the Georgian President, Mikhail Saakashvili (a conversation in a restaurant during a visit to Ukraine where he allegedly called Yushchenko an idiot), of the head of the election campaign of the pro-regime presidential candidate Yury Levenets – Serhiy Kluyev and of Oleh Tsaryov with the Head of the Presidential Administration Victor Medvedchuk and the Head of the Central Election Commission, Serhiy Kivalov (on rigging the election results).[3]

On 17 February 2005 the then Head of the Security Service of Ukraine (SBU), Oleksandr Turchynov announced that a criminal investigation had been initiated into the illegal wiretapping of telephone conversations between the leaders of the (then) opposition, Viktor Yushchenko and Yulia Tymoshenko.

The criminal investigation was initiated under Article 369 § 2 of the Criminal Code of Ukraine “Unlawful use of technical surveillance devices”. According to the Head of the SBU, wiretapping of opposition politicians was carried out illegally and on a wide scale, with the decisions to allow such surveillance being taken at the highest level. Documents were presented to the court in order to obtain a warrant for the tapping of an individual in conflict with the law, and the court sanctioned such activity. However the documents submitted showed telephone numbers of other individuals which made it possible to tap anyone’s phones.

Oleksandr Turchynov stated that in Ukraine the necessary equipment for wiretapping is held by various state agencies, including the Ministry of Internal Affairs, the State Border Guard Service, the Tax Police of the State Tax Administration, the State Department for the Execution of Sentneces and intelligence agencies.[4]

On 9 April 2005 the Speaker of the Verkhovna Rada, Volodymyr Lytvyn stated that he was ready to provide proof that he had been subjected to surveillance and that his conversations had been tapped. He claimed that after the end of the elections, he had received confirmation that he had been watched, and that the individuals who had carried this aim were continuing to hold the same positions[5]  Volodymyr Lytvyn said that under the new regime as well there had been surveillance, with people, names, ID document numbers and car plate numbers being recorded.

  A scandal which attracted worldwide attention was that over taped conversations in the office of the former President of Ukraine, Leonid Kuchma. The cassettes which were kept by a former Presidential guard, Mykola Melnychenko, hold information suggesting the possible involvement of the heads of the nation in serious crimes, but they are also information which can constitute a state secret. The tapping of the President’s office was carried out illegally however the information recorded could provide important information enabling the crime to be solved.  Arguments are still raging among politicians in Ukraine as to whether the whole archive of recordings made by Mykola Melnychenko should be made public.

  In March 2006 representatives of the electoral bloc “Nasha Ukraina” [“Our Ukraine”] – Roman Zvarych, Roman Besmertny and Petro Poroshenko – publicly stated that the former Head of the Security Service of Ukraine, Oleksandr Turchynov, had used his official position to monitor telephone conversations involving officials from state executive bodies. In particular, Roman Besmertny claimed, transcripts had been circulated of telephone conversations he had held. He added that inter-state negotiations had also been tapped. Oleksandr Turchynov rejected any suggestion that illegal wiretapping of politicians and high-ranking state officials had been carried out. However the SBU publicly confirmed that there had been incidents involving illegal wiretapping, and that Ukraine’s Prosecutor General had launched a criminal investigation in connection with this.

It should be noted that in NOT ONE case involving violations of privacy has anyone been punished, at least as far as incidents known to the public are concerned.  Moreover, according to official statistics from the State Court Administration, in 2005 under Article 159 of the Criminal Code “Unlawful use of special technical devices for the illicit obtaining of information” not one person was convicted. Nor have there been any convictions over the last three years under Article 163 of the Criminal Code “Violation of confidentiality of correspondence, telephone conversations, telegraphic and other correspondence transmitted by communications channels or via a computer”. One person was convicted in 2004 for infringing the inviolability of an individual’s private life (Article 182 of the CC), however in 2003 and 2005 there were no convictions. All these statistics point to a lack of adequate protection of privacy.

Exact figures for the extent of wiretapping carried out in Ukraine are not available as official statistics are not provided by the authorities. However it did become known that in 2002 the courts had issued over 40,000 warrants for wiretapping. It was also officially confirmed that in 2003 the Appeal Court of the smallest region in Ukraine, the Chernivtsi region, had issued 823 warrants for the interception of information from communications channels.[6]. According to information from the Prosecutor General’s Office, the number of such warrants by September 2005 was in excess of 11 thousand, with the results of the wiretapping having been used in only 40 cases.[7]

In view of the increasing number of cases of wiretapping and surveillance of politicians and businesspeople, on 21 July 2005 the Ukrainian Helsinki Human Rights Union (UHHRU) circulated an open letter addressed to the President of Ukraine, the Speaker of the Verkhovna Rada of Ukraine, the Prime Minister and the Head of the Security Service of Ukraine. Some of the recipients responded saying that they understood our concern, but that the measures proposed would run counter to the Law on Investigative Operations and would make such operations impossible. Then a little later, a new version of the “List of Items of information which constitute state secrets” [LIISS] appeared with Point 4.4.8 which classifies statistical information about investigative operations. In our opinion this was done in order to conceal the real extent of secret surveillance and to avoid any consideration of the question of the effectiveness of such activities.  All formal requests for information regarding the number of warrants for the interception of information from communications channels were turned down with reference given to this specific point of the LIISS

It would seem to be logical to ask why the demands established back in the 1970s by the European Court of Human Rights which have become axiomatic for western democracies should be impossible for the Ukrainian authorities.

Independent control must be introduced over interception of information from communications channels (including wiretapping) by state executive bodies.[8]

Over the last six months in Ukraine there have been regular scandals over cases involving the interception of information from communications channels (tapping of phones and mobile phones, reading of electronic mail and Internet communications, etc) of well-known figures. Hardly a week goes by without news of the illegal tapping of high-ranking state officials. It should be remembered that the interception of information from communications channels as a part of investigative operations work may only be used in cases involving serious and particularly serious crimes.

A considerable amount of the information coming to light concerns the past, in particular events preceding the election of the new President of the country.  However, we are convinced that no success in this area can be achieved by merely changing the people occupying certain positions, and not changing the system of surveillance in the country to ensure that an end is put to the illegal tapping of businesspeople, political and public figures.

Systematic change is needed in the area of investigative operation work. In the first instance chances need to be made to Ukrainian legislation. Following the practice of the European Court of Human Rights and positive experience of European democracies, the following amendments are needed:

Interception of information from communications channels (including wiretapping) should be an exceptional measure (in the last years around 40 thousand warrants for such interceptions were issued which is approximately 40 times more than in the USA. The material received, furthermore, was very seldom cited as evidence in court).

Interception of information from communications channels should be carried out over a limited time period which should be stipulated in the court warrant (at the present time, no maximum time frame is defined by law, which means that a person may be subjected to surveillance indefinitely).

The law enforcement agency carrying out the interception activities must within 10 days of the conclusion of such surveillance notify the individual who was watched so that the latter may lodge a complaint about these activities in court (at present, the majority of people never find out that their communications were intercepted or that they were under surveillance, this being a violation of their right to privacy).

There needs to be Independent control over the implementing of electronic surveillance by the Human Rights Ombudsperson or by another state executive body which is not connected with law enforcement agencies.

An annual report by law enforcement agencies is needed with details on the use of measures involving investigative operations which infringe human rights (interception of information from communications channels, secret searches).  The overall number of warrants issued must be provided, with the information ordered in terms of the grounds provided and an analysis made of the efficacy of such measures.

Unless these legislative changes are implemented, we believe that the unwarranted surveillance over citizens will continue. This at any rate has been the experience of democratic countries which resolved this important issue many years ago.

This issue would be resolved to a large degree by the adoption of the Draft Law ¹ 4042-1 from 2 June 2005 “On the interception of telecommunications” (tabled by Ukrainian State Deputies V. Lebedivsky, O. Yediny, O. Klympushch and A. Shkil). Its adoption is, however, being actively obstructed by law enforcement agencies, in particular, the SBU.  Amendments are, moreover, required to the Criminal Procedure Code of Ukraine, the Law of Ukraine “On Investigative operations” and a number of other laws.  Up till now there has not been the political will to effect such changes. One would have thought that when all parties in the political process are becoming victims of unwarranted surveillance of their communications (via tapping of telephone and mobile telephone conversation, reading of emails, etc), they would see the need to stop such shameful practice.

Only the creation of a system of independent control over wiretapping and other forms of electronic surveillance will enable Ukraine to free itself of such appalling interference in the private lives of citizens and illegal monitoring of the communications of businesspeople, public and political figures.

 

Ex-Head of the Council of National Security and Defence of Ukraine, Petro Poroshenko in an interview to the newspaper “Sevodnya” [“Today”] in October 2005 directly used the arguments given by human rights activists:

“The SBU internally, without formal documentations, listened in before and listen in now. It’s incredible when in the USA in a year there are a thousand warrants for “tapping”, and we have 40 thousand, and when, to boot, a mere hundred are used as evidence in court!   You’d be lucky to get even 15 or 20 convictions a year on the basis of such material! I suggested to Turchynov that the maximum time period for such tapping should not exceed three months since otherwise there’s a risk of judges simply stamping such warrants without any possibility of analyzing the material submitted. However, if as a result it turns out the person was innocent, then tell him or her that their conversations were tapped and give them a guarantee that all the material will be destroyed. You should have seen Turchynov’s reaction: “How can you suggest that, you’d destroy all the operational activities”.

  On 7 November 2005 President Yushchenko passed Decree ¹1556/2005 “On observance of human rights in carrying out investigative operational and technical measures”, however he continues to rely on institutional changes in the law enforcement agencies, and not on the establishment of procedural guarantees against abuses.  Such measures appear superficial. The transfer of wire tapping of citizens to one body, in this case the SBU will not resolve the problem which is evident from Poroshenko’s words above. The UHHRU therefore issued an open letter to both the President and Prime Minister of Ukraine on the inadvisability of creating special communication channels for officials. One of our arguments was that such a measure would be ineffective since the SBU had previously carried out wire tapping of politicians. Furthermore, it was necessary to safeguard the privacy not only of officials, but of ALL citizens.

  None of the measures mentioned, in our opinion, can improve the situation since they fail to take into consideration the positive experience of other countries and the standards defined by the European Court of Human Rights.[9]

Decree of the President of Ukraine Decree ¹1556/2005

“On observance of human rights in carrying out investigative operational and technical measures” (extract)[10]

1. The Cabinet of Ministers of Ukraine shall within a four month period

provide the Verkhovna Rada of Ukraine with proposals on amendments to legislative acts of Ukraine safeguarding the observance of citizens’ constitutional rights in the carrying out of investigative operations;

take measures to create a Ukrainian State Service for Special Communications and Protection of Information as a central executive body with special status with its key task being to implement state policy on protecting state information resources in networks for transmitting data, to safeguard the functioning of the state system of governmental communications, the National system for confidential communications, cryptographic and technical protection of information;  

approve, after consultation with the Supreme Court of Ukraine and the Prosecutor General of Ukraine, a single list of instructions on the rules and procedure by which those subdivisions carrying out investigative operations obtain warrants for such measures and on how they use the material received in this manner;

bring their decisions into compliance with this Decree.

2. The Security Service of Ukraine, the Ministry of Internal Affairs of Ukraine, the Administration of the State Border Guard Service of Ukraine, the State Tax Administration of Ukraine and the State Department of Ukraine for the Execution of Sentences shall within a three month period review the present rules and procedure for carrying out operational and technical measures which impinge upon the human right to inviolability of dwelling place, confidentiality of mail and telephone conversations, telegraph and other correspondence, non-intrusion in private and family life, and shall introduce the necessary amendments to the departmental normative and legal acts.

3. The Ministry of Internal Affairs of Ukraine, the Administration of the State Border Guard Service of Ukraine, the State Tax Administration of Ukraine and the State Department of Ukraine for the Execution of Sentences shall within a three month period  make a general analysis of the available means for carrying out operational and technical measures for the interception of information from communications channels during counter-intelligence and investigative operation activities, and take measures to transfer these means through the established procedure to the Security Service of Ukraine.

4. The Ministry of Justice of Ukraine, the Security Service of Ukraine, the Ministry of Internal Affairs of Ukraine,, the Ukrainian Ministry of Defence, the Foreign Intelligence Service of Ukraine, the State Border Guard Service of Ukraine, the State Tax Administration of Ukraine and the State Department of Ukraine for the Execution of Sentences shall ensure unfailing observance of constitutional requirements regarding measures involving gaining secret access to a dwelling place or an individual’s other property,  interception of information from communications channels, monitoring of mail, and telephone conversations, telegraph and other correspondence, other technical means of obtaining information.

5. The Security Service of Ukraine shall, in cooperation with the Ministry of Transport and Communications, draw up and approve by 1 January 2006 technical requirements for means used in the interception of information from communications channels needed in carrying out investigative operations on telecommunications networks by the authorized bodies.

6. The Security Service of Ukraine and the Ministry of Internal Affairs of Ukraine shall raise the level of work on identifying, averting and suspending cases involving the procurement or use of special technical devices for the interception of information from communications channels, and other illicit means of obtaining information by those not authorized to carry out investigative operations.

7. The Head of the Secretariat of the President of Ukraine shall put forward proposals on the appointment of an Ombudsperson of the President of Ukraine on monitoring the activities of the Security Service of Ukraine and shall ensure that control is maintained over the observance of the constitutional rights of citizens and legislation in the investigative operation activities of the bodies and subdivisions of the Security Service of Ukraine, as well as monitoring compliance with the Constitution and laws of Ukraine of normative legal acts issued by the above-mentioned Service which regulate state organizations and the carrying out of investigative operations.

 

Information about an interesting new form of surveillance, also carried out in violation of the right to privacy, emerged during a court hearing into the cases involving explosions at the Troeshchyna Market in Kyiv[11] In the course of the hearing an employee of the company “Ukrainian Mobile Communications” {UMC), Mykola Pavlyuk, was questioned. From his answers the following conclusions could be gauged:

“The company has a special subdivision – a security department. The main function of this subdivision is to provide information to law enforcement agencies.

The company records the number of the station base and the specific antenna from which connections are made with your mobile telephone. The term “connection” in this case includes incoming and outgoing calls, SMS and MMS messages sent and received as well as unanswered calls.  The station bases within the city are located on average at a distance of 200 – 1000 metres. Each antenna of the base station has its own bearing or azimuth, that is, a referent direction.  On the basis of information about the connection, according to the UMC representative, one can with accuracy to several hundred metres determine the location of the telephone subscriber. The company describes such information as purely technical and absolutely necessary for regulating issues of mutual billing with other communications operators and subscribers. In fact, however, the company’s representative was unable to explain how exactly this information could have any impact on the financial sphere”.

Each telephone has its own individual EMEI code with the use of which one can effectively monitor the movements of the subscribers, as well as all other activities of the subscribers carried out via the telephone. A law enforcement officer may receive such “technical” information within the company without any court warrant since this is not a recording of conversations, and only a request for information from an investigation or investigative operations officer.  Furthermore, the courts consider it acceptable to use such “technical” information as confirmation that an individual was in a particular place at a particular point in time.

Undoubtedly other operators perform similar tasks for the law enforcement agencies.  There is a clear gap here in legislation on protection of an individual’s right to privacy.

The Security Service of Ukraine put forward proposals on extending their powers referring in justification to international principles of fighting terrorism. In order to counter so-called “computer terrorism”, measures would be initiated for monitoring users of the Internet and regulation of the Ukrainian segment of the network. For example the SBU, referring to recommendations from the Parliamentary Assembly of the Council of Europe Sub-Committee on Crime Problems and the Fight against Terrorism, presented proposals on drawing up draft laws “On the protection of information in information networks”, “On regulation of the Ukrainian segment of the Internet” and “On monitoring telecommunications”[12]

The last of the draft laws mentioned was widely discussed from 2003 – 2005. Nongovernmental human rights organizations, Internet providers as well as Internet users publicly criticized the SBU proposals and drew up an alternative draft law “On the interception of telecommunications”[13]  (Draft No. 4042-1 in a new version from 2 June 2005).

The Draft Law was prepared with the active cooperation of the “Internet Association of Ukraine” (InAU), the civic organizations “Ukrainian Internet Community” (UIC), the Kharkiv Human Rights Protection Group and the Ukrainian Union of Industrialists and Entrepreneurs. It envisages the creation of a system of automated remote-control interception of telecommunications – a protected special purpose telecommunications network to which the following would be connected:

-  technical means of interception which are installed directly on the operators’ networks;

-  permit terminals, installed in court institutions, which issue warrants for the interception of telecommunications;

-  operations terminals, installed in operations subdivisions which carry out investigative operations, counter-intelligence and intelligence work and pre-trial investigations;

-  protocol terminals installed at the office of the Human Rights Ombudsperson.

A person whose communications were intercepted would have to be informed about the time period of the interception and the content of the information obtained. Furthermore, the Human Rights Ombudsperson would be obliged to publish annual statistical reports about the interception of telecommunications in Ukraine. The time frame for such interception could not exceed 6 months. Such measures would be applied only in the case of individuals suspected of having committed or organized serious or particularly serious crimes.

Meanwhile, the SBU had their alternative draft law tabled by State Deputies in parliament, which effectively blocked the adoption of either. Parliament has still not considered these draft laws.

Nevertheless the Security Service of Ukraine, without the legally established right to such activities, continues to actively push through such technical opportunities for monitoring Internet users.  In accordance with Order No. 122 of the State Committee on Communications from 17 June 2002, only Internet providers which have installed a state system of monitoring (analogous to the Russia SORM – “System of ensuring investigative activity”) and have received the appropriate certificate from the SBU may provide access to global information networks to institutions and organizations which receive, process, circulate and store information which is the property of the state.  Internet providers were particularly critical of the demand of the SBU that such equipment be installed at the providers’ expense.  It is impossible to separate the traffic of state and non-state users of their services and protect the latter from monitoring. In this way all clients of companies which agreed to install the equipment would automatically be exposed to permanent monitoring by the SBU.

The change of leadership in Ukraine did not bring any change in this area. Despite promises to revoke Order No. 122, it remains in force. The SBU in 2005 sent letters to state institutions instructing them to connect to “correct” providers.[14]

1.  Joint Enterprise “Infocom”

2.   Limited Liability Company (LLC) “Global Ukraine”

3.  LLC "Elvisti"

4.  LLC "UkrSat"

5.  LLC "Luckynet"

6.  LLC "Citynet"

7.  LLC "Maket"

According to specialists, the SBU already illegally intercepts messages and carries out constant surveillance over approximately 50 % of the Ukrainian traffic. The level of surveillance, moreover, at the regional level can rise to 90% since regional providers find it harder to stand up to the SBU.

The Ministry of Justice of Ukraine, in response to a letter from the Internet Association of Ukraine regarding the legality of the issuing by the State Committee on Communications of Order No. 122, stated that it was legal, however later, on 23 November 2005, this time answering the same question posed by the UHHRU, it declared it unlawful.[15]

At the same time, with regard to the issue of the Order of the State Committee for Communications No. 122 of 17.06.2002, we would state that the Ministry of Justice in a letter dated 13 October 2005 No. 37229-24 called upon the Ministry of Transport and Communications within a five-day period to declare no longer in force the Order No.122 of the State Committee for Communications and Computerization of Ukraine from 17.06.2002. In the event that the above-mentioned Order is not brought into compliance with current legislation, the Ministry of Justice will begin procedure for revoking the decision on State registration of normative legal acts included in the State Register which were affirmed by the Order No. 32/5 of the Ministry of Justice of Ukraine from 31.07.2000.”

However, Order No. 122 was not revoked and continues to be in force as of April 2006.

 

PROTECTION OF PERSONAL DATA

Ukraine has not become a signatory to the Council of Europe’s Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, No. 108.  However in 2005,  the appropriate working group of the Ministry of Justice of Ukraine, including nongovernmental organizations involved in defending the right to privacy, began work in this field.

The Action Plan Ukraine – EU for 2005 stipulates the ratification of Convention No. 108 and the Additional Protocol to it, with the necessary amendments introduced at the same time to domestic legislation.

The implementation of these plans has been postponed to 2006.  In 2005 this working group drew up a draft for a Law of Ukraine “On Personal Data Protection” which incorporates the provisions of the above-mentioned Council of Europe Convention, the Directive 95/46/ªÑ of the European Parliament and of the Council of 24 October 1995 on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, the Directive 97/66/ec of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector, as well as the Recommendations of the Council of Europe Committee of Ministers concerning personal data. The Draft Law has still not been tabled in parliament.

In 2004 there was a lot of debate over proposals to create a Single State Register of Individuals as well as other state registers containing personal data, including a register of voters. On 16 November 2004 the Verkhovna Rada of Ukraine rejected the draft law on registration of individuals in Ukraine.

However prior to this, in spite of the lack of any legal grounds, the President had issued Decree No. 500  from 30 April 2004, «On the Creation of a Single State Register of Individuals» which sanctioned the creation and running of a Single Register  The Decree empowered the Ministry of Internal Affairs to create and maintain this single register on the basis of a Single State Automated Passport System (hereafter – SSAPS),  In order to carry out the work on creating SSAPS, the Ministry of Internal Affairs of Ukraine appointed the private company “Corporation “SSAPS”. Thus personal data which Ukrainian citizens passed to a state body were then passed on to a private structure.  President Yushchenko with his Decree No.457 from 10 March 2005 revoked the previous Ruling of President Kuchma on creating a “Single State Register of Individuals” (from 30 April 2004), and therefore the plan also for introducing a new style of passport in the form of a plastic card[16].

According to the revoked Decree of President Kuchma, the passport of a Ukrainian citizen was to contain, between the cover and the first page, a page of machine-readable data (a page of data). It was intended that this page would include a digital image of the passport’s owner, information about the type of passport, the state code, the number of the passport, first and last name, citizenship, date of birth, personal identification number, sex, place of birth, date of issue and issuing authority, how long the document was valid for and the owner’s signature.

President Yushchenko instructed the Head of Ukraine’s Council of National Security and Defence (CNSD), Anatoly Kinakh to prepare a session of the CNSD on improving work connected with the preparation, registration and issue of passport documents and bringing them into conformity with international standards for systems of individual registration. On 23 February 2006, in accordance with an Instruction of the Secretary of the CNSD, the appropriate working group was created.  Such a development shows that the issues of a passport system and personal registration are considered to have implications for national security. However, despite the lack of legislative regulation and the cancellation of the relevant Presidential Decrees, the Ministry of Internal Affairs (MIA) is still continuing to create the Single State Automated Passport System, with financing from the State Budget being allocated for this, and passports for international travel are still issued according to the old format.

In October the MIA submitted a package of documents to the Cabinet of Ministers in order to “make cards for citizens of Ukraine in the form of a plastic card with an inserted electronic chip which will be extremely secure, and the chip will have the card number which will be the same for the Tax Service, and for the Pension Fund. The chip will contain all necessary information about the person, and in addition it will be possible to add information about whether the person has a driving licence.[17]

In 2005 implementation of this initiative had not formally begun although in practice the MIA have long been carrying it out without any legal basis.

In response to this initiative, the UHHRU sent a letter to the Prime Minister and also began a campaign collecting signatures for an open letter to those in power, which more than 100 people endorsed.[18]. The human rights activists were demanding what would seem at first glance to be simple things, which those in authority could simply not understand:

1) With regard to plastic cards

-  that a Law on Personal Data Protection be passed;

-  that such cards be prepared only by a STATE structure;

-  that a person should be given the opportunity to learn what data was contained in;the card chip and to have it changed.

2) With regard to the individual identification code:

-  that different codes should be used separately, and that a SINGLE code for accumulating all information about a person should not be created;

-  that codes should be used ONLY for the purpose for which they were designed;

-  that their use should be determined by a Law on Personal Data Protection.

At the present time the main electronic classifier on the basis of which personal data is gathered and processed is the identification code which is issued by the State Tax Administration. The sphere of its use is constantly being expanded and far exceeds the aim for which it was introduced, that is, tax registration. Without an identification code one cannot legally find work, have access to pensions, exercise ones right to education, receive a student grant or unemployment benefit, organize concessions, open bank accounts, register business activities, etc.

Therefore in reality we have a situation where the administrative practice of state executive bodies is knowingly violating the Law of Ukraine on a Single Register of Individual taxpayers, and is using the tax number for purposes not envisaged in by this Law.

 

OTHER ASPECTS OF PRIVACY

In cases involving adoption, Ukrainian legislation does not take the interests of the adopted child into consideration. Confidentiality of adoption is guaranteed by the fact that the adoptive parents may register themselves as the child’s biological parents (Article 229 of the Family Code), change the information about the place of birth within 6 months of the child’s birth (Article 230 of the Family Code), while disclosure about  a case of adoption is subject to criminal liability. (Article 168 of the Criminal Code of Ukraine). However the right of a child to know his or her biological parents (Article 7 of the UN Convention on the Rights of the Child) and the right to preserve his or her identity (Article 8 of the UN Convention on the Rights of the Child) are entirely forgotten. Even more, the law contains provisions for keeping the adoption secret from the child him or herself. (paragraph 2 of Article 226 of the Family Court).[19]

Indeed in 2005, according to information from the State Court Administration, 3 people were convicted under Article 168 of the Criminal Code for breaching confidentiality regarding adoption. In one case the person convicted was an employee of a medical institute who was performing official duties and the actions had serious repercussions.  In fact, however, the concept of serious repercussions in the given version of the Criminal Code is difficult to grasp.

The issue continues to be problematical of the compulsory medical examinations, as well as the intrusion of law enforcement agencies into the family lives of people with non-traditional sexual orientation. For example, law enforcement agencies continue to notify the State Committee of Statistics about people they know to be homosexuals, and keep a register of them as a group at risk of AIDS.[20]

In response to a formal request for information from the Vinnytsa Human Rights Group, the MIA officially notified that in 2005 131 homosexuals in Ukraine had been “identified” (!).

The All-Ukrainian Network of People living with HIV reports numerous cases where medical results of HIV-infected people have been divulged. People living with HIV lose the chance to find work and to have access to social services. In Simferopol a person who had a mistaken diagnosis of being HIV-infected disclosed filed a law suit against those responsible.[21].. In many regions people living with AIDS are issued with special documents which makes a farce of the confidentiality of such a diagnosis.

The European Convention on Human Rights prohibits any obstruction being put in the way of any individual in the country taking their case to the European Court of Human Rights. However current Ukrainian legislation does not allow for confidentiality of correspondence sent to the European Court in Strasbourg from places of deprivation of liberty.  At the present time only letters, applications, suggestions and complaints addressed to the Human Rights Ombudsperson and the Prosecutor are not read by the administrative bodies of penal institutions. A draft law drawn up by the Ministry of Justice proposes amendments to the Penal Code and the Law of Ukraine “On Pre-trial detention”, which are designed to strengthen at a legislative level a prohibition on reading any correspondence sent from places of deprivation of liberty to the European Court of Human Rights. In spite of this, the Draft Law of Ukraine “On introducing amendments to some legislative acts of Ukraine (on safeguarding the right of individuals convicted to correspondence with the European Court of Human Rights)” No. 6038 from 12 August 2004 was rejected by parliament on 11 January 2005 and returned for another first reading. It was only in December 2005 that the given law was adopted in full and came into force.

We would note that on 11 March 2006 Order No. 13 of the State Department for the Execution of Sentences “On approving instructions on organizing the checking of correspondence of persons held in penal institutes or pre-trial detention units” was issued. According to Point 1.7 of this document a stamp is placed on envelopes of all outgoing mail with the full address of the penal institution. In our opinion, this is an unreasonable limitation of the right to privacy of people convicted and members of their families. For example, a father will not therefore write from a penal institution to his son if the latter is doing his military service.

In February 2005 the European Court of Human Rights passed a judgment finding Ukraine guilty of having violated Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and bound it to pay 8 thousand Euros in compensation to Ukrainian citizen, Romuald Novoseletskiy who lives in Ussuryjsk (Russia). The compensation was for losses incurred as a result of the loss of items from Novoseletskiy’s flat at a time when on the basis of an illegal permit from a state institution someone else was living there, as well as for the non-pecuniary damages caused the claimant and his family by not being able to live in their own flat over a lengthy period. The European Court of Human Rights accepted that as a result of an unlawful ruling, Novoseletskiy had been forced to live with a different family which had violated his right to personal and family life (the right to privacy)[22]

In 2005, according to State Court Administration figures, administrative or criminal charges were brought under Article 162 of the Ukrainian Criminal Code “Breach of the inviolability of dwelling place” against the following:

-  326 people for violating paragraph one of this Article which establishes liability for “unlawfully gaining entry to a dwelling place or other possession of an individual, illegally carrying out a check or search, as well as illegal eviction or other actions which breach citizens’ inviolability of their homes”;

-  44 people for infringements of paragraph two of this Article which establishes liability for “those same activities carried out by an official, or with the use of force or threatening to use force”.

On 22 December 2005 the Verkhovna Rada passed the Law of Ukraine “On access to court rulings”. The State Court Administration must in a series of stages throughout 2006 install an information system which will make all rulings of Ukrainian courts available on the Internet.  Up to now only individuals who are parties in a specific case have had access to rulings. One of the main arguments of those opposing open access to court rulings is the need to protect the right to privacy of the parties involved in a court case. For this reason the Law allows for the possibility of depersonalizing information.

In cases involving the application of Article 8 of the European Convention brought against Ukraine, violations of the right to ones own name, this being a part of the right to privacy, warrants mention.  These issues were reviewed by the Court in the case of Bulgakov v. Ukraine which the European Court of Human Rights declared admissible on 22 March 2005.  In this case the claimant, a Russian by origin, is complaining that, in writing his name in the passport of a citizen of Ukraine as Dmytro, and not as Dmitry, and his patronymic as Volodymyrovych, and not as Vladimirovych, the Ukrainian state authorities have violated his right to his own name. In his opinion, the demand to “write his name using Ukrainian” stipulated by current legislation means only transliteration using the letters of the Ukrainian alphabet, since there is no norm requiring that national bodies replace the name or patronymic of Russian origin with their Ukrainian  equivalents. The claimant considers that such intrusion is illegal even from the point of view of domestic law (Bulgakov v. Ukraine, Decision from 22 March 2005).[23]

The Verkhovna Rada on 6 September passed at first reading the Draft Law of Ukraine “On changing an individual’s name” (Draft Law No. 7356 from 13 April 2005).

 

RECOMMENDATIONS

1.  To adopt a Law of Ukraine “On personal data protection” complying with modern European standards for the protection of privacy;

2.  To ratify the Convention of the Council of Europe No. 108;

3.  To adopt a Law of Ukraine “On interception of telecommunications” which will allow for independent monitoring of the activities of the Security Service of Ukraine in intercepting information from communications channels, publishing an annual report with depersonalized information regarding the interception of information from communications channels in the course of investigative operations;

4.  To ensure that a Single State Automated Passport System is only introduced on a legal basis and taking into consideration the provisions of the Convention of the Council of Europe No. 108. The preparation of documents confirming citizenship of Ukraine must be under the control of state structures only;

5.  To put an end to the practice of illegally using the identification code of taxpayers for other purposes not stipulated by law. An individual must have the opportunity to know what information is contained in the card chip, and be able to have this changed. Different codes (classifiers of personal databases) must be used separately, and solely for the purpose for which they were created, and their use must be determined by a Law on Personal Data Protection;

6.  The Ministry of Internal Affairs must stop the unwarranted collection of sensitive personal information about individuals (information regarding their political views, religious beliefs, sexual orientation, etc); 

7.  To revoke Order No. 122 from 17 June 2002 of the State Committee of Communications and put a stop to the intrusion of state executive bodies into the activities of those involved in providing Internet services by forcing them to install equipment for the interception of telecommunications;

8.  To abolish the licensing of IP-telephone systems.



[1]  “Human rights in Ukraine – 2004. Human Rights Organizations’ Report”. – Kharkiv: Folio, 2005, Chapter 6.  The Report is available on the Internet in both Ukrainian and English at: www.helsinki.org.ua.

[2]  The author is in possession of copies of the relevant internal reports

[3]  A detailed list of such cases for 2004 can be found in the section on the right to privacy in “Human rights in Ukraine – 2004. Human Rights Organizations’ Report”. – Kharkiv: Folio, 2005 (p. 102),

[4]  The information can be found at news.qs.kiev.ua (in Ukrainian)

[5]   The Internet publication “Podrobnosti” [“Details”] www.podrobnosti.ua

[6]  Yevhen Zakharov:: “Investigative activities and privacy of means of communication”, available in English at: www.khpg.org.ua

[7]  Prava Ludyny [Human Rights], No. 28, 1-15 October 2005

[8]  Statement of the UHHRU from 21 July 2005.  Available in Ukrainian at: : www.helsinki.org.ua

[9]  More detail with respect to this may be found in the following: European Court of Human Rights, Case of Klass and Others: Judgement of 6 September 1978, Series A No. 28 (1979). Malone v. Commissioner of Police, 2 All E.R. 620 (1979). See Note, Secret Surveillance and the European Convention on Human Rights, 33 Stanford Law Review 1113, 1122 (1981).

[10]  With amendments and additions introduced by the Presidential Decree from 16 January 2006 No. 6/2006

[11]  More information available in the article (in Ukrainian) “Mobile citizen. Without the right to anonymity” in the newspaper “Dzerkalo tyzhnya” [“Weekly Mirror”] for 3-9 September 2005. Available at: www.zn.kiev.ua

[12]  Yurydychny Visnyk Ukrainy from 26 January 2002

[13]  The Draft Law is available on the Verkhovna Rada site (in Ukrainian): www.rada.gov.ua.

[14]  The Internet publication “Maidan” maidan.org.ua.

[15]  The full text of the response is available at the UHHRU site: www.helsinki.org.ua

[16]  The MIA’s clarification is provided on their site (in Ukrainian) mvsinfo.gov.ua

[17]  http://5tv.com.ua/newsline/179/0/12980/

[18]  More information available on the UHHRU website (in Ukrainian) www.helsinki.org.ua, www.helsinki.org.ua.

[19] The right to respect for personal and family life: civil and legal aspects in Ukrainian legislation and court practice (in Ukrainian). Y. Petrova. The European Convention on Human Rights: Main provision and practical application, the Ukrainian context/ edited by O.L.Zhukovska. – Kyiv: “BIPOL”, 2004, p. 403

[20]  The Report on the results of the work of law enforcement bodies in fighting prostitution, in identifying high-risk groups and the results of their testing for AIDS, approved by Order of the State Department of Statistics from 10 December 2002 No. 436

[21]  The Bulletin “Nasha zhyzn” [“Our life”] ¹1(5) 2004, p.27 www.network.org.ua

[22]  In Ukrainian at: : www.helsinki.org.ua.  The Judgement can be found on the ECHR website: cmiskp.echr.coe.int

[23]  The right of an individual to their own name in the understanding of Article 8 of the European Convention on Human Rights and Fundamental Freedoms.  Available (in Ukrainian) on the Ministry of Justice’s website in the section “Commentary by specialists” www.minjust.gov.ua