III. Privacy issues
Legislative and policy responses to terrorism
The Foreign Intelligence Service of Ukraine (the Sluzhba Zovnishney Rozvidky Ukrayiny, or SZRU) became an independent state body, detached from law enforcement agencies, on October 14, 2005 when the President signed the Decree "On the Foreign Intelligence Service of Ukraine."1 The Verkhovna Rada approved the law on December 1, 2005.2 The SZRU combats counterterrorism, international organized crime, drug and weapon trafficking, and illicit migration. The SZRU believes that its independent state-supported agency status will help reform the agencies "in accordance with the principles of the democratic legal state."3 The Head of the SZRU, colonel-general Mykola Malomuzh, said that it is "impossible to use the Intelligence Service for purposes not prescribed by Ukrainian law."4 The separation is meant to keep the SZRU from using its information in state criminal matters.
The Law of Ukraine "On Fight Against Terrorism"5 came into effect in March 2003. Its adoption resulted in amendments, which were introduced to other laws and which, in particular, considerably restricted guarantees of secrecy in banking, access to information, and extended powers of the Security Service of Ukraine in terms of telecommunication monitoring.
On August 6, 2003, the action plan was adopted by the Cabinet of Ministers of Ukraine, which is aimed at ensuring the enforcement of the Law of Ukraine "On Fight Against Terrorism." The plan also stipulates the development by the Security Service of Ukraine of an amendment to the law "On Freedom of Conscience and Religious Organizations," which should provide for "a mechanism of registration of new religious organizations whose centers are located abroad, provided that preliminary legal, religious, medical and psychological examination of religions they practice is conducted."6 The Verkhovna Rada submitted its Draft Law "On Freedom of Conscience and Religious Organisations" to the Office for Democratic Institutions and Human Rights for review."7 The Joint Opinion found that many of the laws were "unduly vague and unclear" and some of the provisions were too restrictive."8
Ukrainian law-enforcement bodies, to counteract political opposition during the 2004 election campaign, used a set of measures envisaged by the law for combating terrorism. An explosion was set off in autumn at one of Kyiv's markets. Kyiv militiamen implicated oppositional youth political associations in this crime. Searches were conducted in the premises of the public campaign "PORA"9 in different Ukrainian regions. The Security Service of Ukraine conducted a search of the apartment of PORA's campaign leader, Mykhailo Svystovych, in the town of Irpin. Explosive materials were allegedly found in the PORA premises and activists were detained.10 Representatives of the law-enforcement bodies publicly called the PORA campaign a terrorist organization.11 The institution of criminal proceedings on charges of creation and participation in the activities of the "terrorist organization," allowed for criminal investigations against activists of opposition organizations. Members of the campaign claimed that they had nothing to do with the explosive materials found and law enforcement officials failed to provide evidence that the explosive materials belonged to the activists.12
The Security Service of Ukraine takes the initiative of expanding its powers by making reference to the international principles of combating terrorism. Thus, measures of monitoring Internet users and Ukrainian Internet network segment regulation are launched in order to counteract the so-called "computer terrorism." Therefore, the Security Service of Ukraine referring to recommendations of the Parliamentary Assembly of the Council of Europe on combating terrorism put forward the initiative of developing bills "On Protection of Information in Data Communication Networks," "On Regulation of the Ukrainian Segment of the Internet Network" and "On Telecommunications Monitoring."13
The last of the above bills was subject to a wide discussion in 2004. Non-governmental organizations of human right activists, Internet providers, and network users criticized the Security Service of Ukraine proposals and developed an alternative bill, "On Interception of Telecommunications."
The bill, developed jointly by the Internet Association of Ukraine (IAU), public organizations Ukrainian Internet Community (UIC) and Kharkiv Human Rights Group, provides for the creation of a system of automated remote interception of telecommunications - a protected special-purpose telecommunications network, to which the following facilities are connected: interception devices installed directly in the telecommunications operator's networks; arbitrary terminals installed within judicial authorities issuing permits for interception of telecommunications; online terminals installed within investigation divisions conducting criminal investigation, counter-intelligence, and intelligence and prejudicial inquiries; recording terminals installed at the office of the Human Rights Commissioner (Ombudsman) of the Verkhovna Rada.14 Persons to whom interception was applied should be informed of the interception period and the content of the information gathered through these means. In addition, the Ombudsman should annually publish statistical reporting about the interception of communications in Ukraine. The interception period may not exceed six months. The interception is solely applied to individuals suspected of committing grave offences and felonies (Article 10 of the draft law). This bill was carried through six Committees of the Verkovna Rada as the bill stipulating efficient privacy protection procedures and the Cabinet of Ministers of Ukraine subsequently revoked the bill "On Telecommunications Monitoring."15
The chief of the SBU, Yuri Radchenko, stated at a press conference on July 14, 2001, that the SBU "ha[d] no plans to control the Internet in Ukraine but that it would rather like to register all Ukrainian Internet users."16 In October 2001, the Council of National Security and Defense took a decision that was enacted by the Ukase of the President on The Measures for the Improvement of National Information Policy and Safeguards of Information Security of December 6, 2001 (No. 1193/2001). The Ukase directed the Cabinet of Ministers to elaborate and introduce draft laws compelling ISPs and electronic media to obtain licenses, monitor Internet traffic, and store Internet traffic data for a period of six months. It was President Kuchma's second attempt to require Ukrainian providers of communication services to install at their own expenses wiretapping equipment as a requirement to obtain a state license. The first attempt was Ukase No. 737/99 of June 27, 1999, supplemented with the draft law introduced to the Parliament on June 29, 1999. The Parliament of Ukraine considered the presidential proposal but turned it down by an Enactment of September 7, 1999 (No. 1016-14), and since then, the Cabinet of Ministers has not introduced any similar bill to the Parliament.
There are several other laws that control personal information.17 The cabinet approved the creation of a Single State Automated Passport System in January 1997 as a component of the State Register of Population.18 The system will be used as an internal ID system and hold both textual and graphical data about every Ukrainian. The text data will include: first, patronymic and last name, date of birth, sex, identification number, date of registration and residence, data of another state citizenship, data of passport and its duplicates, data of employment and education, matrimonial status, data of husband/wife and children, military draft status, date of documents for traveling abroad, and memoranda (disability care, restriction for traveling abroad). The graphical information will include: identifier, biometrics data and signature. Religious conservatives demonstrated in opposition to the application of personal identification numbers approved by the Act on State Register of Natural Persons ‚Äì Taxpayers.19 The Parliament approved an amendment to the statute in July 1999 allowing for an alternative system of registration to be used for persons with religious grounds for opposing identity numbers.20 There are also laws relating to tax information,21 social insurance,22 domicile registration,23 retirement insurance,24 unemployment insurance,25 criminal investigations,26 juvenile records,27 former prisoners,28 military service records,29 medical records,30 and HIV and AIDS records.31
The Ordinance of the President of Ukraine on the Establishment of the Unified State Register of Physical Persons No. 500/2004 of April 30, 2004 authorized the Ministry of Internal Affairs (MIA) to register persons by place of residence and to keep records of the Unified State Register of Physical Persons. The Ordinance also authorizes the MIA to improve the domestic personal identification document (national passport) and to bring it into accordance with European requirements, particularly with the decisions of the 2001 Warsaw Conference on Combating Terrorism.
The Parliament of Ukraine adopted a new edition of the Criminal Code on April 5, 2001. The new code includes several articles relating to privacy violation and will go into effect in September 2001. Article 132 prohibits dissemination of information about AIDS or other incurable diseases data by medical personnel. Dissemination of other confidential medical data by a doctor is punishable under Article 145. Article 162 provides for criminal liability for unlawful entrance, search and seizure. Article 163 criminalizes the unlawful wiretapping or interception of electronic communications. Article 168 provides liability for disclosing confidential information regarding child adoption. Finally, Article 182 on "Breaching the Inviolability of Private Life" provides that the "[u]nlawful collection, storage, usage or dissemination of confidential information related to a person without consent or the dissemination of such information in a public speech, or production or in the mass-media, is punishable by a fine of up to 50 multiple tax free incomes or correctional labor of up to two years or imprisonment of up to six months or limitation of liberty of up to three years."
Considering that the Constitutional Court of Ukraine has interpreted "confidential information" to include all personal data related to individual, the broad scope of Article 182 poses a real threat to freedom of speech. In order to address this issue, the draft bill on Personal Information (introduced in June 2001) proposes that this article be amended to criminalize only the use of personal data for unlawful actions that endanger the life or health of the person concerned.
Ukraine is currently in a transitional state after President Yushchenko ordered the dissolution of Parliament on April 2, 2007 and ordered new elections for May 27, 2007.32 This deadline was pushed back until September 30, 2007.33 The Prime Minister, Viktor F. Yanukovich, called an emergency session and passed a resolution declaring Mr. Yushchenko's decree to disband Parliament unconstitutional.34 This has thrown the country into turmoil.
On May 5, 2006, the Chukhuyivsky City Court of the Kharkiv Region, found President Yushchenko‚Äôs refusal to provide information about Presidential Decrees with stamps restricting access - either "Not to be Printed" or "Not to be Published" to be unlawful. However, the court did not demand the President to turn the information over.35 This is significant because Yushchenko has issued 44 acts assigned illegal stamps restricting access, despite the official acknowledgement by the Ministry of Justice of Ukraine that the use of the stamps restricting access not allowed for by legislation is illegal.36 Yushchenko‚Äôs use of these stamps is down from the approximately 900 acts from former President Kuchma.
The objective of a draft law titled "On the State Register of Voters in Ukraine," is to "create a single national register of voters in Ukraine... whereby voters [sic] data would be recorded in permanent ‘voter register’ [sic]."37 The draft law states "the exclusive list of data to be included in the register: name, date, and place of birth, residence address, date of acquisition of Ukrainian citizenship, and relevant data about the voter's capacity."38
Amendments to the Law on Prevention of Money Laundering No. 249-IV of November 28, 2002 provided for the establishment of a new executive public body authorized to undertake financial monitoring. The State Committee for Financial Monitoring of Ukraine39 became an independent agency on January 1, 2005, with a staff of 338 people.40 It replaced the Department for Financial Monitoring of the Ministry of Finance. It uses the database records of the State Unified Information System to prevent money laundering and terrorism financing. The database was established by Enactment No. 1896 of December 10, 2003 of the Cabinet of Ministers pursuant to the Financial Action Task Force on Money Laundering (FATF)'s Recommendations,41 as a separate part of the National System of Confidential Communications. It contains comprehensive data of different natures and resources from different state registers, and is accessible to the range of public executive and law enforcement bodies. It includes criminal records, data on lost passports, vehicle registration information, data on financial and other types of licenses, financial violations, import-export custom clearance records, tax register data, financial accounting records, investments, some commercial data, and border control records. The system became fully operational in 2006.42
On June 19, 2007 the Verkhovna Rada passed the law "On Amendment of Certain Legislative Acts of Ukraine on Prevention of Legalization of the Proceeds From Crime and Terrorist Financing," which has a reporting requirement for entities of such non-financial sector representatives as notaries, lawyers, real estate dealers, dealers in precious metals and stones, auditors, business entities providing legal or accounting services."43 This law also allows reporting entities to suspend financial transactions for two working days and to freeze "suspicious" financial transactions. This law corresponds to new Berline 2003 FATF 40+9 Recommendations,44 the Directive of the Prevention of the Use of Financial System with the Purpose of Money Laundering and Terrorist Financing (3rd EU Directive), 2005 CoE Convention on Laundering, Search, Seizure and Confiscation of Proceeds of Crime, and on the terrorist financing (Warsaw Convention).
Another problem is the issue of forced medical examination and interference of law-enforcement bodies into the family life of persons with untraditional sexual orientation. For example, law enforcement bodies still provide the State Statistics Committee with the information about discovered homosexuals and keep record thereof as constituting the AIDS-risk group.45
The All-Ukrainian Network of People Living with HIV reports the disclosure of the medical diagnosis of HIV-infected persons. HIV-infected persons are losing employment opportunities and access to social services. In Simferopol, a person was erroneously diagnosed with HIV and then suffered the disclosure of the HIV-infection diagnosis, brought a suit in court.46
Privacy case law
In a 2006 decision, Panteleyenko v. Ukraine, the European Court of Human Rights found that the Ukrainian government had violated the Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms when it obtained confidential information from a psychiatric hospital regarding the applicant's mental state and relevant medical treatment. This information was subsequently disclosed by the judge to the parties and other persons present in the courtroom at a public hearing in violation of Article 32 of the Constitution and Articles 23 and 31 of the Data Act 1992.47
In a second 2006 ruling, where interception orders of private correspondence against a suspect remained valid for more than a year after the criminal proceedings against him had terminated, the European Court of Human Rights found that the Ukrainian government had violated the European Convention on Human Rights 1950 Art. 8 and that there was a lack of effective domestic remedies under Art. 13. While Ukrainian legislation provided for the court's review of the initial decision to intercept correspondence, it did not provide for any interim review of the interception order at reasonable intervals or for any time limits on the interference. The Court held that interception orders for private correspondence must have a time limit. The Court also found that the Ukrainian legal system did not require a person to be informed that he or she was under surveillance, and even when the person found out, the right to question the lawfulness of the decision to intercept was limited in practice. The Court further held that the Ukranian law did not indicate with sufficient clarity the scope and conditions of the government's discretionary power, nor did it provide sufficient safeguards against the abuse of that surveillance system.48
The European Court of Human Rights has acknowledged the admissibility of six cases relating to Ukraine dealing with the infringement of the right of convicted persons to private life through correspondence, receipt of parcels, postal packets, limitation of the number of meetings with their relatives and conditions provided for such meetings. For the cases Poltoratsky v. Ukraine, Kuznetsov v. Ukraine, Aliev v. Ukraine, Nazarenko v. Ukraine, Dankevych v. Ukraine, Khokhlych v. Ukraine, the Court admitted the violation of Article 8 of the Convention for the above reasons.49
The European Convention on Human Rights, ratified by Ukraine in July 1997, requires Ukraine to refrain from impeding the applications of any persons in the country to the European Court of Human Rights. However, applicable Ukrainian legislation does not provide for any confidentiality procedure with regard to the correspondence sent from places of confinement to the European Court in Strasbourg. Currently, only letters, applications, proposals and complaints directed to the Authorized Officer of the Verkhovna Rada for Human Rights and the Prosecutor, are not examined by administrative institutions for execution of punishments. The bill developed by the Ministry of Justice, proposes some changes to the Criminal Punishment Execution Code and the Law of Ukraine "On Pretrial Detention." The bill proposes to establish, at the legislative level, the prohibition of any examination of correspondence sent from places of confinement to the European Court of Human Rights.50
In 2005, the European Court of Human Rights delivered a judgment admitting the violation by Ukraine of Article 8 of the European Convention on Human Rights. The court ordered payment of damages in the amount of EUR 8,000 to the Ukrainian national Romuald Novoseletskiy residing in Ussuriysk (Russian Federation).51 The funds are to be paid in compensation for material as well as non-material damages. The former category stems from the loss of goods from Mr. Novoseletskiy's apartment, during the time that somebody else was living in his apartment, accordingly to the authorization issued by some governmental institution. The plaintiff also suffered from non-material damage that was caused by the impossibility to reside in his own apartment with his family for a long period of time. The European Court of Human Rights admitted that, as a result of the unlawful decision, Mr. Novoseletskiy had to live with a family that was not his own, which constituted an infringement of his right to private and family life (right to privacy).52
- 1. http://www.fisu.gov.ua/cms/en/index/functions/2.html
- 2. http://www.welcometo.kiev.ua/pls/ili/ilic.frame_law_result2.show?p_arg_n...
- 3. http://www.fisu.gov.ua/messages.php?lang=en&item=20&page=1
- 4. http://www.fisu.gov.ua/messages.php?lang=en&item=33&page=1
- 5. http://www.welcometo.kiev.ua/pls/ili/ilic.frame_law_result2.show?p_arg_n...
- 6. http://www.welcometo.kiev.ua/pls/ili/ilic.frame_law_result2.show?p_arg_n...
- 7. http://www.legislationline.org/upload/lawreviews/63/42/e9be8e0732377acb1...
- 8. Id.
- 9. http://pora.org.ua/eng/
- 10. http://news.amnesty.org/index/ENGEUR500042004/
- 11. http://www.jamestown.org/publications_details.php?volume_id=401&issue_id...
- 12. Id.
- 13. http://www.khpg.org/en/index.php?id=1151854687
- 14. http://www.irf.kiev.ua/en/programs/inf/inf/news/?doc:int=1161
- 15. Ukrainian Helsinki Human Rights Union, "Human Rights in Ukraine - 2004," supra, at 92.
- 16. http://www.zn.kiev.ua/nn/show/352/31695/
- 17. http://www.lda.brandenburg.de/sixcms/media.php/2232/08_pazyuk.pdf
- 18. The Statutory Order of the Cabinet of Ministers (CM) of January 20, 1997 (No 40).
- 19. http://www.welcometo.kiev.ua/pls/ili/ilic.frame_law_result2.show?p_arg_n...
- 20. Id.
- 21. Id.
- 22. Law No. 16/98, The Basic Legislation of Ukraine on Obligatory State Social Insurance, January 14, 1998 .
- 23. The MIA Order No. 66, February 3, 1992 .
- 24. Statutory Order of the CM No. 794, June 4, 1998 .
- 25. The Statutory Order of CM No. 578, May 27, 1998.
- 26. The Order of Office of Public Prosecutor No. 22/835, December 21, 1995; The MIA Order No. 190, January 14, 1994.
- 27. Law No. 20/95, The Law on Organs and Services on Juveniles and Dedicated Educational Institutions for Juveniles, January 1995; Ministry of Education Order No. 362, December 27, 1994.
- 28. http://www.welcometo.kiev.ua/pls/ili/ilic.frame_law_result2.show?p_arg_n...
- 29. Department of Defense Orders of June 27, 1995 Nos. 165, 166 approved the Regulation on Military Record Maintained at the Place of Employment or Study (Public or Private) and the Regulation on Military Domiciliary Registration.
- 30. Law of September 19, 1992.
- 31. Law on the Prevention of AIDS Contamination and Social Aid on Civilians (adopted on March 3, 1998) as well as Article 13 of the Discipline of Medical Inspection on HIV Results, Registration of HIV and AIDS Persons and Medical Care (approved by the Statutory Order of the Cabinet of Ministers, December 18, 1998).
- 32. Andrew E. Kramer, "Embattled Ukrainian Leader Disbands Parliament," N.Y. Times, April 3, 2007, at A6.
- 33. "World Briefing Europe: Ukraine: President Sets Sept. 20 For Elections," N.Y. Times, June 6, 2007, at A9.
- 34. Kramer, supra.
- 35. http://www.khpg.org/en/index.php?id=1149723493
- 36. http://www.khpg.org/en/index.php?id=1145710178
- 37. http://www.legislationline.org/upload/lawreviews/42/ed/0269c4c215bf7039d...
- 38. Id.
- 39. http://www.sdfm.gov.ua/index.php?lang=en
- 40. http://www.sdfm.gov.ua/content/File/pdf/zvit%202005_english.pdf
- 41. http://www.fatf-gafi.org/dataoecd/14/53/38336949.pdf
- 42. http://www.sdfm.gov.ua/articles.php?cat_id=174&lang=en
- 43. http://www.sdfm.gov.ua/news.php?news_id=406&lang=en
- 44. http://www.fatf-gafi.org/dataoecd/14/53/38336949.pdf
- 45. Report on the performance of interior bodies in their fighting against prostitution, detection of risk group, and the results of their AIDS-examination, approved by the Order No. 436 of the State Statistics Committee of Ukraine, as of December 10, 2002.
- 46. http://www.network.org.ua
- 47. http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=htm...
- 48. Volokhny v. Ukraine, 9 I.T.L Rep. 328 (2006).
- 49. See Poltoratskiy v Ukraine, 39 Eur. Ct. H.R. 43 (2004).
- 50. http://rupor.info/
- 51. http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=htm...
- 52. Id.