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EPIC --- Privacy and Human Rights Report 2006

Mongolia

Constitutional Privacy Framework

The Constitution of Mongolia recognizes the right to personal liberty and safety under Section 13 of Article 16. That section states: "No one shall be searched, arrested, detained, persecuted, or restricted of liberty except in accordance with procedures and on grounds determined by law. No person may be subjected to torture, inhumane, cruel, or degrading treatment. Where a person is arrested his/her family and counsel shall be notified within a period of time established by law of the reasons for and grounds of the arrest. The privacy of citizens, their families, correspondence, and homes shall be protected by law."[3648]

Data Protection Framework

In the past, a special law regulating relations connected with personal secrecy did not exist. The adoption of the Law on Personal Secrecy by the State Great Hural (the Parliament) in 1995 therefore was a novelty in the legal practice of Mongolia, attesting to the legalization of the protection of human rights, honor and reputation. With this law a significant step forward has been made in the direction of guaranteeing human rights and freedoms and realization of the concept that in settling civil suits and disputes the courts shall not apply legislation that contradicts the Constitution, the general foundations of the Civil Code of Mongolia, and any decisions that set the norms pertaining to State administration.[3649]

The Law on Personal Secrecy (Privacy Law) of Mongolia defined the right in more detail, and categorized it as the following five types: secrecy of correspondence; secrecy of health information; secrecy of property; secrecy of family; and other secrecy, which is defined by laws.[3650] Aimed at protecting human rights, honor and dignity, this law includes within personal secrecy any information, documentation and material object defined by the pertinent laws of Mongolia as secret. The significance of determining the types of personal secrecy and the grounds and procedure for making it public in the law is twofold. First, it establishes that information pertaining to human health, property, correspondence and family is secret. Second, it creates a legal basis for revealing such data in cases when this is unavoidable for reasons of national security, national defense, public health and legal interests. This law also establishes the right of citizens to sue anyone who divulges their personal secrets.[3651]

According to the Privacy Law, the government should also protect citizens' secrets in accordance with procedures and on grounds determined by law.[3652] Only officials of authorized state organizations have access to personal data of citizens that is kept in accordance with procedures and on grounds determined by law. In addition, the law prohibits revealing a person's private information that was gained in accordance with procedures and on grounds determined by law. According to the Privacy Law, the court will fine a person who breaks the law and reveals a person's private data in an unauthorized manner.[3653]

The National Program for Improving Human Rights was approved on October 24, 2003. The goals of the program were: make the Privacy Law more distinct; develop an information list that contains citizens' secrecy, family secrecy, correspondence secrecy, health secrecy, property secrecy, etc.; conduct training for officials dealing with citizens' secrecy who are employed at all types of organizations including public, private, and civil society organizations; and raise responsibility of the officials by obliging them to take an oath, etc.[3654]

About 20 laws, such as Health Law, Donors Law, Insurance Law, and Tax Law, were brought to conformity with the Privacy Law. Further, the Criminal Code and the Code of Criminal Procedure incorporate detailed provisions guaranteeing the security of privacy. The criminal legal protection against the violation of individuals' privacy was established in Article 18[3655] of the Criminal Code entitled "Crimes against the citizens' political and other rights and freedoms." Violations of privacy imply the legal liability (e.g. criminal, administrative, material, etc.) of those who unlawfully cause any of the following: violation of the legislation by the intelligence activities;[3656] violation of the privacy of correspondence;[3657] disclosure of private secrets;[3658] and violation of home.[3659]

If a person violates the Criminal Code, courts can impose upon him a penalty such as fine, enforcing to work, arresting three to six months, and imprisoning up to three years. According to the Criminal Code, a person who illegally obtains computer data will face criminal penalty.[3660]

Wiretapping and Surveillance Rules

The law of Intelligence Operation determines the lawful disclosure of private secrets. According to the law, only a few organizations have a right to conduct "executive work." These organizations include Intelligence, military intelligence organization, police, enforcement agency (established by a court decision), and the Border Intelligence Agency.[3661] Those organizations are allowed to conduct surveillance (telephone and mail correspondence), to make secret inspection (including home, organization, vehicles, luggage, and things), and to use special equipment enabling them to intercept communications. However, they must first obtain a prosecutor's written permission.[3662] Moreover, the prosecutor must supervise all of their activities.[3663]

In Mongolia, the Intelligence is responsible for registration of the surveillance equipment and for control of its usage. The prosecutor's office exercises control on registration of surveillance equipment. However, the law of Intelligence Operation does not include any regulation on the production or import of surveillance equipment. Moreover, the law does not ban the import, sale, possession, or use of surveillance equipment by citizens and organizations, and does not establish any legal ground for system of amenability on wrongdoers.

According to the Law on Approval of the List for State Secrets, the reports, news, studies of executive works, documents of special funds, documents of crimes under control or investigation, and other related issues[3664] are considered state secrets. Therefore, one cannot know how many people were investigated secretly, and who uses the surveillance equipment and for what purposes.

The Law of Mongolia on Telecommunications[3665] charges an administrative body with maintaining the “safety, efficiency and quality of telecommunications services, and to control the protection of privacy of correspondence.”[3666] The law also obliges operators to protect the privacy of all information transmitted through telecommunications networks.[3667] The Government Intelligence Agency, with the consent of the prime minister, has monitored and recorded telephone conversations.[3668] The U.S. State Department reports that the extent of the monitoring is unknown, and that police wiretaps must be approved by a prosecutor’s office.[3669]

In 2000, the National Human Rights Commission of Mongolia (“Commission”), which includes the Human Rights Ombudsman, was established by Parliament. The Commission is charged with the promotion and protection of human rights, and with monitoring the implementation of the provisions of human rights and freedoms[3670] enshrined in the constitution of Mongolia, laws and international treaties to which Mongolia is a party. The commission published human rights status reports[3671] in 2002 and 2003 and distributed them to the government and the broader public. The Commission has reported that police and other law enforcement agencies do not respect the security and liberty of persons and civil rights are often abused.[3672] Many of the country’s laws leave much discretion to state authorities regarding search and entry into private premises, use of coercive measures, arrest and detention.[3673]

Open Government

The U.S. Embassy in Mongolia reports that Mongolians have begun the process of improving transparency and access to information in the country.[3674] The government is considering amending its State Secrets law, which many consider overly restrictive.[3675] The law currently extends the definition of “state secret” to include not only national security interests, but also a host of non-sensitive information such as census data, audits of state owned companies and draft laws, amendments and regulations.[3676] As of May 2007, the Cabinet of Ministers discussed a final draft of a Freedom of Information law,[3677] but action was postponed on the law to allow it to be discussed along with draft laws on information security and information technology.[3678]

In November 2006, the international anti-corruption non-governmental organization Transparency International (TI) included Mongolia in its annual "Perceptions of Corruption" survey. Mongolia ranked 99 out of 163 countries and its score (2.8 out of 10, where 10 is the "best") is "poor."[3679] In addition, United Nations Development Programme (UNDP) surveys of Mongolia, conducted in 1999 and again in 2002 and 2003, also indicate a growing and serious entrenchment of bureaucratic and political corruption in Mongolia.[3680] The Mongolian government signed the United Nations Convention Against Corruption in April 2005 and ratified it in January 2006.[3681] In addition, draft anti-corruption legislation is under consideration by Parliament.[3682] A 2006 U.S. State Department report finds that one factor contributing to the growing corruption problem involves the lack of transparency and access to information that surrounds many government functions.[3683] Journalists have been subjected to physical intimidation by government officials as well as private citizens unhappy with news reports.[3684] Government interference with licensing and indirect intimidation of the press, particularly the broadcast media, is also a concern.[3685]

International Obligations

In the past 15 years, Mongolia has made key progress in terms of respect human rights, including protecting privacy, but much remains to be done to ensure to full consistency with international law. Mongolia has joined more than 30 international treaties and conventions on human rights.[3686] It has ratified eight United Nations conventions on human rights.[3687] However, Mongolia has not yet joined the following international conventions concerning automatic personal data processing: Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data (Convention No. 108);[3688] European Convention for the Protection of Human Rights and Fundamental Freedoms;[3689] and European Council Directive on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of such Data 95/46/EC of 1995.

[3648] Constitution of Mongolia of 1992, available at <http://www.pmis.gov.mn/law/english/pdf/constitution_mongolia.pdf>.

[3649] UN Fourth Periodic Report of States Parties due in 1995: Mongolia,14/06/99. CCPR/C/103/Add.7. (State Party Report), available at <http://www.hri.ca/fortherecord2000/documentation/tbodies/ccpr-c-103-add7.htm>.

[3650] The Law on Personal Secrecy of Mongolia 1995 at Article 4.
[3651] UN Fourth Periodic Report of States Parties: Mongolia, supra.

[3652] Id. at Article 5.
[3653] Id. at Article 8.

[3654] The National Programme for Improving Human Rights, Article 2.1.3.

[3655] Criminal Code of Mongolia (in Mongolian), available at <http://www.cis-legal-reform.org/document.asp?id=7334>.
[3656] Id. at Article 133.
[3657] Id. at Article 135.
[3658] Id. at Article 136.
[3659] Id. at Article 137.

[3660] Id. at Article 227.

[3661] Law of Intelligence Operation, Article 9.
[3662] Id. at Article 11.
[3663] Id. at Article 23.

[3664] Law on Approval of the List for State Secrets, Articles 1.50, 1.53.

[3665] Law of Mongolia on Telecommunications (unofficial translation), International Telecommunication Union, November 16, 1995, available at <http://www.itu.int/ITU-D/treg/Legislation/Mongolia/Mongolia_law.htm>.
[3666] Id.
[3667] Id.
[3668] Country Reports on Human Rights Practices 2006, Mongolia, U.S. Department of State, March 6, 2007, available at <http://www.state.gov/g/drl/rls/hrrpt/2006/78783.htm>.
[3669] Id.

[3670] The National Human Rights Commission homepage <http://www.nhrc-mn.org>.
[3671]See <http://www.nhrc-mn.org/doclinks.asp?group=reports>.
[3672] Press Release, “Baseline Study on Human Rights Situation in Mongolia (2001),” NHRC, available at <http://www.nhrc-mn.org/>.
[3673] Id.

[3674] Press Release, “World Press Freedom Day: Mongolia Making Progress,” Embassy of the United States – Mongolia, May 2, 2007, available at <http://mongolia.usembassy.gov/05/02/07.html>.
[3675] Id.
[3676] Id.
[3677] See Open Society Forum, Law of Mongolia on Freedom of Information, September 18, 2006, unofficial translation of draft law available at <http://www.openforum.mn/policyissue/FOILawDraft_en.pdf>.
[3678] Press Release, “World Press Freedom Day: Mongolia Making Progress,” supra.

[3679]Corruption Perceptions Index 2006, Transparency International, November 6, 2006, available at <http://www.transparency.org/policy_research/surveys_indices/cpi/2006>.
[3680] See <http://www.undp.org.mn/new/>.
[3681] United Nations Convention Against Corruption, Ratification/Signatories, available at <http://www.unodc.org/unodc/crime_signatures_corruption.html>.
[3682] “2006 Investment Climate Statement Mongolia,” U.S. Department of State Report, available at <http://www.state.gov/e/eeb/ifd/2006/62017.htm>.
[3683] Id.
[3684] Country Reports on Human Rights Practices 2006, Mongolia, U.S. Department of State, March 6, 2007, available at <http://www.state.gov/g/drl/rls/hrrpt/2006/78783.htm>.
[3685] Id.

[3686] See Baseline Study on Human Rights Situation in Mongolia (2001), National Human Rights Commission of Mongolia, available at <http://www.nhrc-mn.org>; see also Treaties, National Legal Center, <http://gate1.pmis.gov.mn/law/english/treaties.html>.
[3687] Status By Country, Office of United Nations High Commissioner for Human Rights, available at <http://www.unhchr.ch/tbs/doc.nsf/newhvstatusbycountry?OpenView&Start=1&Count=250&Expand=115#115>.
[3688] Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data
(ETS no.: 108), available at <http://conventions.coe.int/Treaty/Commun/ListeTraites.asp?CM=8&CL=ENG>.
[3689] Convention for the Protection of Human Rights and Fundamental Freedoms.
(ETS no.: 005), available at <http://conventions.coe.int/Treaty/Commun/ListeTraites.asp?CM=8&CL=ENG>.