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EPIC --- Privacy and Human Rights Report 2006

Ukraine

Constitutional Privacy Framework

The Constitution of Ukraine guarantees the right of privacy and data protection.[5293] Article 31 states, "Everyone is guaranteed privacy of mail, telephone conversations, telegraph and other correspondence. Exceptions shall be established only by a court in cases envisaged by law, with the purpose of preventing crime or ascertaining the truth in the course of the investigation of a criminal case, if it is not possible to obtain information by other means." Article 32 states, "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, except in cases determined by law, and only in the interests of national security, economic welfare and human rights. Every citizen has the right to examine information about himself or herself, that is not a state secret or other secret protected by law, at the bodies of state power, bodies of local self-government, institutions and organizations. Everyone is guaranteed judicial protection of the right to rectify incorrect information about himself or herself and members of his or her family, of the right to demand that any type of information be expunged, and also the right to compensation for material and moral damages inflicted by the collection, storage, use and dissemination of such incorrect information." There is also a right of freedom of information. Article 34 states: "Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice." Article 50 states, "Everyone is guaranteed the right of free access to information about the environmental situation, the quality of food and consumer goods, and also the right to disseminate such information. No one shall make such information secret."

Data Protection Framework

There have been efforts to enact a data protection act for several years. However, as of June 2007, no data protection act has been enacted. However, on February 23, 2006, the Ukrainian Parliament passed a law titled “On State Service for Special Communication and Information Protection of Ukraine” which went into force on January 1, 2007.[5294] This law created an agency to develop a state system of “governmental communications, the National System of confidential communications, protection of state informational resources in the informational and telecommunications systems, cryptographic and technical protection of information.” A draft Law on Personal Data Protection (No. 2618) passed first hearings on May 15, 2003, and has not yet been submitted for second hearings. This draft law was submitted by Members of Parliament Rodionov, Nikolaenko, Yukhnovsky, Tolochko, and Sytnyk, and drafted by communications experts, employees of the State Committee on Communications and Information, and the Ministry of Internal Affairs. In June 2001, Oleksandr Zadorozhniy (then Chief of the Parliament Committee on Legal Policy, currently the Representative of the President in the Parliament) introduced an alternative draft bill on Personal Information to the Parliament. The bill was prepared with the assistance of Mr. A. Pazyuk, Director of Privacy Ukraine. The draft covers public and private sectors, provides natural persons with the right to informational self-determination. It includes special provisions concerning sensitive data (racial origin, nationality, trade union membership, political, philosophical and religious beliefs, medical and health data, and data on criminal offenses) and imposes limitation of data transfer to third countries with inadequate level of data protection. The draft proposes the establishment of independent authority for supervision. The National Agency on Personal Data Processing Supervision would be empowered to conduct investigations, impose sanctions, maintain a national register of databases, and to adopt or approve codes of fair information practices proposed by the private sector. The draft would require amendments to the Constitution to provide for the appointment of the National Agency chief nominated by the President of Ukraine and subject to the authority of the Parliament. The Agency would be required to submit annual reports to Parliament. MP Zadorozhniy's draft received positive evaluation by the experts of the Council of Europe in 2001 as it is based on the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data (ETS No. 108) (Convention No. 108) and the EU Data Protection Directive (1995/46/EC). At the same time, the direct marketing industry opposed strong data protection rules. The main obstacle for the adoption of a data protection legal framework in Ukraine is the misunderstanding of the role of a data protection commissioner and the unwillingness to establish an additional public body with effective powers of control.

The new Civil Code, which entered into force on January 1, 2004, introduced a number of sectoral privacy-related safeguards within Book II (Personality Rights). It ensures a tort cause of action for the violation of an individual's personal privacy interest in his or her health status, personal life, personal papers, correspondence, and inviolability of business reputation. The Code enables an individual to control the publicity of his or her image in photographs, artistic pieces, and movies, as well as safeguard the inviolability of one's name.

The biggest violations of the right to privacy are associated with the privacy of communication. The legislation does not provide clear reasons for information retrieval from communication channels (wiretapping of telephones, mobile phones or keeping track of e-mail messages and Internet browsing), a specific period of such information retrieval and the circumstances under which such information should be destroyed and how it may be used. The guarantees of legitimacy of information retrieval from communication channels are insufficient. As a result, no one can monitor the number of permits and necessity of eavesdropping, while persons, to whom such actions were applied, are not aware of them and, thus, cannot appeal against such actions in the court of law or otherwise protect their right to privacy.[5295]

The Law on Telecommunications No. 1280-IV was enacted on November 18, 2003.[5296] It provides certain guarantees for privacy protection. Operators and providers have to protect the secrecy of personal data (Article 34). Consumer's personal data and data on telecommunication services can be provided to third parties with the data subject's consent or on the conditions provided by law. Subscribers' personal data may only be included in directories with the data subject's permission. The Law does not restrict personal data collection by service providers but prohibits further dissemination.[5297] The National Regulatory Commission for Communication (NRCC) is empowered to protect consumer's rights (including data protection) (Article 21).

The Act on the Operational Investigative Activity (OIA) of February 18, 1992, empowers law enforcement agencies to conduct surveillance. The agencies are obliged to obtain a warrant under the court procedure as implemented by the Act of the Supreme Court Plenary Session of November 1, 1996.[5298] The Statute does not provide wiretapping procedure rules. Those are regulated by secret rules, adopted by the joint Ministry of Internal Affairs and State Committee as Communications Order No. 745/90 of September 30, 1999. The applications are registered and include the names of officials, and the date and type of communications. Statistical data on wiretapping activity is not publicly available. Under Article 11 of the Act, priests, doctors, and lawyers cannot be asked about information concerning their clients, and any such information cannot be used as evidence in court. However, in practice, the courts regularly use such information. The special services investigated the Kazakhstan Energy Grid Operating Company in June 2000 for the illegal tapping of employee conversations and charged one employee with a violation of the criminal code.[5299]

On January 18, 2001, a new law was passed amending the OIA Act of 1992. The new Act clarifies the offenses for which surveillance may be used and significantly improves procedures for judicial supervision and oversight. Individuals are not granted full access to the personal data collected by police during the investigation and are allowed only to receive an explanation of the human rights implications of the surveillance. The Act prohibits the dissemination of information about undisclosed crimes, information that might damage an open investigation, a person's interest or the security of the State. The disclosure of State secrets is also prohibited. An Order of the Chief of the Security Service dated March 1, 2001 defines a State secret as data relating to "the preparation, performance and results of secret OIA measures used against persons who are preparing or have committed especially dangerous or heinous crimes against the State."

Wiretapping and Surveillance Rules

A draft law is before the Ukrainian Parliament (Verkhovna Rada) aimed at protecting the privacy of mail, telephone conversations, telegraph and other correspondence. The draft law prohibits interception of information from mobile communications, unless it is for counterterrorism reasons or on the basis of a court order. The draft law does not have any guarantees against wiretapping.[5300]

In April of 2007, the Verkhova Rada set up an investigative commission to identify the officials at the Ukrainian Security Service who allegedly gave orders to install wiretaps and track the movements of lawmakers, Constitutional Court justices, members of the Central Election Commission and the public.[5301] No determination has been made at this point.

In February 2005, President Yushchenko ordered the National Security Service (SBU) and all government organizations to end all illegal surveillance.[5302] In July 2005 the SBU Chief at the time, Oleksandr Turchynov, said “that the SBU no longer engaged in illegal surveillance operations and had created an office for combating illegal wiretapping. He also instructed other government organizations to turn in their wiretapping equipment.” However, there are complaints that electronic eavesdropping is still taking place.

“According to a board member of the Internet Association of Ukraine, the SBU monitors up to 70 percent of Internet traffic. On August 17, 2006 the Ministry of Justice abolished the 2002 decree by the State Communications Committee on mandatory monitoring of Internet traffic in the networks of providers that service public institutions. This decree had allowed security services to legally monitor e-mail communications and Web site hits of individual Internet site users.”[5303]

Ukrainian wiretapping equipment is currently owned by various governmental authorities, in particular, the Ministry of Interior, the State Frontier Service, Tax Militia of the State Tax Administration, the Department for Execution of Punishments, and intelligence agencies.[5304] Specific data about the scope of wiretapping of telephone talks in Ukraine are not known since the official statistics are not provided by governmental authorities. However, it was reported that in 2002 the courts issued over 40,000 authorizations. It was officially confirmed that in 2003 the Appellate Court of Chernivtsi oblast, which is the smallest region of Ukraine, issued 823 permits for wiretapping in communication channels.[5305] The Kharkiv Human Rights Protection Group claimed that special units at the Security Service of Ukraine, the Ministry of Internal Affairs, and State Tax Administration obtained over 11,000 permits for telephone tapping in 2005.[5306]

The Ukrainian Supreme Council has supported a resolution to create a parliamentary ad hoc commission to investigate violations of the confidentiality of telephone conversations.[5307] Last year, the Supreme Council parliament renewed prosecutor supervision over people's and politicians' constitutional right to privacy of telephone conversations and correspondence.

Currently, the main electronic classifier, which is the basis for collection and processing of the personal data of Ukrainian citizens, is an ID code provided by the State Tax Administration.[5308] The scope of its use constantly grows and extends far beyond the goal for which it was originally introduced – tax accounting. Failure to obtain an identification code would make it impossible to be legally employed, be provided with retirement benefit, exercise the right to education, be granted scholarships and unemployment benefit, register subsidies, open bank accounts, and register oneself as a business entity, etc.

Anti-terrorism Measures

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.”[5309] The Verkhovna Rada approved the law on December 1, 2005.[5310] 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.”[5311] 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.”[5312] The separation is meant to keep the SZRU from using its information in state criminal matters.

The Law of Ukraine "On Fight Against Terrorism"[5313] 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."[5314] 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.”[5315] The Joint Opinion found that many of the laws were “unduly vague and unclear” and some of the provisions were too restrictive.”[5316]

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"[5317] 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.[5318] Representatives of the law-enforcement bodies publicly called the PORA campaign a terrorist organization.[5319] 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.[5320]

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."[5321]

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.[5322] 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."[5324]

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."[5325] 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.[5326] The cabinet approved the creation of a Single State Automated Passport System in January 1997 as a component of the State Register of Population.[5327] 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 – Taxpayers.[5328] 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.[5329] There are also laws relating to tax information,[5330] social insurance,[5331] domicile registration,[5332] retirement insurance,[5333] unemployment insurance,[5334] criminal investigations,[5335] juvenile records,[5336] former prisoners,[5337] military service records,[5338] medical records,[5339] and HIV and AIDS records.[5340]

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.

Recent Developments

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.[5341] This deadline was pushed back until September 30, 2007.[5342] The Prime Minister, Viktor F. Yanukovich, called an emergency session and passed a resolution declaring Mr. Yushchenko's decree to disband Parliament unconstitutional.[5343] This has thrown the country into turmoil.

On May 5, 2006, the Chukhuyivsky City Court of the Kharkiv Region, found President Yushchenko’s 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.[5344] 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.[5345] Yushchenko’s 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].”[5346] 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.”[5347]

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 Ukraine[5348] became an independent agency on January 1, 2005, with a staff of 338 people.[5349] 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,[5350] 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.[5351]

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.”[5352] 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,[5353] 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.[5354]

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.[5355]

Major 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.[5356]

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.[5357]

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.[5358]

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.[5359]

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).[5360] 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).[5361]

Open Government

A Ukrainian Independent Political Research Centre survey of 85 governmental body websites found that the “average level of openness in providing information is 68%” and that the Ministry of Transport and Communications provides the most information, while the Ministry of Environmental Protection has the least.[5362] The study also found that there was little information about “the procedure for appealing against decisions taken by the relevant agency.”[5363]

On May 25, 2006 the Cabinet of Ministers announced that “all court judgments, except those qualified as state secrets court rulings” are to be sent to a single state register “no later than 15 calendar days after the ruling is made.”[5364] The register will be free for all to access, creating more judicial transparency.

The 1992 Act on Information[5365] defines only general principles of citizens' access to information personally related to them. The Act provides a right of access to government records. Individuals have the right to get access to information concerning them (Article 9). Exceptions are to be defined by law. There are methods for making official information public, including disclosing it to interested persons orally, in writing or in other ways (Article 21). Article 23 of the Act prohibits the collection of personal data without the data subject's consent.[5366] Any data subject has the right to know about data collection (Article 23). The right to obtain non-covert information is limited (Article 29), although there are many exceptions to this rule (Article 37). The author of a rejected or postponed request has a right to appeal the decision to a higher echelon or court (Article 34). There is limited access to the files of the former secret police under the Act "on rehabilitation of victims of political repressions," which gives the rehabilitated citizen or his heirs the right to read his personal file kept in the KGB archives. There are exceptions for national security and economic well-being reasons. Information that would affect another individual's rights and freedoms is also exempted. Confidential information includes, in particular, information about a person such as education, marital status, state of health, date and place of birth, property status and other personal details.

Access to public and private archives is regulated by the Law on National Archival Fund and Archival Bodies of December 24, 1993 (No. 3814-XII) in the version of the Law of December 13, 2001 (No. 2888-III). Article 16 provides that archival bodies have the right to limit access to documents owned by state or local communities containing state secrets, or other secrets protected by the laws until the documents are declassified by state secrecy experts. The Law on State Secret of November 21, 1999 regulates the duration of access limitation. It ranges from five to 30 years depending on the level of secrecy. Public access to confidential personal data, the disclosure of which could threaten life or the inviolability of the home, is barred for 75 years. It is possible to get access to such documents with the permission of the data subject or his heirs. Access is permitted to the staff of archival bodies, courts, law-enforcement and tax bodies if provided by laws.

On May 11, 2004, the Verkhovna Rada adopted the Law on Amendments (No. 1703-IV) to amend a number of laws in the field of protection of state secret, administrative liability for the illegal use of wiretapping, access to information, etc. The right of print media journalists to freely receive, use, disseminate and store information will be limited to information that has "open access" status (amendments to Articles 2(1) and 26(2) of the Law on Printed Mass Media). After the law had been initially adopted in July 2003, it was strongly opposed by the EU representatives, the Organization for Security and Cooperation in Europe (OSCE), the International Federation of Journalists (IFJ), domestic NGOs, and the Parliamentary Committee on freedom of speech and information. In an open address, a number of NGO representatives and politicians appealed to the President not to promulgate the law as far as its provisions violate the Constitution of Ukraine and global freedom of information standards. Due to external and internal pressure, a number of amendments were introduced at the final stage, improving the final draft. The Law on Amendments introduces the term "state-owned confidential information." This includes all information owned by the state and used by state entities, bodies of local self-government, as well as organizations and companies with mixed ownership. Access to this data is restricted. The authority to establish rules for storing and using documents containing confidential information owned by the state is given to the government (amendments to Article 30 of the Law on Information). According to the Law, it is not allowed to classify as confidential environmental information, information on disasters, statistical data, information on violations of human rights and breaches of law, as well as information that should be publicly accessible according to domestic and international laws. The Cabinet of Ministers of Ukraine is empowered to adopt a list of what is considered "confidential information" taking into consideration the provisions of the Ukrainian Constitution and international law obligations (including the provisions of Article 10 of the European Convention on Human Rights).[5367]

International Obligations

Ukraine is a member of the Council of Europe (CoE). It signed, but has not ratified Convention No. 108, which provides guarantees in relation to the collection and processing of personal data, it outlaws the processing of "sensitive" data on a person's race, politics, health, religion, sexual life, criminal record, etc. in the absence of proper legal safeguards. The Convention also enshrines the individual's right to know that information is stored on him or her and, if necessary, to have it corrected. On the same day the Ukraine signed Convention No. 181, which provides for a national supervisory authority responsible for ensuring compliance with laws and regulations adopted by in pursuance of the convention and mandating that data may only transfer data to third countries if the recipient State or international organization is able to afford an adequate level of protection.[5368] Neither Convention has been ratified. Ukraine has signed and ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms, which forms part of its national legislation.[5369] The Ukraine has also signed and ratified the Council of Europe’s Convention on Cybercrime (ETS No. 185), which entered into force in the Ukraine on July 1, 2006.[5370] The European Parliament adopted an action plan for seven countries, including the Ukraine on December 9, 2004, which has not been ratified. The aim of the plan is “to hold out the prospect, not of membership but of gradual integration into certain EU policies (e.g. education, research, environment), to improve cooperation in fighting crime and in managing borders and population movements, and also to bring national laws gradually into line so that these countries can enjoy the benefits of the internal market.”[5371] The Ukraine has also signed and ratified Convention No. 90 (European Convention of the Suppression of Terrorism), No. 196 (Council of Europe Convention on the Prevention of Terrorism) and No. 190 (Protocol amending the European Convention on the Suppression of Terrorism), all of which attempt to establish procedures for counterterrorism measures while protecting privacy.[5372]

[5293] Constitution of Ukraine, adopted at the Fifth Session of the Verkhovna Rada of Ukraine, June 28, 1996, available at <http://alpha.rada.kiev.ua/const/conengl.htm>.

[5294] Law No 3475-IV, On the State Service for Special Communications and Information Protection of Ukraine, February 23, 2006, available in English at <http://www.welcometo.kiev.ua/pls/ili/docs/a_law_eng/E3475-IV.html>.

[5295] Ukrainian Helsinki Human Rights Union, Human Rights in Ukraine – 2004, 92 (Y. Zakharov & V. Yavorskiy eds., 2005) available at <http://www.khpg.org/en/index.php?id=1126950808>.

[5296] The laws of Ukraine, as well as other legislative documents, can be found on the website of the Parliament of Ukraine available in English at <http://portal.rada.gov.ua/control/en/index>.
[5297] E-mail from Andriy Pazyuk, Privacy Ukraine, to Cédric Laurant, Policy Counsel, Electronic Privacy Information Center (EPIC), (July 9, 2003) (on file with EPIC).

[5298] Directive of the Supreme Court of Ukraine, No. 9 of November 1, 1996, on referring to the Constitution in Administering Justice.
[5299] “Power Company Denies Involvement in Telephone Tapping,”, BBC Summary of World Broadcasts, June 2, 2000.

[5300] Human Rights in Ukraine, “Parliament Has, It Would Seem, Approved a Ban on Unsanctioned Wiretapping,” KHPG.org, December 1, 2006 <http://www.khpg.org/en/index.php?id=1165008799>.

[5301] “Rada vows to discover who ordered bugging of lawmakers, judges,” Ukr. Gen. Newswire 12:42:46, April 9, 2007.

[5302] U.S. Dep’t of State, Country Reports on Human Rights Practices, Ukraine 2006, March 6, 2007 <http://www.state.gov/g/drl/rls/hrrpt/2006/78846.htm>.

[5303] Id.

[5304] Radio Free Europe/Radio Liberty: Newsline, “Did Ukrainian Death Squads Commit Political Murders?,” <http://www.hri.org/news/balkans/rferl/2002/02-08-22.rferl.html#78> (last visited June 27, 2007).
[5305] Yevhen Zakharov, “Freedom of Information and Right to Privacy in Ukraine” 45-60 (2 ed. 2004).
[5306] U.S. Dep’t of State, “Country Reports on Human Rights Practices, Ukraine 2006,” supra.

[5307] "Ukrainian Parliament Sets up ad hoc Body to Investigate Wiretap," BBC Worldwide Monitoring, March 7, 2002.

[5308] ID code is a 14-digit number, first four digits are date of birth starting from 1.01.1900, next four digits are a personal number among people born the same day, the ninth digit is related to sex, and the tenth is the "control digit." For more information, see <http://www.khpg.org/index.php?id=944254613> (in Ukranian).

[5309] SZRU, “Main Tasks,” <http://www.fisu.gov.ua/cms/en/index/functions/2.html>.
[5310] Law No. 3160-IV (December 1, 2005) summary available in English at <http://www.welcometo.kiev.ua/pls/ili/ilic.frame_law_result2.show?p_arg_names=law_id&p_arg_values=1106>.
[5311] SZRU Chairman, “This year Ukrainian Foreign Intelligence became an independent state-supported agency,” SZRU News, December 28, 2005, available in English at <http://www.fisu.gov.ua/messages.php?lang=en&item=20&page=1>.
[5312] SZRU News, “The Head of the SZRU Mykola Malomuzh marks as positive the strengthening of the role of the Intelligence Service in the sphere of protection of national interests,” December 1, 2006 available in English at <http://www.fisu.gov.ua/messages.php?lang=en&item=33&page=1>.

[5313] “On Fight against Terrorism,” No. 638-IV Verkhovna Rada of Ukr. (2003) available at <http://www.welcometo.kiev.ua/pls/ili/ilic.frame_law_result2.show?p_arg_names=law_id&p_arg_values=715>.

[5314] Law No. 987-XII (April 23, 1991) English summary available at <http://www.welcometo.kiev.ua/pls/ili/ilic.frame_law_result2.show?p_arg_names=law_id&p_arg_values=305>.
[5315] “Joint Opinion on the Draft Law of Ukraine ‘On Freedom of Conscience and Religious Organisations’,” Opinion no. 072/2006, Eur. Comm’n For Democracy Through Law (2006) available at <http://www.legislationline.org/upload/lawreviews/63/42/e9be8e0732377acb156e3647b50a.pdf>.
[5316] Id.

[5317] PORA campaign official website <http://pora.org.ua/eng/>.
[5318] Press Release, Amnesty International, "Ukraine : Opposition activists arbitrarily detained, » October 10, 2004) available at <http://news.amnesty.org/index/ENGEUR500042004/>.
[5319]Taras Kuzio, “Ukrainian Leaders Crack Down on Youth Groups Ahead of Election,” The Jamestown Foundation, Eurasia Daily Monitor, Vol. 1, Issue 109, October 20, 2004 available at <http://www.jamestown.org/publications_details.php?volume_id=401&issue_id=3113&article_id=2368715>.
[5320] Id.

[5321] Human Rights in Ukraine, “Human Rights in Ukraine – 2005: IV. The Right to Privacy,” citing Yurydychny Visnyk Ukrainy, January 26, 2002 available at <http://www.khpg.org/en/index.php?id=1151854687>.

[5322] 5323 International Renaissance Foundation, “Public Hearings “On Interception of Telecommunications,” <http://www.irf.kiev.ua/en/programs/inf/inf/news/?doc:int=1161>.
[5324] Ukrainian Helsinki Human Rights Union, “Human Rights in Ukraine – 2004,” supra, at 92.

[5325] Yuri Radchenko, "Automatic Electronic Surveillance of the Citizens: Worldwide Reality and Ukrainian Prospects," Zerkalo Nedeli, Mirror-Weekly, No. 28 (352), (July 28 – August 3, 2001), available at <http://www.zn.kiev.ua/nn/show/352/31695/>.

[5326] See Andriy Pazyuk, “Information Policy of Ukraine: Access, Transparency, E-Governance,” (2003) available at <http://www.lda.brandenburg.de/sixcms/media.php/2232/08_pazyuk.pdf>.
[5327] The Statutory Order of the Cabinet of Ministers (CM) of January 20, 1997 (No 40).
[5328] Law No. 320/94, On State Register of Natural Persons – Payers of Taxes and Other Obligatory Payments, December 22, 1994 English summary available at <http://www.welcometo.kiev.ua/pls/ili/ilic.frame_law_result2.show?p_arg_names=law_id&p_arg_values=424>.
[5329] Id.
[5330] Id.
[5331] Law No. 16/98, The Basic Legislation of Ukraine on Obligatory State Social Insurance, January 14, 1998 .
[5332] The MIA Order No. 66, February 3, 1992 .
[5333] Statutory Order of the CM No. 794, June 4, 1998 .
[5334] The Statutory Order of CM No. 578, May 27, 1998.
[5335] The Order of Office of Public Prosecutor No. 22/835, December 21, 1995; The MIA Order No. 190, January 14, 1994.
[5336] 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.
[5337] Law No. 264/94, On Administrative Supervision over the Persons Released from the Places of Deprivation of Liberty, December 1, 1994 English summary available at <http://www.welcometo.kiev.ua/pls/ili/ilic.frame_law_result2.show?p_arg_names=law_id&p_arg_values=417>.
[5338] 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.
[5339] Law of September 19, 1992.
[5340] 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).

[5341] Andrew E. Kramer, “Embattled Ukrainian Leader Disbands Parliament,” N.Y. Times, April 3, 2007, at A6.
[5342] “World Briefing Europe: Ukraine: President Sets Sept. 20 For Elections,” N.Y. Times, June 6, 2007, at A9.
[5343] Kramer, supra.

[5344] See Kharkiv Group for Human Rights Protection, “Justice Achieved – But Where’s The Information?!,” KHPG.org, <http://www.khpg.org/en/index.php?id=1149723493>.
[5345] Kharkiv Human Rights Protection, “Secret Material Which The Regime Concealed Under Stamps ‘Not to Be Printed’ and ‘Not to Be Published’,” available at <http://www.khpg.org/en/index.php?id=1145710178>.

[5346] Joint Opinion on the Draft Law on the State Register of Voters of Ukraine, Opinion no. 338/2005, Eur. Comm’n For Democracy Through Law (2006) available at <http://www.legislationline.org/upload/lawreviews/42/ed/0269c4c215bf7039d00b71aab655.pdf>.
[5347] Id.

[5348] State Committee for Financial Monitoring of Ukraine Official website in English <http://www.sdfm.gov.ua/index.php?lang=en>.
[5349] SCFM of Ukraine Annual Report 2005 at 7, available in English at <http://www.sdfm.gov.ua/content/File/pdf/zvit%202005_english.pdf>.
[5350] Financial Action Task Force, “Methodologu for Assessing Compliance with the FATF 40 Recommendations and the FATF 9 Special Recommendations,” February 27, 2004, available at <http://www.fatf-gafi.org/dataoecd/14/53/38336949.pdf>.
[5351] SCFM of Ukraine Annual Report 2006, available in English at <http://www.sdfm.gov.ua/articles.php?cat_id=174&lang=en>.

[5352] Law No. 2847, On Amendment of Certain Legislative Acts of Ukraine on Precention of Legalization of the Proceeds From Crime and Terrorist Financing, June 19, 2007; see also State Committee For financial Monitoring of Ukraine, News, June 21, 2007, <http://www.sdfm.gov.ua/news.php?news_id=406&lang=en>.
[5353] Financial Action Task Force, “Methodologu for Assessing Compliance with the FATF 40 Recommendations and the FATF 9 Special Recommendations,” February 27, 2004, available at <http://www.fatf-gafi.org/dataoecd/14/53/38336949.pdf>.

[5354] 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.

[5355] Nasha Zhizn (Our Life) bulletin, No. 1(5), 2004, page 27, available at <http://www.network.org.ua> (in Ukrainian).

[5356] Panteleyenko v. Ukraine, App. No. 11901/02, Eur. Ct. H.R. (June 29, 2006)R. available at <http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Ukraine%20%7C%20Panteleyenko&sessionid=1072109&skin=hudoc-en>.

[5357] Volokhny v. Ukraine, 9 I.T.L Rep. 328 (2006).

[5358] See Poltoratskiy v Ukraine, 39 Eur. Ct. H.R. 43 (2004).

[5359] Official website of RUPOR available at <http://rupor.info/>.

[5360] Novoseletskiy v. Ukraine, 43 Eur. Ct. H.R.53 (2006) available at <http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Novoseletskiy&sessionid=1032329&skin=hudoc-en>.
[5361] Id.

[5362] See Kharkiv Group for Human Rights Protection, “Which Ukrainian Ministries Are Most Secretive?,” KHPG.org, <http://www.khpg.org/en/index.php?id=1180732399>.
[5363] Id.

[5364] U.S. Dep’t of State, Country Reports on Human Rights Practices, Ukraine 2006, supra.

[5365] Law No. 2657-XII, Statute on Information, adopted by Parliament on October 2, 1992.
[5366] The Constitutional Court of Ukraine ruled in October 1997 that Article 23 prohibited not only the collection of information, but also the storage, use and dissemination of confidential personal information without the individual's consent. Verdict of the Constitutional Court of Ukraine concerning the case of the official treatment of Articles 3, 23, 31, 47, 48 of the Law of Ukraine on Information and Article 12 of the Law on the Prosecutor's Office (case of K. G. Ustimenko), October 30, 1997.

[5367] EDRi-gram No. 2.10, May 19, 2004, available at <http://www.edri.org/cgi-bin/index?id=000100000150>.

[5368] Eur. Counsult. Ass., “Archives 2005 on changes concerning treaties,” <http://conventions.coe.int/Treaty/EN/Archives/News/V3News_2005.asp>.
[5369] Signed November 9, 1995; ratified September 11, 1997; entered into force September 11, 1997.
[5370] Law No. 2824-IV, On the Ratification of the Convention on Cybercrime, Verkhovna Rada of Ukr. (2005) available at <http://www.welcometo.kiev.ua/pls/ili/ilic.frame_law_result2.show?p_arg_names=law_id&p_arg_values=1096>.
[5371] Background Information, European Parliament, (January 26, 2005) <http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+PRESS+BI-20050126-1+0+DOC+XML+V0//EN#SECTION1>.
[5372] Council of Europe, “Treaties signed and ratified or having been the subject of accession as of 25/6/2007,” <http://conventions.coe.int/Treaty/Commun/ListeTraites.asp?PO=U&MA=999&SI=2&DF=&CM=3&CL=ENG>.