Introduction of independent control over the collection of information from communication channels by state agencies (Appeal of the Ukrainian Helsinki Union of human rights)
During the past six months scandals have arisen systematically in Ukraine concerning the collection of information from communication channels (in particular, wiretapping of phones, cell phones, control over e-mail and Internet-communications, etc.) of the well-known citizens. Information about the illegal wiretapping of top state officials is made public almost every week. We want to remind that the collection of information from communication channels as one of methods of the ODA may be applied only in the cases concerned with grave and especially grave crimes.
The considerable part of these messages refers to the past, in particular, the events connected with the election of new President of Ukraine. However, we are sure that it is impossible to achieve successes in this sphere and to avoid illegal wiretapping of businessmen, political and public figures only replacing people on certain posts, but not changing the entire system of wiretapping in our country.
System changes in the sphere of the operative-detective activities are necessary. For this the Ukrainian legislation must be changed first of all. In compliance with the practice of the European Court of human rights and positive practice of the European democratic countries, the following changes should be introduced:
1. Collection of information from communication channels (including wiretapping) must be an extreme measure (about 40 thousand sanctions for collection of information from communication channels have been issued in Ukraine during past years, which is about 40 times more than in the USA; besides, the obtained information is used very rarely as a proof in court).
2. Collection of information from communication channels must be realized within the restricted term determined by court sanction (now the maximal term is not stipulated by law, that is a person may be wiretapped during the unlimited term).
3. The law-enforcing organ, which has realized collection of information from communication channels, must, within 10 days after the end of tapping, inform the person, which has underwent these actions, in order to give this person the opportunity to complain to court against the actions of law-enforcers (today the majority of people never know that their communications are controlled, which violates their right for privacy).
4. It is necessary to introduce independent control over the conduction of electronic tracking. The control should be realized by the ombudsperson or other power organ, but not a law-enforcing one.
5. It is necessary to establish the annual reporting of law-enforcing organs on application of the ODA, which violate human rights (collection of information from communication channels, secret searches). These reports must contain the total number of issued sanctions, their systematization by the grounds and analysis of the efficiency of these measures.
We reckon that without introduction of these legislative changes the ungrounded wiretapping will continue. At least, this is proved by the experience of democratic countries, which solved this important problem many years ago.
This question can be solved by adoption of the draft of Law No. 4042-1 of 2 June 2005 “On interception of telecommunications” presented by peoples deputies of Ukraine V. Lebedivskiy, O. Edyniy, O. Klimpush and A. Shkil. Yet, the adoption of this draft is actively blocked by law-enforcing organs, in particular, the USS. Besides, it is also necessary to introduce changes to the Criminal-Procedural Code of Ukraine, the Law of Ukraine “On the ODA” and a number of other laws of Ukraine. The political will for the adoption of these changes has not existed until now. Yet, it seems that, if all sides of the political process suffer from the ungrounded control of their communications (including wiretapping of phones and cell phones, revision of electronic mail, etc.), they should stop this shameful practice.
Only creation of the system of independent control over wiretapping of phones and other forms of electronic tracking can save Ukraine from the disgraceful practice of meddling in private life of citizens and illegal control of telecommunications of businessmen, public and political figures.
Evhen Zakharov, Head of the Board
Volodymir Yavorskiy, Program Manager
21 July 2005