Rule of Law not of the Cabinet of Ministers

The guarantee of privacy of all correspondence and communications is clearly stipulated in Article 31 of Ukraine’s Constitution which reads: “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”.

All restrictions must thus be stipulated at the level of legislation. Yet at the present time, instead of a law passed by parliament, we have a Cabinet of Ministers Resolution No. 1169 from 26.09.2007 which approved “Procedure for obtaining a court order to carry out measures which temporarily restrict human rights and the use of the information obtained”.

The Ukrainian Helsinki Human Rights Union (UHHRU) lodged an application with the Kyiv Administrative Court of Appeal. It referred to the Constitution and to Article 8 of the European Convention on Human Rights and asked that the Cabinet of Ministers Resolution be declared unlawful and revoked.
The court turned this application down, however it did issue a separate decision which reminds the Cabinet of Ministers that the Resolution does not contain the safeguards of civil rights required by the Convention and European Court of Human Rights case law. It does not, for example, prohibit the passing of the protocol and information gathered to other State bodies.

The separate decision informs the Prime Minister and her Cabinet of the need to draw up and submit to the Verkhovna Rada a draft law on the Procedure for obtaining a court order to carry out measures which temporarily restrict human rights. It stresses that this law must be line with the Convention and case law of the European Court of Human Rights. It in fact suggests that those drawing up the law make use of UHHRU recommendations.

The Cabinet of Ministers must now inform the court of measures taken within the month.

The case was supported by the UHHRU Strategic Litigations Fund, and was represented in court by Viacheslav Yakubenko who commented on the judgment.
In his view, the court could clearly not have simply rejected the civil claim and declared the existing procedure for obtaining interception warrants acceptable. The procedure approved by Resolution No. 1169 goes against a number of precedent judgments from the European Court of Human Rights [ECHR], for example, Klass v. Germny (6 September 1978), Huvig v. France (24 April 1990) and Kruslin v. France (24 April 1990). Any ECHR judgments are legislatively defined as sources of law for Ukrainian courts.
The judges doubtless understand themselves that the present procedure could be used against them. There is a campaign on to stamp out corruption among judges, yet often little documented evidence. The need to ensure that any interception of communications is done legally must therefore seem acute to the judiciary also.

On the other hand, the court probably feared the opposite extreme, that they would declare the Resolution unlawful and leave no regulation of the subject. They therefore found a way out in formally warning the Cabinet of Ministers that the Resolution does not comply with the necessary domestic and international standards.

Viacheslav Yakubenko finds it difficult to feel optimistic that the Cabinet of Ministers will heed this warning, since Presidential Decree No. 1556 from 26.09.2007 did effectively the same thing. He assumes it will be necessary to take them to court again.

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