Violation of the right to privacy in Ukraine

In the era of globalization and the development of the information society the classical right to privacy is becoming increasingly important, and its violation takes new forms and manifestations. Unfortunately, in Ukraine the importance of this right for the life of every normal person is often neglected which runs contrary to the world trends and European standards.

In addition, the fact that the above-mentioned violation, as a rule, is not isolated, and leads to a number of violations of other human rights and freedoms is often concealed. Privacy is guaranteed both by Ukrainian legislation and international legal instruments, which are recognized as binding by all democratic and civilized nations.
In particular, Article 32 of the Constitution 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 organisations.

Everyone is guaranteed judicial protection of the right to rectify incorrect information about himself or herself and members of his or her family, and 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.

In addition, the Basic Law guarantees the privacy of mail, telephone conversations, telegraph and other correspondence (Article 31). 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.

Thus, the provisions of the Constitution of Ukraine, which are directly applicable, provide broad interpretation of the right to privacy. As in most states, this right is not absolute, but its limitations are clearly defined and can not be changed to the detriment of the person.

Privacy in International Law

Similar provisions are provided by the international law. For example, Article 12 of the Universal Declaration of Human Rights of 1948 stipulates that no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation.

Everyone has the right to the protection of the law against such interference or attacks.

The Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 determines that everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others (Article 8).

The International Covenant on Civil and Political Rights of 1966 establishes that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation (Paragraph 1 Article 17).

In particular, Parliamentary Assembly of the Council of Europe in its resolution 1165 notes the importance of every person’s right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since they are of equal value (Paragraph 11).

On this basis the right to privacy secured in Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 shall protect the privacy of persons from any interference by the government or any similar actions by other individuals or institutions, the media included (Paragraph 12).

Privacy in the Ukrainian law

It is important to note the fact that the official interpretation of the provisions of Article 32 of the Constitution of Ukraine is articulated in the Ruling of the Constitutional Court of Ukraine No 2-рп/ 2012 of 20 January 2012.

First of all, the Constitutional Court of Ukraine held that it is impossible to determine all kinds of behavior of an individual in the areas of personal and family life, as personal and family rights are a part of the natural rights, which are not exhaustive, and implemented in a diverse and dynamic relations of property and non-property nature, circumstances, events, relationships, etc

The right to private and family life, according to the court is a fundamental value essential for the well-being of a person in a democratic society, and is regarded as the right of an individual to autonomous existence independent of the state, local governments , legal entities and other individuals. Thus, this head-note proves the importance of the right to privacy for every person and emphasizes the dangers that can be caused by its breach.

In its ruling the Constitutional Court stresses special attention to the right to privacy of the person holding the post related to the performance of the
functions of the governmental agency or a body of local self-governmentand members of his or her family.

In particular, the Court aknowledged that the status of these persons may somewhat restrict their right to privacy, and referred to the Resolution 1165 of the Parliamentary Assembly of the Council of Europe i of 25 December 2008 (hereinafter – Resolution 1165) providing that public figures must recognise that the position they occupy in society automatically entails increased pressure on their privacy (paragraph 6).

At the same time, the Court noted that a systematic analysis of provisions stated in paragraphs 1 and 2 of Article 24, paragraph 1 of Article 32 of the Constitution of Ukraine gives grounds for the Constitutional Court of Ukraine to believe that the right for inviolability of personal and family life is guaranteed for each person regardless of their gender, political, property, social, language or other attributes, as well as the status of a public person, in particular, public servant, state or public figure that plays a certain role in political, economic, social, cultural or other sphere of state and public life.

Analyzing the question of dissemination of information about the family life of the person holding the post related to the performance of the functions of the governmental agency or a body of local self-government, the Constitutional Court of Ukraine took into account that such information usually regards not only the person concerned, but also the others, in particular members of his or her family whom the Constitution protects from intrusion into their private and family life, except in cases established by law. And that is why the dissemination of such information is ingompatible with the legal framework.

The Constitutional Court of Ukraine also put the clause on inadmissibility of constitutional rights violation of the family members of officials in the Ruling #21-pп/ 2010 of 6 October 2010.

It is import to note the list of information which the Court regards as confidential and hence it can not be freely disseminated, collected, stored, etc. Such information includes, in particular, the data on ethnicity, education, marital status, religious beliefs, health status and the address, date and place of birth.

In addition to the abovementioned, the Constitutional Court of Ukraine in the first sub-paragraph of paragraph 1 of the operative part of Ruling #5-зп of 30 October 1997 qualifies property status and other personal data as confidential information.

Thus, the Constitutional Court of Ukraine believes that the list of personal data recognized as confidential is not exhaustive.

The concept of personal data in Ukraine

The perception of the concept of personal data in Ukraine is also worth noting. The Law of Ukraine “On Protection of Personal Information” determined that the personal data shall mean information or aggregate information about a natural person who is identified or may be identified.

The Law may prohibit assigning personal data to certain categories of citizens or exhaustive list of such categories as information with restricted access. The personal data of a natural person who claims for or holds an elective post or position of a state official of
the first category shall not be assigned to information with restricted access, except of information assigned as such pursuant to the law.

That means that a person itself may identify certain information as personal and restrictions on such a possibility are clearly defined.

In connection with numerous requests of citizens on the practical application of certain provisions of the Law of Ukraine “On Protection of Personal Information” The Ministry of Justice has provided an adequate clarification containing a number of important points.

In particular, it was confirmed that the Ukrainian legislation had not established and could not establish the clear list of information about an individual which is considered personal data for the purposes of application of the provisions of the Law to the different situations that may arise in the future due to changes in technology, social, economic and other spheres of public life.

Thus, a person can interpret the concept of personal data broadly.

The right to privacy in the interpretation of the ECHR

It should also be borne in mind that the right to privacy is broadly interpreted by the European Court of Human Rights while the possibility to restrict it is, on the contrary, narrowed.

For example, the ECHR noted that the storage of data relating to private life of a person lies within the scope of the application of paragraph 1 of Article 8 (Judgment on case of Leander v. Sweden of 26 March 1987). In this regard, the Court notes that the concept of private life can not be interpreted restrictively.

In particular, respect for private life comprised to a certain degree the right to establish and develop relationships with others. There is no reason of principle why the notion of private life should be taken to exclude professional or business activities (Judgment on the case of Niemietz v.
Germany of 16 December 1992).

In general, the aforesaid norms of the legislation and judicial practice provide us with an opportunity to make the following conclusions:

  • Confidentiality is essential for the development of every human being and is necessary for the normal life of every person.
  • The right to privacy is guaranteed both by Ukrainian and international laws.
  • Restrictions on the right to privacy may only take place in exceptional cases and shall meet three criteria: legality, proper purpose and necessity in a democratic state.
  • Restrictions on the right to privacy of a person may not impair the respective right of his or her family members or third parties.
  • The concept of protected information such as personal data, is broad enough and should be interpreted with a view to the interests of the individual.
  • Although persons holding public governmental posts are somewhat limited in their right to privacy, there shall be no discrimination in this area. In addition, the concept of private life may cover the activities of a professional or business nature.

Restrictions on the right to privacy in Ukraine

At the same time, now in Ukraine right to personal privacy is often limited. This is often done for the legitimate purpose of investigation or prevention of criminal acts.

However, the overly broad application of such restrictions violates human rights. Such actions are illegal, which is confirmed by the practice of the ECHR.

For example, in the judgment Roemen and Schmit v. Luxembourg 2003. the Court considered that the search carried out at the applicant’s office and the seizure of the letter had amounted to interference with her right to respect for her private life. That interferencehad pursued the “legitimate aim” of maintaining public order and preventing crime and had been in accordance with Articles 65 and 66 of the Code of Criminal Procedure of Luxemburg, which dealt with searches and seizures in general, and also with section 35(3) of the Law of 10 August 1991 which laid down the procedure for carrying out searches and/or seizures at a lawyer’s office. The Court held that there had been a violation of Article 8 of the Convention of 1950.

And Malone v. The United Kingdom dealt with a breach of Article 8 of the Convention on the grounds that the interception of the applicant’s calls (during prosecution) and telephone metering (saving the dialed numbers) were not prescribed by law.

Unfortunately, in Ukraine the modern broad interpretation of the right to privacy is totally ignored.

An illustration for this fact is the situation around photographing in the parliament and dissemination of personal correspondence of People’s Deputies. It is obvious that journalists do not have the right to both read and disseminate such information, as the vast ammount of such data is not associated with public service activity of parlamentarians and is considered their confidential information.

Moreover, the distribution of pictures of such correspondence often harms third people communicating with lawmakers who are not holding public posts (eg, journalists, political analysts, as well as friends or loved ones of a public figure).

The fact that publication of such photos would help to defend Ukraine’s national interests or protect human rights can be used as a kind of a justification for the issue. But in this case the problem of proportionality arises: will the public benefit from such actions outweight the harm inflicted due to violation of the right to privacy?

However, as a rule, such images are disseminated either to discredit the MP or to fuel the hype. Therefore, it can be concluded that the existence of web-portals like Deputaty.FotoLiks (Deputies. PhotoLeaks) is illegal and violates human rights.

Moreover, the publication of the intimate correspondence of parliamentarians can negatively affect their political career. An example is the scandal related to theo personal correspondence of people’s deputy Andrii Miroshnyk, who gave up his parliamentary mandate after the leakage.

Thus, the person is discredited on grounds that have no relation to his professional activities.

Another illustrative example is the case when the co-chairman of the parliamentary group Vidrodzhennya Viktor Bondar exchanged messages with the editor-in-chief of the web-portal “Livyi Bereg” Sonia Koshkina at his workplace, which was recorded and distributed. The only consequence and purpose behind such actions was to spur up rumors for the benefit of the respective media.

That means that such a restriction of the right to privacy did not have the proper purpose and was neither prescribed by law nor necessary in a democratic society. And that is why it is unlawful.

We need to mention that in accordance with the Civil Code of Ukraine nonproperty rights shall be closely connected with the person. A natural person
cannot abandon personal non-property rights, and cannot be deprived of them.

The Civil Code qualifies the right to privacy as a personal non-property righ providing social life of a natural person. In particular, pursuant to Article 301 of the Civil Code a natural person, on its own, shall determine his/her personal privacy and the possibility to familiarize other persons with it. A natural person shall be entitled to keep secret the circumstances of his/her personal privacy.

Other persons may disclose circumstances of personal privacy of a natural person only in case they contain indications of an offence confirmed by the court decision as well as the natural person’s consent. Under Article 306, a natural person shall have the right to the privacy of correspondence, cables, telephone conversations, telegraphic messages and other kinds of correspondence.

As appropriate, the abovementioned situation with the publication of correspondence is a violation of personal non-property rights of parliamentarians and third persons.

Protecting the interests of individual

Another issue is the protection of the interests of a person being photographed, filmed, televised or videotaped. It is obvious that illegal taping is a gross violation of the aforesaid personal privacy rights.

In addition, in accordance with Article 307 of the Civil Code a natural person may be photographed, filmed, televised or videotaped only by his/her consent. A natural person can be photographed, filmed, televised or videotaped including secretly without his/her consent only in cases stipulated by the law.

One of such cases is legal interception of a person’s calls, id est covert investigative actions. However, such actions shall be taken exclusively within the Code of Criminal Procedure (Chapter 21).

In particular, in accordance with Article 246 covert investigative (detective) actions shall only be possible if information about the crime and the person who committed that crime cannot be obtained by other means.

The decision to implement covert investigation (detective) action shall be made by investigator or prosecutor, and in the cases stipulated by the Code, by the investigating magistrate at the request of the prosecutor or at the request of the investigator in agreement with the prosecutor.

The investigator is obliged with the duty to inform the about the decision taken with regard to implement certain covert investigation (detective) activities and of its results.

The prosecutor has the right to terminate or suspend the further implementation of covert investigation (detective) activities. Covert investigation is conducted by investigator carrying out a pre-trial investigation, or – upon the request of the investigator – by authorized authorities such as internal affairs agencies, security agencies, the National Anti-Corruption Bureau of Ukraine, the State Bureau of Investigation, the bodies exercising control over compliance with tax and customs legislation, the State Penitentiary Service of Ukraine and the State Border Service of Ukraine.

By the decision of investigator or prosecutor third parties may be invited to participate in the conduct of covert investigative action. In accordance with Article 252 the recording of the course and results of covert investigative (detective) actions should comply with the general rules of the recording of criminal proceedings envisaged by this Code.

In view of the results of such a covert investigative (detective) action one draws up protocols to be, if necessary, attached by annexes. Information about the persons who carried out covert investigative (detective) actions or were involved in the implementation of such actions may be stated as classified in the manner prescribed by law for safety reasons.

In addition to that, according to Article 253, the person whose constitutional rights have been temporarily restricted during the covert investigation action, as well as the defendant and his/her defense counsel shall be notified in writing by the prosecutor or by authorized investigator of such a restriction.

The exact time for sending such notification shall be determined taking into account the presence of threats to the pre-trial investigation goals, public safety or the life and health of persons involved in the conduct of covert investigative action. Such notification on the fact and the results of the covert investigative actions shall be carried out within twelve months from the date of termination of such actions, but no later that the date of indictment.

It should be emphasized that the only information obtained in compliance with the above provisions may be used as evidence. Any other action regarding the interception of communication channels may constitute a criminal offense.

Storage and use of information

Another issue is the storage and use of information obtained in the course of covert investigative actions, in particular tapping. This issue is regulated primarily by Articles 254, 255 and 257 of the Code of Criminal Procedure.

Important paragraphs are as following:

  • Information on the facts and methods of the covert investigative (detective) activities, persons involved in the implementation of investigation, as well as information obtained in the conduct of investigation is not subject to disclosure. If the protocols to covert investigative (detective) activities contain information on the private (personal or family) life of other persons, the defender, and other persons who have the right to receive investigation materials shall be informed about the criminal liability for the disclosure of information about other people.
  • The information, items and documents obtained as a result of the covert investigative (detective) actions that the prosecutor has not recognized necessary for further proceeding of pre-trial investigation shall be destroyed without delay on the basis of such decision.
  • If the covert investigation found facts of a criminal offense not investigated in the given criminal proceedings the resulting information can be used in other criminal proceeding only by the decision of investigating magistrate, which shall be made at the request of prosecutor. Transfer of information obtained in the conduct of covert investigative activities shall be carried out with the involvement of prosecutor.

In addition, pursuant to Article 259 of the Criminal Procedure Code of Ukraine, if prosecutor has an ontention to use information obtained as a result of interference with private communications, or some fragment thereof, as an evidence at trial he/she is obliged to ensure the safety of all of the information or instruct the investigator to do so.

In general, we can draw the following conclusions in regard to the possibility of lawful tapping:

  • Tapping shall take place in accordance with established procedure and legitimate purpose (not for personal use);
  • Tapping materials shall be stored securely and may not be transferred to third persons;
  • Materials not related to the case shall be destroyed with no delay, unless they relate to other criminal proceedings.

Thus, any law enforcement official who uses tapping devices for personal purposes (in particular for spying on third persons), must bear responsibility as set forth by law.

In addition, storage of materials obtained in the conduct of investigation containing personal information ( lifestyle, relationships, personal beliefs) for the purpose of future publication or exerting pressure on the person is illegal if such information becomes public.

Manipulation with personal information

However, in Ukraine materials received in the past are often used with the intention to influence well-known politicians (let alone numerous cases with Oleg Lyashko).

What is more, phone-tapping regularly turns into a private business. For example, Lieutenant Colonel of the Ministry of Internal Affairs in Kiev region made his living from spy business providing services of tapping and surveiling businessmen.

It transpires from the file that the Prosecutor’s Office in Kyiv investigates the case on suspicion of the former chief of the 5th Department of Operations Service of the Main Directorate of the Ministry of Interior in the Kiev region of having committed an offense under Part. 3 of Article 368 of the Criminal Code of Ukraine. The investigation established that on 18 July 2015 Lieutenant Colonel offerd his friend services of covert collecting and processing of certain persons’ private data for monetary compensation.

The list of services offered by a lieutenant colonel, included:

– Intercepting information from the transport telecommunication networks for three months (information on dials from a number of mobile operators) – from $600 per room;

– Tapping personal communication on the indicated mobile numbers – from $2,800 per night;

– Audio and video control of a person (“surveillance”) – from $ 50 per hour.

This case is positive, because here we are talking about the criminal prosecution of the said person. However, this case is more a part of the systemic problems that can not be solved in Ukraine, especially with authorities taking advantage of it.

Unfortunately, illegal tapping or unfounded acussations of such acts often become instruments for achieving political goals. For example, in December Mikheil Saakashvili claimed that his phones are tapped by law enforcement agencies with a purpose of compromising him. However, politician gave no evidence and that is why it is difficult to legally qualify the situation.

Prior to that intercepted talks of the Georgian ex-president Mikheil Saakashvili published on web sites “Ukrainian WikiLeaks» and «Ukrainian revolution” talk of ex-Georgian President resulted in another criminal proceeding at his home country. The State Security Service of Georgia has accused him of attempting a coup d’etat. The politician said then that his telephone conversations “were recorded and deliberately edited by Putin’s agents and being published in this form on Russian sites”. He noted that “it clearly has the character of another special operation“.

In November 2014 Sergii Leshchenko from Petro Poroshenko Block said that Arsen Avakov and Mykola Martynenko from People’s Front faction were behind the organization of spying on him.

I feel like I’m under illegal surveillance by law enforcement agencies, in particular phone-tapping. They are collecting information about me in order to identify the sources of my information and further discredit me for considerations of the future of the campaign they conspired.“- told Leshchenko in his interview for Deutsche Welle.

Interior Minister Arsen Avakov, in his turn, said that the information about the people’s deputy alleged tapping by the Ministry of Interior is false.

Arsen Avakov, in particular, threatened to sue Leshchenko for false alegations of phone- tapping. At the same time, none of the parties provided adequate evidence of its position, so all such statements are a mere political pressure.

In November of 2015 Oleg Lyashko during a session of Anti-Corruption Committee said that he became aware of the facts of illegal phone-tapping of people’s deputies of Ukraine, including his mobile phone and deputies from the Radical Party faction.

According to Lyashko, in the proceeding of the Mosiychuk case in court information on sanctions to intercept mobile phone conversations surfaced.

The names are not specified in the court’s materials, but two of my mobile numbers were indicated.

However, the Security Service and Interior Ministry refuted that information. In particular, the Security Service and the Ministry of Internal Affairs sent an official reply to the Committee on Corruption Prevention and Counteraction, which said:

Following the review of appeals concerning illegal conduct of investigative and search operations by the operating units of the Security Service of Ukraine, the Ministry of Internal Affairs of Ukraine and the State Fiscal Service such fact have not been found. No request for the permission to conduct phone-tapping by the officers of the respective department of the Prosecutor General was aproved. Information is provided and signed by the Head of the Security Service of Ukraine Vasyl Hrytsak.

At the same time, if such things happen with influential politicians, it is clear that average Ukrainians can not rely on adequate protection of their own privacy. Law enforcement agencies in pursuit of their own interests illegally use surveillance means violating the rights of Ukrainians while top officials do not promote the fact that this practice is unacceptable.

Pressure on communication compnaies

Another painful moment is the assistance that telephone companies and providers are offering for the purpose of illegal phone-tapping. In this case, they are being pressured by the authorities and having financial losses and suffering reputation risks, they can’t but become an accomplice to this crime. Otherwise, they risk losing their business.

Ukrainian Helsinki Human Rights Union in its report of 2014 also noted the potential pressure on operators and service providers: interception of communication channels in connection with the occupation of the Crimea and ATO has become a special problem.

In early April the Security Service has detected non-standard commands from the Russian switches in the Crimean network. The former chairman of the National Commission for the State Regulation of Communications and Informatization Petro Yatsuk claimed that it supposedly could enable Russia to obtain information on the location of Ukrainian mobile subscribers, mobile numbers of their interlocutors and even transfer calls via the Russian Federation. He said he had at the disposal of his department the evidence of the use of MTS facilities for phone-tapping for the benefit of Russian security services.

Accordingly the Commission qualified this as a violation of licensing conditions by the mobile operator intending to later decide on a repeated violation which could be a ground for suspending company’s license.

The new board of the Commission (unlike the suddenly dismissed old one) gave the company time till December to resolve all issues and protect the network fromexternal interference. MTS challenged these allegations in court.

On 10 July 2014 on the air of 5 TV Channel the representative of Udar faction Sergii Kaplin said that all phones of Ukrainian soldiers are being tapped by the respective Russian agencies. He claimed that MTS and Kyivstar numbers are fully tapped by the Kremlin and all the soldiers’ phones are being tapped by respective services, referring to the source from official bodies of the security sector. At the same time, MTS Ukraine and Kyivstar denied the possibility of such a situation.

Now it is impossible to establish whether the above statements are true or it is an attempt to exert pressure on the management of the said mobile operators.

Another example is the statement by Denis Polishchuk, whom the investigation suspects of the murder of journalist Oles Buzyna. He said:

The remand center also uses tapping for “contraction”. Let me note that while it is totally legal in Temporary Detention Center, in remand center it can be qualified as cover to investigation. I spoke to people who confirmed the fact of tapping in my ward. They were at the same ward and during the session of the court they listened “ward conversations” arranged for the investigation. When I first got out on bail, I noticed such “arrangements”: I saw like walking “units” (who were digging in a garbage near my house and after a couple of hours they could be seen near the building of the Appealate Court), and “autounits”.

If this statement is true, this is a direct violation of human rights, as well as a criminal offense.

Yet another example is the situation with the criminal proceedings against the former prosecutor of Poltava region Yan Strelyuk and the chief of Poltava Regional Police Office Oleg Beha for illegal phone-tapping of the officers of Counter-corruption and Organized Crime Investigation Department of the Security Service of Ukraine in the Poltava region and officers of the Ministry of the Inferior internal security, which was circulated by the media.

According to the web site “Antikor” this illegal tapping conducted by the regional heads of the police and prosecution based on false allegations was aimed at monitoring the actions of the Security Service officer Roman Chervinsky, who was involved in the investigation of high-profile cases of bribery and corruption.

Thus, representatives of the law enforcement agencies who must protect the privacy themselves violated this constitutional right.

Listening to individuals

Illegal taping is a regular practice for certain individuals.

For example, in July 2015 the head of the Security Service of Ukraibe Vasyl Hrytsak during the president’s meeting with the representatives of law enforcement agencies of Dnipropetrovsk region reported that Security Service had seized a set of equipment for illegal wiretapping in Kyiv.

According to him, the complex for interception of data using mobile communication was discovered as a result of operational information received with the assistance from the Prosecutor General’s Office. The detected equipment сould be used for simultaneous tapping of up to 128 subscribers, its cost amounted to $ 200 000 and it could be transported in a suitcase.

According to the information from the Security Service this equipment was not officially registered and was illegally manufactured at one of the Ukrainian factories having the appropriate license.

That means that illegal tapping has become a commonplace for Ukraine.

And the most striking example of this situation is the so-called “Melnichenko tape”,since there are doubts whether they can be used as evidence and violate human rights. The Court shall decide whether they are legally obtained, which is the main problem in this case.

Advocates of the argument that these tapes can be considered evidence refer to the practice of the ECHR – namely, the cases Khan v United Kingdom and Schenk v Switzerland.

ECHR expressed the opinion that even if the recordings were obtained in violation of the law, if there is other evidence altogether the tape can be used in court as evidence and that was done.

However, in this case the concept of the rule of law according to the Ukrainian legislation is neglected. That is why human rights activists have dissenting views regarding the case. In particular, in 2012 the then Chairman of the Board of the Ukrainian Helsinki Human Rights Union Yevhen Zakharov said that according to the law Melnichenko tapes can not be used as evidence against the ex-prime minister Yulia Tymoshenko.

And in 2011 a constitutional expert of the Kharkiv Human Rights Group Vsevolod Rechitsky stated that in its ruling the Constitutional Court held that the prosecution can not be based on data obtained illegally by persons who are not authorized to conduct investigation and this undermines the possibility of using the Melnychenko tapes in the case of ex-president Leonid Kuchma. He noted that this is a worldwide practice.

For example, in the US, even the obvious evidence can be ignored if it was obtained illegally. The expert also gave the following important clarification:

This is a classic demand. It is as follows: it is better to set free those criminals whose guilt wasn’t proven than to sentence an innocent man.

Thus, illegal tapping and violation of the right to privacy have become systemic problems in Ukraine.

Such practice is unacceptable for the European democratic state. Furthermore, all citizens need to understand that if they do not want their rights violated, they must respect the right to privacy of the others.19

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