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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF UKRAINE

of March 28, 2008 No. 2

About some questions of application by courts of Ukraine of the legislation when giving permissions to temporary restriction of separate constitutional rights and freedoms of man and citizen during implementation of operational and detective activities, inquiry and pretrial investigation

(as of June 4, 2010)

For the purpose of ensuring compliance with constitutional rights and freedoms of man and citizen, the correct and identical application of the legislation by courts which regulates procedure for provision of permission to penetration into housing or in other ownership of person, removal of information from communication channels, control of correspondence, telephone conversations, cable and other correspondence, use of other technical means of receipt of information connected with restriction of constitutional rights of citizens the Plenum of the Supreme Court of Ukraine decides to make to courts such explanations:

1. According to Art. 64 of the Constitution of Ukraine constitutional rights and freedom of man and citizen cannot be limited, except the cases provided by the Constitution of Ukraine.

2. According to Items 7, 9 h 1, the p. 2 of Art. 8 of the Law of Ukraine "About operational and detective activities", item 6 of the p. 2 of Art. 7 of the Law of Ukraine "About counterintelligence activities", Art. 15 of the Law of Ukraine "About organization-legal bases of fight against organized crime" on the motivated judgment can be applied such restrictions of constitutional rights and freedoms of man and citizen provided by Articles 30, of 31, 32 Constitutions of Ukraine:

secret penetration into housing or into other ownership of person;

removal of information from communication channels;

control of correspondence, telephone conversations, cable and other correspondence;

use of other technical means of receipt of information.

The Code of Criminal Procedure provides possibility of application of such restrictions of the specified constitutional rights and freedoms of man and citizen:

Restriction of the specified constitutional rights and freedoms of man and citizen during operational and detective activities, inquiry and pretrial investigation is allowed only on the motivated judgment (except the case provided by the p. 3 of Art. 30 of the Constitution of Ukraine) and have exceptional and temporary nature. They are applied to initiation of legal proceedings for the purpose of prevention of heavy or especially serious crime if in a different way it is impossible to obtain information. Provision of permission to holding operational and detective actions after initiation of legal proceedings does not depend on weight of crime.

In the cases provided by item 4 p.1 Art. 8 of the Law of Ukraine "About operational and detective activities", item 5 of the p. 2 of Art. 7 of the Law of Ukraine "About counterintelligence activities" documents and data which characterize activities of the companies, organizations, organizations, and also method of life of the individuals suspected of preparation or crime execution, source and the sizes of their income can be by a court decision requested.

3. In case of the solution of question of removal of information from communication channels it is necessary to consider provisions of Art. 1 of the Law of Ukraine of November 18, 2003 N 1280-IV "About telecommunications" which determines the corresponding terms which are applied in the specified Law.

Removal of information consists of communication channels in application of technical equipment which gives opportunity to listen, fix and reproduce information which was transferred by this communication channel. Such information can include data both on mutually connection of telecommunication networks, and concerning contents of information which was transferred by communication channel.

The list of types of correspondence which it can be seized the Code of Criminal Procedure determined by the p. 2 of Art. 187, is not exhaustive therefore courts need to consider also provisions of Art. 1 of the Law of Ukraine of October 4, 2001 N 2759-III "About mail service".

Control of correspondence, cable and other correspondence consists in survey of mailings, their copying. It is necessary to understand as control of telephone conversations not only their listening and fixation, but also receipt of information on telephone conversations which took place, concerning subscribers of talk, time and duration of talk.

It is necessary to understand such means which give opportunity secretly to fix talk, actions, situation out of communication channels as other technical means of receipt of information.

Coordination with the prosecutor of representation of the head of operational division or its deputy about secret penetration into housing or into other ownership of person, removal of information from communication channels, control of correspondence, telephone conversations, cable and other correspondence, the law (the p. 2 of Art. 8 of the Law of Ukraine "About operational and detective activities") does not require use of other technical means of receipt of information in all other cases.

In case of receipt in production of court of representation which shall be approved with the prosecutor, but with it it is not approved, the court shall refuse its consideration about what the motivated decree is issued. Such refusal does not interfere with repeated appeal to the court on the same question after coordination of representation with the prosecutor.

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