Undoubtedly, we should be deeply concerned with the facts reported by citizens in social networks that law enforcement officers and military personnel inspected contents of mobile phones during January events, and at the same time we should welcome the official statement of the Ministry of Internal Affairs of the Republic of Kazakhstan on the unlawfulness of such inspections of mobile phones of citizens without consent of their owners or judicial orders.
Any actions aimed at reviewing mobile phone contents, including photo- and video materials, constitute direct interference into private life of citizens.
The Law “On State of Emergency” allows establishing certain restrictions of civil rights and freedoms, including those on privacy, and yet, as described in article 17
thereof, such restrictions shall be imposed within the limits caused by the “circumstances that give rise to the introduction of the state of emergency
” and “shall not contradict international treaties on human rights
”. That said, the emergency state legislation sets a “priority” of the international law when introducing measures and temporary restrictions applied during a state of emergency.
The law strictly regulates both major and additional measures and temporary restrictions of personal rights of citizens to be applied during a state of emergency. According to the emergency state legislation, such measures, inter alia, include “body search and inspection of personal belongings and transport vehicles”.
In its turn, if the above-said measure to “inspect personal belongings” is misinterpreted and misapplied in respect of mobile phone contents, it leads to the violation of the right to personal secrecy and correspondence privacy, and also invalidates the constitutional right of citizens to the inviolability of their private life.
Thus, under conditions of a state of emergency, fixation of evidences as well as identification of potential criminals by reviewing contents of mobile phones may be conducted strictly within the framework of the criminal proceedings and in respect of the involved persons only.