Needed documents, if any, are not accessible
L. Andrusenko turned to the public historical-educational and human rights protecting organization ‘Donetsk Memorial with the complaint on the violation of his citizens rights.
According to his complaint, in November 1997 the trade union brought a suit against the administration of the mine ‘Pivdenodonbaska No. 3 about the compensation due to him caused by the professional trauma. The Uglegar town court was considering this civil case for more than two years. At last, on 1 February 2000 the court took the decision that was sent to the Maryinskiy district prosecutors office for investigation and making a decision on bringing Andrusenko to criminal responsibility.
Andrusenko and the trade union more than once turned to the Maryinskiy district prosecutors office with the request to inform them about the results of the investigation and to pass the materials to court, where he could defend himself, as it is stipulated by Article 55 of the Ukrainian Constitution. The prosecutors office ignores the requests for more than a year, which deprives Andrusenko of the right to defend himself from the false, as he believes, accusation. During this time he was twice summoned to the Ugledar town precinct. They proposed him to write an application for amnesty, after which they promised to close the case, but he refused the proposition. When Andrusenko for the umpteenth time asked to let him look at the case documents, the senior investigator explained that there were no documents at all, except the mentioned court decision.
‘Donetsk Memorial sent a letter to the General Prosecutor of Ukraine, where they described the circumstances and events connected with Andrusenkos case. A. Bukalov, the ‘Donetsk Memorial head attracted the attention of the General Prosecutor that the described actions of the local prosecutors office are typical bureaucrats red tape and violation citizens rights. In particular, it violates the European Convention that guarantees the right for a just trial.
In its request ‘Donetsk Memorial asked the General Prosecutor to check carefully the described facts and to inform about the results in the law-determined term, to provide Andrusenko with the motivated response, to inform of the investigation results and give him the copies of the decisions on starting the criminal case against him.
As it often happens, the General prosecutors office sent Bukalovs request for the check to first deputy of the prosecutors office of the Donetsk oblast V. Galtsov. It was on 27 April of the current year.
On the same day a response to Bukalov was mailed. It read:
‘According to Article 16 part 5 of the Ukrainian Law ‘On citizens complaints, a complaint for defending a citizen is handed by his commission, written in the from stated by law.
According to Article 16 part 6 of the Ukrainian Law ‘On citizens complaints, the complaint must be appended with the decisions of this matter that had been taken before or copies thereof, as well as other document necessary for considering the complaint.
According to Article 5 part 2 of the Ukrainian Law ‘On citizens complaints, the complaint must contain the name and address of the citizen.
You have not presented any document confirming that you empowered to represent the interests of Mr. Andrusenko in civil and criminal matters. Your request is not appended with the copies of the documents that testify that Mr. Andrusenko more than once turned to the Maryinskiy district prosecutors office, which, according to your information, ignored these complaints and has not taken any decisions up to now. You ask to send the motivated answer to Mr. Andrusenko without giving his address.
Your request does not agree with the demands of the Ukrainian Law ‘On citizens complaints, and thus will not be considered.
The answer was signed by O. Degtiariov, the head of the department of control of the prosecutors office of the Donetsk oblast.
This response is a typical bureaucratic trick: the complaint on the absence of documents is not considered because it is not appended with the missing documents. This trick is often applied to requests sent by human rights protection organizations.
‘PL commentary.It should be noted that the response of the Donetsk oblast prosecutors office to ‘Donetsk Memorial is highly erudite. Yet, naming the three reasons why the request was not considered, the author of the response did not account for some facts:
• ‘Memorial is not an advocates office, but an human rights protection NGO and among the documents that empower the organization to turn to state organs for protecting citizens rights it is not necessary to have a proxy for representing the clients interests in civil and criminal matters (which is directly stated in Article 16 part 6 of the Ukrainian Law ‘On citizens complaints of 2 October 1996). Moreover, this article directly mentions, among various organizations having the right to protect interests of citizens, labor collectives, which can be hardly imagined as conducting civil or criminal trials;
• the fact that some document are absent in the appendix to the request may be explained by the absence of these documents in possession of the citizen. If such decisions were taken, their results could be communicated to Andrusenko orally or not at all. This contradicts to Article 19 of the Law, but is common in the practices of Ukrainian state organs. In any case, even if such decisions do exist in the written from, their absence, as we shall see below, do not impede the consideration of the substance of the request;
• the strongest objection of the prosecutors office is the absence in the ‘Memorial request of Andrusenkos address. Really, in Bukalovs request there is no address of the citizen, on whose behalf he turns to the prosecutors office. Yet, Articles 5 part 2 and 16 part 5 of the Law require to indicate the name and address of the author of the request and not the address of the person, on whose behalf the request is sent. Besides, ‘Memorial is a human rights protection organization, that is among its statutory tasks there is protection of human rights, and this means that this organization has a legal right to get ‘from state bodies, the information needed for realizing its goals and tasks (Article 20 of the Law ‘On unions of citizens of 16 June 1992), i.e. ‘Memorial could be the only receiver of the information on the state of human rights in this case;
• last, but not least. Article 8 of the Law ‘On citizens complaints precisely describes the reasons for a refusal to consider a written request: absence of the home address, absence of the authors signature, or the impossibility to resolve the anonymity. Not a single reason out of the mentioned is valid here: Bukalovs request contains the postal address, it is signed, and Bukalovs authorship is obvious. Therefore, ‘Memorial had the legal right to get a motivated response (although it could be negative) to the substance of the matter.
As to Ansdrusenkos case, it is rather complicated, especially if one believes the investigating officer, who states that in the materials of the case there are no documents, except the court decision about the check of grounds to start a criminal case against Andrusenko. First, such a check may last not more than 10 days after an organ empowered to start criminal cases will receive the information on the availability of criminal features in the actions of the alleged culprits. Not later than in 10 days the organ must take either the decision to start the criminal case or to refuse starting it, and direct the decision taken to the proper recipient (Article 97 of the Criminal-Procedural Code of Ukraine). But in any case the file of documents had to contain at least one more document.
Secondly, a prosecutors office must information the court on the measures taken or give a motivated refusal in one months term (Article 235 of the Civil-Procedural Code of Ukraine). It follows from the complaint that the criminal case is not started already for 14 months.
Thirdly, summoning Adrusenko to interrogations looks very strange. At first he was summoned as a witness, but it is legal only after the case has been started, and the investigator took a decision to attract the person as a witness. Until the case is started, they may take from Andrusenko only explanations, which may not be used as proofs in a trial. To summon Andrusenko as an accused is nonsensical: before it they had to take the corresponding decision, to read out this decision to the accused in presence of his advocate (if he has one), to read the accused his rights, etc. Certainly, all this is possible only after the case is started. Beforehand Andrusenko might figure only as a suspect, that is a person, to whom one of the legal measures (arrest, obligation not to leave a place, bail, etc.) was applied until the resolution is issued about to treat him as an accused. In this capacity a person may stay for not more than 10 days. Before the expiration of this term the investigating officer must take a decision whether the case will be started and issue the order of considering the person as an accused, if he has sufficient proofs to do it (Articles 43, 43-1, 148 part 5 of the Criminal-Procedural Code of Ukraine). All this means that in any case the document had to be more numerous than the investigator states.