On addressing law-enforcing organs in concrete criminal cases.
The Kharkov Group for human rights protection (KhG) repeatedly obtained from their colleagues the information that law-enforcing organs refuse to consider the complaints from human rights protection organizations on behalf of persons, who turned to these organizations for help. We decided to comment one of the latest complaints of this kind (from the Donetsk Memorial) with the purpose of elucidating the situation.
Mr. V. Kiselev turned to the Donetsk Memorial and asked to direct to the court and prosecutors office the requests to elucidate a number of facts concerning the criminal case, in which Mr. Kiselev took part as an accused. In Kiselevs opinion, the affair was investigated with a number of obvious violations of procedural laws, and the conclusions of the court did not comply with the actual facts, found during the trial. Memorial sent the requests to the Supreme Court of Ukraine and to the General Prosecutors office asking to carry out an unbiased check of the case. The both organs refused to consider the request referring to the fact that Memorial has no documents stipulated by law, which would confirm its right to act on behalf of V. Kiselev.
In our opinion, there are certain shortcomings both in the request of Memorial and in the responses of the General Prosecutors office and the Supreme Court. In its request Memorial asked the mentioned agencies to conduct the unbiased check of the facts presented by Mr. Kiselev. Such a check may be conducted by the Supreme Court only in the framework of a supervisory before, and now as a check of a cassation. As a result the Supreme Court regarded the request as a petition concerning the criminal case or a cassation of some kind. The procedure of handing such documents is governed by the Criminal-Procedural Code (CPC); the list of persons, who have the right to hand in such documents, is given in Articles 384 and 348 of the Code. Memorial was regarded as a defender, while only a person defined by Article 44 of the CPC may be a defender. The rights of such person must be confirmed by special documents: an order of advocate union, the agreement or commission of the defended. Thus, the actions of Memorial related to the Supreme Court had to be based on the corresponding documents. The situation is somewhat different when dealing with the prosecutors office. Changes of the criminal-procedural laws in the framework of small court-legal reform weakened substantially the rights of prosecutors offices concerning the obtestation of court decisions: according to Article 384 the rights of prosecutors offices, including the General Prosecutor, are equalized with the rights of the condemned and his advocate. Besides, the General Prosecutors office had the opportunity to satisfy the request of Memorial in two ways: to hand the cassation in the framework of criminal trial or to conduct the service check of the activities of the prosecutors office, which investigated Kiselevs case. The first way is also connected with the status of the advocate in the criminal trial and with corresponding documents confirming this status. The second variant is connected with administrative procedures, and the appeal of Memorial must be regulated by the Law On appeals of citizens. Actually, Article 5 of this law stipulates that an appeal on behalf of other citizens may be handed only by the person, who has this right according to the law. However, Article 16 of the law directly envisages as subjects of handing such appeals organizations, which carry out human rights protection activities. This list also contains labor collectives. It is obvious that neither human rights protection organizations nor labor collectives can act as defenders in criminal cases or representatives in civil or economic conflicts. The norm on handing complaints is special related to the norm on handing appeals in general and has a greater juridical weight compared to complaints. Therefore, it may not be said that the representation of citizens by human rights protecting organizations, i.e. such organizations, whose statutes include human rights protection, must be restricted by rigid frames of corresponding codices. I believe that in the given case a copy of the letter from Kiselev to Memorial with the request to help him would be a sufficient proof for the General Prosecutors office. However, it would be legal if Memorial compiled the appeal as a complaint sensu Article 16 of the law.
It should be noted that the presented position is nothing but an interpretation of the legal norms by the author. This interpretation requires a correspondent substantiation, being not an obvious consequence from these or those legal norms. Undoubtedly, for any state organ a proxy compiled according to Article 65 of the Civil Code (i.e. attested by a notary) would be more convincing. In the given situation Memorial should direct the appeal in the form of information request. In this case handing the appeal would be regulated by Articles 32-35 of the Ukrainian Law On information and Article 20 of the Law On appeals of citizens, which would completely remove the case from the procedural norms, and the Supreme Court and General Prosecutors office had to act as state organs, but not as juridical organs. The prosecutors office and court could not then refuse to a human rights protecting organization to give the objective information about the circumstances and the course of investigating the given case and the reaction of competent organs to the obvious violations of laws.