On addressing law-enforcing organs in concrete criminal cases.
13.12.2001
The comment of the Kharkov Group for human rights protection on the legal conditions, under which the human rights protection NGOs may represent a citizen.
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 prosecutor’s office the requests to elucidate a number of facts concerning the criminal case, in which Mr. Kiselev took part as an accused. In Kiselev’s 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 Prosecutor’s 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 Prosecutor’s 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 prosecutor’s office. Changes of the criminal-procedural laws in the framework of ’small court-legal reform’ weakened substantially the rights of prosecutor’s offices concerning the obtestation of court decisions: according to Article 384 the rights of prosecutor’s offices, including the General Prosecutor, are equalized with the rights of the condemned and his advocate. Besides, the General Prosecutor’s 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 prosecutor’s office, which investigated Kiselev’s 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 Prosecutor’s 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 Prosecutor’s office had to act as state organs, but not as juridical organs. The prosecutor’s 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.
Mr. V. Kiselev turned to the Donetsk ’Memorial’ and asked to direct to the court and prosecutor’s office the requests to elucidate a number of facts concerning the criminal case, in which Mr. Kiselev took part as an accused. In Kiselev’s 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 Prosecutor’s 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 Prosecutor’s 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 prosecutor’s office. Changes of the criminal-procedural laws in the framework of ’small court-legal reform’ weakened substantially the rights of prosecutor’s offices concerning the obtestation of court decisions: according to Article 384 the rights of prosecutor’s offices, including the General Prosecutor, are equalized with the rights of the condemned and his advocate. Besides, the General Prosecutor’s 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 prosecutor’s office, which investigated Kiselev’s 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 Prosecutor’s 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 Prosecutor’s office had to act as state organs, but not as juridical organs. The prosecutor’s 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.