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13.12.2001 | Konstantin Ustimenko, Dnepropetrovsk.

A citizen and the prosecutor’s office .

   

This December is the workers of prosecutor’s offices celebrate their jubilee: ten years have passed since the independent Ukraine adopted the Law ’On prosecutor’s office’. In the combination with the Day of human rights, celebrated annually in December, this jubilee makes one meditate about the place of prosecutor’s office in the structure of law-enforcing organs and its opportunities in the protection of human rights in Ukraine.

My personal experience of turning to prosecutor’s offices for protecting legal rights of citizens testifies that, before the new Constitution that defined courts as the main organ of citizens’ rights protection was adopted, the mechanism of general surveillance over the execution of laws by prosecutor’s office was acting parallelly and rather successful. prosecutor’s reaction by the way of protesting in the framework of the surveillance against illegal acts has an advantage over the court consideration by the time needed for restoring the violated citizens’ rights.

Yet, if a prosecutor did not find the grounds for protest, then this decision could be appealed in a court, but very infrequently, in separate cases established by law. Maybe, it was right, since nobody wanted to conflict with prosecutor’s office, taking into account its power.

In the new Constitution the status of prosecutor’s office was defined in Part 7, between the parts about the executive power and the judicial power. Thus, prosecutor’s office was treated as a state organ belonging neither to legislative, nor to executive, nor to judicial power. The activities of prosecutor’s office were oriented to court process: supporting of state accusation and representation of state interests, as well as the surveillance over preliminary investigation and the legality of the coercive measures. Such a cardinal narrowing the functions of prosecutor’s office by the Constitution, in spite of the five-year period of the application of the transitive norms that retained some former functions of prosecutor’s office, had to be reflected in the new version of the Law ’On prosecutor’s office’.

Let us consider the changes introduced in the Law ’On prosecutor’s office’ acting since 26 July 2001.

It is seen at the first glance that about the half of the text of the changes is devoted to the new version of Article 501 that is titled ’On pensions of prosecutors and investigating officers’. It is clear from the text that a prosecutor, who protects in court interests of common citizens, is an especial kind of a citizen, who obeys the Ukrainian Law ’On pensions’ in a limited degree.

The question is: why prosecutors are worse than MPs, judges and some other categories of statesmen, whose pension is much bigger?

Article 24 of the Constitution reads: ’Ukrainian citizens are equal before the law’, but some citizens are more equal, because there are different laws for different citizens.

I agree that the state officials, who realize ’irreversible processes of reforms in Ukraine’, are the best citizens. Even Demokretes told in IV century B. C.: ’the nature dictates that the best must rule, the common sense demands to obey laws, power and intellectual superiority’.

Let us note that such the philosopher did not mentioned qualities of rulers as honesty and modesty.

It is interesting to see how the new version of the Law ’On prosecutor’s office’ reflects Article 3 of the Constitution that reads: ’Rights and freedoms of man and their guarantees determine the content and direction of state activities’, whence it follows that what protects the legal interests of a individual also protects the interests of a state.

Article 361 of the Law ’On prosecutor’s office’ divides the interests of an individual and the state in court. While the reason for representing state interests by a prosecutor in court is the presence of damaging state interests or the threat of it, the reason for representing interests of an individual is his inability to protect his rights in court because of his physical of material status. So it means that representing private interests, as opposed to state interests, is done by a prosecutor as rendering social aid.

Yet, if to bear in mind the material status while paying court expenses (prosecutors in such cases must not pay the expenses), then such legal norm is rather progressive for court protection of citizens.

In spite of different interpretations of the mentioned article of the Law ’On prosecutor’s office’, this article stipulates the functions of prosecutor’s office to defend interests both the state and of an individual.

Does the information distributed by mass media about state officials, who are blamed for violating the Criminal Code, serve the state interests? Certainly no, it undermines the state prestige. So, Article 94 of the Criminal Code of Ukraine states that a piece of information published in the press can be a pretext for starting a criminal case.

According to Article 4 of the same Code a prosecutor is obliges to start a criminal case after the publication in mass media, which contained the information about illegal actions of a state official and to answer the question: are their thieves and swindlers among the authorities or newsmen acted as slanderers.

Alas, I have never heard that prosecutors started criminal cases after some publications and finished these cases with court verdicts. That is why readers have to believe that there are both honest people and swindlers among administrators.

There are such problems in Ukraine, which concern the rights of the majority or at least of a great proportion of the population. For example, the activities of the monopolist in selling natural gas for population ’Neftegaz Ukrainy’ it is incomprehensible how the prices of the gas may be different for different groups of citizens.

The existing policy contradicts Article 24 of the Constitution about the equality of citizens independently of their income. So, the price of one cubic meter of gas is 17.5 kopecks, when the consumer has a gas counter, and 19 kopecks otherwise. Since 1 September 1995 the price of gas grew. The increment of the price had to be directed for purchasing and free installation of the counters for citizens. It was done according to resolution of the Cabinet of Ministers of Ukraine No. 422 of 14 June 1995 ’On the production and implementation of the equipment of gas consuming’, Order of the Ministry of Economics of Ukraine No. 103 of 4 July 1995 and the Regulations of the off-budget fund for assistance to the production and implementation of the gas counting equipment approved by orders of the Ministry of Economics, Ministry of Finances and the State Committee of gas industry of 19 July 1995 No. 115/127/1469.

The question of consumers ’Where are our money?’ can be answered only by a prosecutor’s investigation.

Let us consider another example of arbitrary actions of ’Neftegaz Ukrainy’. The court decision confirmed that demanding the additional sums for gas from citizens in the period from 9 June 1999 to 10 February 2000 was illegal.

Another monopolist – electric energy supplying service – demands from consumers beside the established price of 13 kopecks an extra pay of the VAT -- 2.6 kopecks. Yet, according to the norms of corresponding laws, the payment for communal services is done after the approved costs, and, according to item 1.2 Article 1 of the Law ’On the VAT’, the payers of this tax are physical persons: legally registered businessmen.

Certainly, the prosecutor has to right to send such cases to court or to express grievance about the passivity of the ombudsperson or anti-monopoly committee, but I believe that there exist prosecutors, who take such violations to heart. And congratulating personnel of prosecutor’s offices with their jubilee, I appeal them to emulate their colleagues, for whom the protection of citizens’ interests is the protection of state interests.

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