Access to information about illegal actions of law-enforcers.
13.12.2002
The continuation of the article analyzing is presented of the ways to restrict the access to information using illegal classifications of secret documents (see the previous issue).
(Continued from the previous issue)
The problem of torture and cruel treatment is the most difficult problem in human rights protection. According to our monitoring, the cases of applying torture in Ukraine during inquiry and preliminary investigation become more frequent, and actions of militia become crueler. Some facts of death as a result of torture are known. As before, no system exists of independent investigation of complaints against cruel actions of militia. Service investigations are carried out by officers of another directorate of the Ministry of Interior and they are not fast and unbiased. It is next to impossible to make prosecutor’s office start a criminal case. To get convinced in the correctness of these empiric conclusions we decided to try to learn how many complaints against the illegal actions of law-enforcers are handed, how many of them are satisfied, how many people are brought to criminal or administrative responsibility and how many people have been condemned according to articles 166 and 175 of the Criminal Code of Ukraine of 1961 (for misuse of power and illegal methods of investigation). To this end, we sent to the Ministry of Justice, Ministry of Interior, General Prosecutor’s office and to all 27 regional prosecutor’s and militia directorates the requests of the following content:
Our organization prepares analytical issues of the bulletin ’Prava ludyny’ about the state of human rights in Ukraine. According to Article 40 of the Ukrainian Constitution, Articles 28, 29, 32, 33 of the Ukrainian Law ’On information’ and Articles 34, 35 of the Ukrainian Law ’On printed mass media (press) in Ukraine’ we ask to send us in writing the following information.
The number of complaints against the illegal actions of law-enforcers of [the name of the region] in 1998-2000 and the first half of 2001, how many of them are satisfied, how many people are brought to disciplinary responsibility.
In the report to the State Department of the USA on the state of human rights in Ukraine in 2000 (http://state.gov/g/drl/rls/hrrpt/2000) it is said, erroneously, in our opinion, that ’state organs did not incarcerate penitentiary and militia officers, who inflicted or encouraged violence against convicts’. We ask to give us the information about the number of the penitentiary and militia officers of [the name of the region], who were condemned according to Articles 166 and 175 in 1998-2000 and the first half of 2001 classified by years and articles.
Our requests remained unanswered by the prosecutor’s office of Kyiv and prosecutor’s offices of 13 oblasts: Cherkassy, Ivano-Frankivsk, Kharkov, Kherson, Khmelnitskaya, Kirovograd, Kyiv, Lviv, Odessa, Sumy, Ternopil, Vinnitsa and Zaporozhye. Thus, they brutally violated Article 40 of the Ukrainian Constitution and Articles 28, 29 and 32 of the Ukrainian Law ’On information’. 13 prosecutor’s offices answered our requests, but 6 of them refused to present information justifying themselves with different motives. The prosecutor’s office of the Zhytomir and Lugansk oblast answered that the requested statistical information is a state property, which is owned by the organs of state statistics, so they have no right to present it to us. The Crimean prosecutor’s office considers that divulging the requested data ’may inflict harm to citizens’ rights that are protected by laws’ and that ’this information may be used only for service reasons’. The absurdity of the first part of the refusal is obvious, since we requested no personal, but generalized statistical data. The second part of the answer just confirms the arbitrary use of the classification for restricting access. The Sevastopol prosecutor’s office regards the requested information as ’confidential information, i.e. information with the restricted access, distribution of which, according to Section 5 of the Ukrainian Law ’On state statistics’, is prohibited’. Yet, this very section tells that the prohibition of distributing statistical information connected with data about a concrete person does not concern generalized statistical data. The Dnepropetrovsk oblast prosecutor’s office informed us that they do not collect such statistics, and the Chernovtsy oblast prosecutor’s office answered that we must turn to the General Prosecutor’s office, referring to item 1 of Article 6 of the Ukrainian Law ’On prosecutor’s office’ (’prosecutor’s offices make a united centralized system headed by the General Prosecutor of Ukraine, where lower prosecutors are subordinated to higher ones’).
Our first request to the General Prosecutor’s office was answered by M. Garnik, the first deputy of the General Prosecutor. He wrote that such data are not processes in the statistical reports of the Ukrainian prosecutor’s offices, and recommended us to turn to the Ministry of Justice, which keeps the statistics. This answer is strange, since namely prosecutor’s offices must control the observation of laws by the organs, which conduct ODA, inquiry, preliminary investigation, execution of court decisions in criminal cases and application of other coercive measures involving the restriction of citizens’ freedom. That is why, in our opinion, it is the prosecutor’s office that must collect and analyze the data about such violations of laws. This was confirmed by the answers from prosecutor’s offices of seven oblasts.
In its turn, the Ministry of Justice answered our request that the data about the number of the condemned officers of militia, prosecutor’s offices and penitentiary department are not singled out from the general statistics.
We turned to the General Prosecutor’s office for the again trying to protest against the refusal, ungrounded, in our opinion, to present the information and asking to make the prosecutor’s offices, which did not answer us at all, obey the Law ’On information’. The answer we got was also signed by M. Garnik. He unexpectedly confirmed, contradicting his previous letter, that the requested statistical data are formed in the prosecutor’s offices, in the Ministry of Interior and in the Ministry of Justice. Later these data are passed to the State Committee of statistics, where he advised us to turn. The most characteristic feature of this response, we believe, is the complete absence of any reaction to obvious violations of laws by regional prosecutor’s office subordinated to the General Prosecutor’s office. So, we turned to the General Prosecutor’s office for the third time, summing up the result of our requests and informing our addressee that the data we need are not placed in annual statistical reports. We also referred to the Constitutional norm about the duty of the General Prosecutor’s office to control the observation of laws by the organs of inquiry and preliminary investigation. We again asked to answer our informational requests, indicating that else we will turn to court in each case of refusing the response. We received the third, quote irritated, letter from Mr. Garnik, who repeated that we must turn to the State Committee of statistics. He asserted that the statistical reports of prosecutor’s offices do not contain such data and that there are no grounds to apply sanctions to prosecutors, who did not give us such data.
All this correspondence, we believe, testifies on unconcealed, if not demonstrative, ignoring the Law ’On information’, obvious unwillingness to inform the public about violating laws in law-enforcing organs and, at the same time, demonstration of their complete impunity. We reckon that we have all grounds to hand claims against the General and regional prosecutor’s offices. We intend to turn to court soon, so we sent brief letters to all the 14 prosecutor’s offices, which had not answered, asking them to respond or to inform in writing about the reasons of the refusal, which we are going to use in court.
The answers from regional militia directorates follow the same line. We did not get the answers from 17 directorates out of 27. The remaining directorates did respond, but their answers were unsatisfactory. The Crimean militia directorates advised us to turn to the Crimean Supreme Court, Dnepropetrovsk and Kirovograd directorates refused to provide us with any data, referring to Articles 30, 31 and 37 of the Law ’On information’. Here we also witnessed an arbitrary classification of information as confidential, although we requested not personal, but generalized statistical data.
We sent a letter to the Minister of Interior, where we wrote about the absence of answers and the refusals to present the requested information. We asked to make the regional directorates answer us and to give us the requested information concerning the entire country. We received the answer that the requested data are stored and controlled by prosecutor’s offices. This answer is somewhat strange, taking account of internal normative acts of the Ministry of Interior. For instance, according to item 2.3 of Order of the Ministry of Interior of Ukraine of 10 June 1998 No. 414 ’On the approval of the Instruction on the procedure of considering suggestions, applications, complaints and organizing personal reception in law-enforcing organs, internal troops, higher schools, establishments, organization and enterprises of the militia system of Ukraine’, deputy ministers, heads of main directorates, autonomous directorates and ministry departments, heads of Main militia directorates in the Crimea, Kyiv and the Kyiv oblast, militia directorates in oblasts and the city of Sevastopol must quarterly analyze the state of work with written and oral applications of citizens and suggest concrete measures to improve this work. Item 6.78 of the Instruction reads that, as a rule, the applications are controlled about drawbacks in the work of law-enforcing organs, violation of laws by law-enforcers and their incorrect behavior, which may not be regarded as the violation of laws. According to item 6.14 the assessment of the work of law-enforcing organs is made with the account of the quality of their work in considering citizens’ applications and reception of the citizens. Therefore, the answer to our informational request is under direct competence of the law-enforcing organs.
Thus, we received meaningful answers from prosecutor’s offices of seven oblast and from seven regional militia directorates. It should be noted that oblast militia directorates presented more complete information compared to the prosecutor’s offices.
The data obtained about the number of complaints against illegal actions of law-enforcers are summarized in Table 4, the data about the condemned law-enforcing officers are presented in Table 5. The analysis of the data shows that the number of the complaints during one year varies between 550 and 3500 in different oblasts, and in the Poltava and Rivne oblasts it steadily grows. The greatest number of the complaints (more than 2500 per year) is observed in the Donetsk oblast. Militia registers 1.5-2 times less complaint than prosecutor’s office, but the proportion of the complaint satisfied by militia is much more (20-30%) than that of prosecutor’s office (1-2%). This dependence is valid for all oblasts: the proportion of complaints satisfied by militia is everywhere greater than that of prosecutor’s office, and it is never less than 14%. It may be explained by the fact that militia may impose a disciplinary punishment, while prosecutor’s office must open a criminal case. On the whole, the number of disciplinary punishments is several orders of magnitude more than the number of opened criminal cases.
It astonishing that the number of satisfied complaints is stable in different oblasts: 20-30% in the Vinnitsa, Rivne and Kharkov oblasts, 15-17% in the Volyn and Trans-Carpathian oblasts. The smallest number (0.7%) of complaints is satisfied by the prosecutor’s office of the Donetsk oblast.
What concerns bringing law-enforcers to criminal responsibility for using torture, then not a single person was condemned according to Article 175 of the Criminal Code of Ukraine of 1961, and the number of the condemned for misuse of power is very small. Here the Donetsk oblast is the leader again. By the way, only prosecutor’s offices of the Volyn and Chernigov oblasts gave the data about the number of the condemned.
The problem of torture and cruel treatment is the most difficult problem in human rights protection. According to our monitoring, the cases of applying torture in Ukraine during inquiry and preliminary investigation become more frequent, and actions of militia become crueler. Some facts of death as a result of torture are known. As before, no system exists of independent investigation of complaints against cruel actions of militia. Service investigations are carried out by officers of another directorate of the Ministry of Interior and they are not fast and unbiased. It is next to impossible to make prosecutor’s office start a criminal case. To get convinced in the correctness of these empiric conclusions we decided to try to learn how many complaints against the illegal actions of law-enforcers are handed, how many of them are satisfied, how many people are brought to criminal or administrative responsibility and how many people have been condemned according to articles 166 and 175 of the Criminal Code of Ukraine of 1961 (for misuse of power and illegal methods of investigation). To this end, we sent to the Ministry of Justice, Ministry of Interior, General Prosecutor’s office and to all 27 regional prosecutor’s and militia directorates the requests of the following content:
Our organization prepares analytical issues of the bulletin ’Prava ludyny’ about the state of human rights in Ukraine. According to Article 40 of the Ukrainian Constitution, Articles 28, 29, 32, 33 of the Ukrainian Law ’On information’ and Articles 34, 35 of the Ukrainian Law ’On printed mass media (press) in Ukraine’ we ask to send us in writing the following information.
The number of complaints against the illegal actions of law-enforcers of [the name of the region] in 1998-2000 and the first half of 2001, how many of them are satisfied, how many people are brought to disciplinary responsibility.
In the report to the State Department of the USA on the state of human rights in Ukraine in 2000 (http://state.gov/g/drl/rls/hrrpt/2000) it is said, erroneously, in our opinion, that ’state organs did not incarcerate penitentiary and militia officers, who inflicted or encouraged violence against convicts’. We ask to give us the information about the number of the penitentiary and militia officers of [the name of the region], who were condemned according to Articles 166 and 175 in 1998-2000 and the first half of 2001 classified by years and articles.
Our requests remained unanswered by the prosecutor’s office of Kyiv and prosecutor’s offices of 13 oblasts: Cherkassy, Ivano-Frankivsk, Kharkov, Kherson, Khmelnitskaya, Kirovograd, Kyiv, Lviv, Odessa, Sumy, Ternopil, Vinnitsa and Zaporozhye. Thus, they brutally violated Article 40 of the Ukrainian Constitution and Articles 28, 29 and 32 of the Ukrainian Law ’On information’. 13 prosecutor’s offices answered our requests, but 6 of them refused to present information justifying themselves with different motives. The prosecutor’s office of the Zhytomir and Lugansk oblast answered that the requested statistical information is a state property, which is owned by the organs of state statistics, so they have no right to present it to us. The Crimean prosecutor’s office considers that divulging the requested data ’may inflict harm to citizens’ rights that are protected by laws’ and that ’this information may be used only for service reasons’. The absurdity of the first part of the refusal is obvious, since we requested no personal, but generalized statistical data. The second part of the answer just confirms the arbitrary use of the classification for restricting access. The Sevastopol prosecutor’s office regards the requested information as ’confidential information, i.e. information with the restricted access, distribution of which, according to Section 5 of the Ukrainian Law ’On state statistics’, is prohibited’. Yet, this very section tells that the prohibition of distributing statistical information connected with data about a concrete person does not concern generalized statistical data. The Dnepropetrovsk oblast prosecutor’s office informed us that they do not collect such statistics, and the Chernovtsy oblast prosecutor’s office answered that we must turn to the General Prosecutor’s office, referring to item 1 of Article 6 of the Ukrainian Law ’On prosecutor’s office’ (’prosecutor’s offices make a united centralized system headed by the General Prosecutor of Ukraine, where lower prosecutors are subordinated to higher ones’).
Our first request to the General Prosecutor’s office was answered by M. Garnik, the first deputy of the General Prosecutor. He wrote that such data are not processes in the statistical reports of the Ukrainian prosecutor’s offices, and recommended us to turn to the Ministry of Justice, which keeps the statistics. This answer is strange, since namely prosecutor’s offices must control the observation of laws by the organs, which conduct ODA, inquiry, preliminary investigation, execution of court decisions in criminal cases and application of other coercive measures involving the restriction of citizens’ freedom. That is why, in our opinion, it is the prosecutor’s office that must collect and analyze the data about such violations of laws. This was confirmed by the answers from prosecutor’s offices of seven oblasts.
In its turn, the Ministry of Justice answered our request that the data about the number of the condemned officers of militia, prosecutor’s offices and penitentiary department are not singled out from the general statistics.
We turned to the General Prosecutor’s office for the again trying to protest against the refusal, ungrounded, in our opinion, to present the information and asking to make the prosecutor’s offices, which did not answer us at all, obey the Law ’On information’. The answer we got was also signed by M. Garnik. He unexpectedly confirmed, contradicting his previous letter, that the requested statistical data are formed in the prosecutor’s offices, in the Ministry of Interior and in the Ministry of Justice. Later these data are passed to the State Committee of statistics, where he advised us to turn. The most characteristic feature of this response, we believe, is the complete absence of any reaction to obvious violations of laws by regional prosecutor’s office subordinated to the General Prosecutor’s office. So, we turned to the General Prosecutor’s office for the third time, summing up the result of our requests and informing our addressee that the data we need are not placed in annual statistical reports. We also referred to the Constitutional norm about the duty of the General Prosecutor’s office to control the observation of laws by the organs of inquiry and preliminary investigation. We again asked to answer our informational requests, indicating that else we will turn to court in each case of refusing the response. We received the third, quote irritated, letter from Mr. Garnik, who repeated that we must turn to the State Committee of statistics. He asserted that the statistical reports of prosecutor’s offices do not contain such data and that there are no grounds to apply sanctions to prosecutors, who did not give us such data.
All this correspondence, we believe, testifies on unconcealed, if not demonstrative, ignoring the Law ’On information’, obvious unwillingness to inform the public about violating laws in law-enforcing organs and, at the same time, demonstration of their complete impunity. We reckon that we have all grounds to hand claims against the General and regional prosecutor’s offices. We intend to turn to court soon, so we sent brief letters to all the 14 prosecutor’s offices, which had not answered, asking them to respond or to inform in writing about the reasons of the refusal, which we are going to use in court.
The answers from regional militia directorates follow the same line. We did not get the answers from 17 directorates out of 27. The remaining directorates did respond, but their answers were unsatisfactory. The Crimean militia directorates advised us to turn to the Crimean Supreme Court, Dnepropetrovsk and Kirovograd directorates refused to provide us with any data, referring to Articles 30, 31 and 37 of the Law ’On information’. Here we also witnessed an arbitrary classification of information as confidential, although we requested not personal, but generalized statistical data.
We sent a letter to the Minister of Interior, where we wrote about the absence of answers and the refusals to present the requested information. We asked to make the regional directorates answer us and to give us the requested information concerning the entire country. We received the answer that the requested data are stored and controlled by prosecutor’s offices. This answer is somewhat strange, taking account of internal normative acts of the Ministry of Interior. For instance, according to item 2.3 of Order of the Ministry of Interior of Ukraine of 10 June 1998 No. 414 ’On the approval of the Instruction on the procedure of considering suggestions, applications, complaints and organizing personal reception in law-enforcing organs, internal troops, higher schools, establishments, organization and enterprises of the militia system of Ukraine’, deputy ministers, heads of main directorates, autonomous directorates and ministry departments, heads of Main militia directorates in the Crimea, Kyiv and the Kyiv oblast, militia directorates in oblasts and the city of Sevastopol must quarterly analyze the state of work with written and oral applications of citizens and suggest concrete measures to improve this work. Item 6.78 of the Instruction reads that, as a rule, the applications are controlled about drawbacks in the work of law-enforcing organs, violation of laws by law-enforcers and their incorrect behavior, which may not be regarded as the violation of laws. According to item 6.14 the assessment of the work of law-enforcing organs is made with the account of the quality of their work in considering citizens’ applications and reception of the citizens. Therefore, the answer to our informational request is under direct competence of the law-enforcing organs.
Thus, we received meaningful answers from prosecutor’s offices of seven oblast and from seven regional militia directorates. It should be noted that oblast militia directorates presented more complete information compared to the prosecutor’s offices.
The data obtained about the number of complaints against illegal actions of law-enforcers are summarized in Table 4, the data about the condemned law-enforcing officers are presented in Table 5. The analysis of the data shows that the number of the complaints during one year varies between 550 and 3500 in different oblasts, and in the Poltava and Rivne oblasts it steadily grows. The greatest number of the complaints (more than 2500 per year) is observed in the Donetsk oblast. Militia registers 1.5-2 times less complaint than prosecutor’s office, but the proportion of the complaint satisfied by militia is much more (20-30%) than that of prosecutor’s office (1-2%). This dependence is valid for all oblasts: the proportion of complaints satisfied by militia is everywhere greater than that of prosecutor’s office, and it is never less than 14%. It may be explained by the fact that militia may impose a disciplinary punishment, while prosecutor’s office must open a criminal case. On the whole, the number of disciplinary punishments is several orders of magnitude more than the number of opened criminal cases.
It astonishing that the number of satisfied complaints is stable in different oblasts: 20-30% in the Vinnitsa, Rivne and Kharkov oblasts, 15-17% in the Volyn and Trans-Carpathian oblasts. The smallest number (0.7%) of complaints is satisfied by the prosecutor’s office of the Donetsk oblast.
What concerns bringing law-enforcers to criminal responsibility for using torture, then not a single person was condemned according to Article 175 of the Criminal Code of Ukraine of 1961, and the number of the condemned for misuse of power is very small. Here the Donetsk oblast is the leader again. By the way, only prosecutor’s offices of the Volyn and Chernigov oblasts gave the data about the number of the condemned.