14.12.2003 | Yuri Motorny, Poltava

Legality of a criminal process: reality or myth?


When an advocate gives the consent to protect the interests of a citizen suspected of the commitment of a crime, he cannot anticipate the problems that will appear both during the pre-trial investigation and during the trial.

Certainly, every advocate hopes that the investigator will fulfill the demands of Article 22 of the Criminal-Procedural Code „Profound, thorough and unbiased investigation of the circumstances of the case“. Yet, more and more frequently the absolute neglect is observed of the tendency to extenuate punishment, to use more attentive approach when applying the preventive detention.

Meeting the person, who was detained on suspicion of committing a crime, for the first time, the advocate cannot establish the psychological contact with his client at once. Only after some time, after numerous meetings and lengthy talks, the client begins to trust the advocate and informs him about various details of the affair.

Criminal case No. 9960253, which was investigated by an officer of the Zinkiv district precinct, at first did not differ from other cases. Yet, the analysis of the obtained data by and by resulted in the conclusion that the case was investigated with the violations of the demands of the CPC, the demands so considerable that they might not be ignored.

At the end of 1999 a crime was committed in a village of the Zinkiv district of the Poltava oblast, and the described criminal case was started. On 4 January 2000 citizen S. was detained on the suspicion of committing this crime. S. was kept in custody for three days, he was interrogated, but since the law-enforcers had no proofs of his participation in this crime, on 6 January he was released. The decision read: „In the process of ODA the information was not confirmed properly“. S. was released, but his military card was kept in the precinct for some reasons.

On 15 February 2000 the Resolution was issued on the refusal to start the criminal case against S. on the basis of item 2 Article 6 of the CPC. Thus, up to that moment the officers of the precinct obeyed the law. However, the following events spoiled the idyllic picture. On 13 November 2001 (almost two years later) militia officers of the Zinkiv district precinct came to S.’s house in one of distant villages situated about 200 kilometers from the town of Zinkiv. They forced S. to get in the car and took him to the precinct. Here the resolution was issued on the detainment of S. for vagrancy. „S. arrived in Zinkiv without any documents“, stated the resolution. Thus, the militiamen included the false information to the resolution. On the next day the militiamen phoned to S.’s relatives and told to bring some food and clothes for him. The law-enforcers ignored the facts that the military card of S. was kept in the precinct, that they knew S. personally and that he was taken to Zinkiv coercively. They also neglected the article „The regulations on the receiving-distribution centers for the persons detained for vagrancy“ and order No. 295 of the head of the militia directorate of the Poltava oblast, which prohibited the detainment and holding in custody of the persons suspected of committing crimes. Most likely the precinct officers hoped that nobody would notice their actions and they would not be brought to responsibility. And, as the further events showed, their hopes were realized.

On 23 November 2001 the investigating officer of the Zinkiv district precinct issued new resolution: on the detainment of S. on the suspicion of committing crime, in spite of the previous resolution that acquitted S. This was another essential violation of S.’s rights. According to item 11 Article 6 of the CPC, a criminal case may not be started, and the started case must be closed, if the previous resolution on the refusal to start the case concerning the same fact was not cancelled.

So, the detention of S. on 23 November 2001 was illegal. The investigating officer had at first to solve the question on canceling the previous resolution of 15 February 2000, and only after this he had the right to continue the investigation. Meanwhile, the investigator merely withdrew the previous resolution from the case documents expecting that this would remain unnoticed.

Many other violations were disclosed during the study of the case materials. The case was investigated by a non-procedural person. The investigator, who worked with the case since 1999, was dismissed from his post by order 22/OC of 20 March 2001. Thus, on 20 or 21 March the case was passed to another investigating officer. However, there are no corresponding documents in the case. After some time the former investigator returned to the district precinct and undertook the investigating activities also without the resolution about the acceptance of the case. Article 113 of the CPC stipulates: „If an investigating officer accepts the case started before, he must issue the resolution about the acceptance of the case“. The comment to the mentioned article explains that a case may be investigated only by the officer, who issued the resolution on the acceptance of this case (Scientific and practical comments of the CPC, edited by V. Maliarenko and V. Goncharov, page 302).

Thus, all evidences obtained by the investigating officer without the resolution on accepting the case, as well as the detainment of S. and the decision on the preventive measure, were illegal.

Article 156 of the CPC „Terms of keeping under custody“, which reads: „Keeping under custody during the pre-trial investigation may not last more than two months“, was also violated. Taking into account that S. stayed in the preliminary prison from 4 to 6 January 2000 (three days) and was detained again on 23 November 2001, the term of keeping under custody had to be calculated from 20 November 2001. The investigator did not turn to court with the request to prolong this term, so he had to hand to the warden of preliminary prison No. 23 the resolution on the release, and S. had to be released. Yet, the investigator had no intentions to obey the demands of the CPC. The prosecutor of the Zinkiv district had to correct the violation of the law, but on 31 January he signed the accusation ignoring the appeals of the advocate and the brutal violations of laws. The advocate directed several complaints to the prosecutor’s office of the Poltava oblast and the oblast militia directorate. Even if the complaints were considered, there were no positive results. All complaints sent to the oblast prosecutor’s office were returned to the prosecutor of the Zinkiv district, that is the person against whom the complaints were made. At that the demands of Article 22 of the CPC „Appeals against the actions of investigating officer and prosecutor. Order of the General Prosecutor of Ukraine No. 1 of 3 January 2001“ were not taken into account. In particular, this article reads: „processing the appeals must be regarded as one of the most important directions in the activities of prosecution organs, its purpose is the protection of constitutional rights and freedoms of citizens, strengthening of law and order“. The same order (part 7 item 2) prohibits „to send the appeals of citizens to the organs or officials, against whose actions or decisions the appeals are lodged“. The mentioned demand is also contained by item 3 of the order: „To prohibit the direction of the appeals to the prosecutor’s offices that are not empowered to consider the appeals, or those, whose heads took the decisions on the arguments stated in the appeals.“

Letter No. 1/7-I-24 of 25 February 2002 sent by the militia directorate of the Poltava oblast reads: „No illegal actions or violations of law on the side of the militia officers during the detention of S., his upkeep in the preliminary prison of the Zinkiv district and the investigation of the criminal case, in which S. was regarded as the accused, were disclosed“

On 1 February 2002 the case was passed to court.

The court had another opinion on the above-mentioned facts, it acknowledged the appeal of the advocate to be reasonable and obliged the investigation officer to present the resolution of 15 February 2000. On this basis the court issued the decision to return the case for the additional investigation. Unfortunately, the court did not make the next logical step: it did not release S. from the preliminary prison, and he continued to stay there unduly. Besides, the court did not determine clearly other violations of law and so did not aim the investigator and prosecutor at the liquidation of these violations.

It seems that after this decision the prosecution and law-enforcing organs had to acknowledge the illegality of their actions and to try to obey the demands of the Constitution and CPC. On the contrary. Letter of the militia directorate No. 8/I-31 of 26 February 2003 consists of two sentences. The first one informs that the case is directed for the additional investigation (?!) and another states: „You will be directly informed by the organ that conducts the pre-trial investigation about the decision taken on criminal case No. 99060253.“

Prosecutor’s response No. 04/2-389-03 of 24 February 2003 reads that the case was accepted by the investigator. „The arguments stated in your complaints will be checked in the course of the pre-trial investigation, so the oblast prosecutor’s office passed them to the prosecutor of the Zinkiv district for attaching the complaints to the case materials“.

Thus, the reader may draw his own conclusion about the „proper“ assessment of the activities of investigators. Undoubtedly, the demands of the CPC will not be fulfilled in future too.

The given facts testify that the organs of pre-trial investigation and the prosecution organs ignore the demands of the Constitution and CPC, as well as the orders of the militia directorate and General Prosecutor’s office.

Certainly, we must struggle against the criminality, but it must be done in the framework of laws and Constitution. Citizen S. stays in the preliminary prison for 16 months, and for 10 days he was kept here being illegally accused of vagrancy. Nobody was brought to responsibility for this.

The General Prosecutor of Ukraine and the Minister of Interior more than once proclaimed the principle of legality during the investigation of criminal cases. The above-described case demonstrated how these principles are put into practice. After all, are the prosecutor’s office and militia directorate able to admit their own violations and to correct them? Or it is more convenient to use the principles of the notorious 1937?

PL“ commentary: In the course of our work we often come across the complete legal ignorance of investigation organs and the unwillingness of prosecutor’s offices to control the observance of operating laws. Unfortunately, this problem of the Ukrainian society has reached so large scale that the situation can be improved only by the radical reform of court and the entire system of law-enforcing institutions. Yet, we do not see any political will (either of legislative or of executive power) to reform systematically the spheres that are vital for the society: law-enforcing and court organs, the system of health protection. Alas, Ukraine remains to be a country with the ruined and uncontrolled systems.

It is obvious that no state can exist in such regime for a long time. So, only real reforms can save us from the complete decline.

We are waiting for new messages from Mr. Motorny in the connection with this case.

Inna Sukhorukova

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