15.03.2004 | Vladimir Zubarev, a chairman of the Crimean collegium of advocates

Violations of the legislation on the protection of human rights


During 2002 and 2003 the advocates of the Crimean collegium observed a great number of serious violations of the legislation on the protection of human rights and the violations of the rights of advocates representing the interests of citizens.

The most of these violations were committed in the course of preliminary investigation of criminal cases, during the detention and holding in custody of the persons, who were suspected of some offences. Both the prosecutor’s office and central militia directorate almost do not react to these violations: they ignore the complaints and appeals, including the complaints handed by me, the chairman of the commission of the Union of lawyers of Ukraine on the protection of rights of advocates.

The facts of the illegal detention, exertion of physical and psychical pressure upon the detained, violation of conditions and terms of holding in custody are still rather frequent. The atmosphere of malevolence towards advocates is artificially created. The professional activities of advocates are purposely impeded.

The advocates are admitted to the militia precincts, where their clients are kept, only with special permission and various formalities. Besides, the access to the clients is given not at once, as the law demands, but after some time. In the course of investigation of resonant cases the attempts are made of discrediting advocates, they are interrogated as witnesses in order to debar them from their functions. As a result, many advocates are scared, and that makes the negative influence on the quality of the defense.

These facts, in our opinion, evidence on the unsatisfactory fulfillment in Crimea of Article 29 of the Constitution of Ukraine and Article 5 of the European Convention on the protection of human rights and fundamental freedoms, which guarantee the right for personal immunity.

In what follows I will describe several stories confirming this opinion.

On 1 June 2002 the corpse of citizen Lomanov was found in the yard of the Gvardeyski settlement hospital. Citizen Gadiuchkin was detained on the suspicion of the murder. He was detained in his house in the settlement of Gvardeyski. The detained had no bodily injuries except an insignificant bruise on his face. After the detention the militiamen applied torture to Gadiuchkin. They handcuffed him, put a metal pipe under his elbows, hanged him between the backs of two chairs and beat him. A forensic expert fixed the bodily injuries; his conclusion was attached to the materials of the case. The complaint to the prosecutor, handed by advocate A. Nepomniashchiy, was not satisfied.

In July 2003 the officers of the Bakhchisaray town militia directorate detained minors Zenkov, Storozhuk (18-years-old) and Korabelnikov, who were suspected of a rape and premeditated murder. They were detained on the basis of a protocol about an administrative offence, according to which the minors were arrested for 15 days for petty hooliganism. The families of the detained were not informed about that.

In the preliminary prison of the Bakhchisaray militia directorate Zenkov, Storozhuk and Korabelnikov underwent intimidation and physical violence, and were forced to sign the frank confession on the commitment of the above-mentioned grave crimes. When the advocates were admitted to the case, the detained declared that they had calumniated themselves and refused from their confession. The investigation could not find the proofs of their guilt. Besides, the expertise rebutted their participation in the rape. After the end of the 15-day administrative arrest the minors were released, and the rape and murder are not disclosed until now.

The complaints of Zenkov and Storozhuk to the prosecutor’s office were not considered, and the court resolution about the administrative arrest for 15 days was approved by the appeal court (judge A. Lesovoy).

On 30 January 2003 D. Gogulov, a Simferopol dweller, was invited by phone to room No. 14 of the Simferopol town directorate for fighting the organized crime (DFOC) for a talk. When he came there, together with his wife and advocate, the law-enforcers said that they wanted only to ask several questions, so the presence of the wife and advocate was not needed. Yet, after the wife and advocate went away, the militiamen handcuffed Gogulov and passed him to the DFOC officers from Dnepropetrovsk. Gogulov was transported to Dnepropetrovsk, where he was held in custody for several days without any registration and was regularly beaten. When the law-enforcers made sure that Gogulov was innocent, they released him. The prosecutor’s office ignored Gogulov’s complaints (advocate A. Safonov).

G. Bazhan, an inhabitant of Evpatoria, on 20 July 2003 was detained at the railway station in Simferopol by the officers of railway militia in the framework of the ODA connected with the struggle against the illegal drug traffic. The detention procedure was not observed, and Bazhan’s relatives were not informed about it. On the same day the woman was convoyed to Kyiv, where, on 21 July, she was put under the administrative arrest according to Article 263 of the Administrative Code by order of the head of the railway militia. Only three days later the investigating officer compiled the protocol of G. Bazhan’s detention on the basis of Article 106 of the Criminal-Procedural Code of Ukraine. Yet, the next day the judge of the Solomenskiy district court of Kyiv refused to issue the sanction for the arrest, and Bazhan was, at last, released.

The cases are not rare, when the access of advocates to the detained is purposely impeded.

The following example is very illustrative. Advocate A. Gnezdov, who defended V. Lutyev, the editor of an Evpatoria newspaper, more than once came across the obstacles in the access to his client, who was suspected of the preparation of murder of MP Kotliarevski.

So, on 14 November 2002, after the court sitting in the Tsentrlalny district court of Simferopol, when the term of Lutyev’s detention was prolonged up to nine days, the head of the investigation department of the prosecutor’s office gave the permission for the meeting with the detained. In an hour the advocate came to the militia directorate and phoned to the preliminary prison. The officer-on-duty did not let him inside the prison under the pretext that, by the order of the head of the prison, advocates were not permitted to the prison in evening, although officially the workday of the prison finished on 21:30.

In the morning of the next day the advocate came to the militia directorate again, and again he was not admitted to the preliminary prison. Senior lieutenant Gnatko explained that the head of the prison was absent, and they needed the head’s personal permission to admit the advocate to his client. Then the advocate turned to A. Protsenko, the head of the Simferopol directorate, who signed the permission issued by the prosecutor’s office. In spite of this the advocate could not get to the preliminary prison. He again turned to the prosecutor’s office with the complaint. From the prosecutor’s office he returned to the preliminary prison, but the prison head, who had already come, refused to let the advocate in under the pretext of the arrival of a convoy and proposed to come in the afternoon. The advocate could not come to the prison until evening, since he took part in court consideration of another case. Yet, the access of advocates to the prison was prohibited after 17:00, as well as on two next days: Saturday and Sunday. Thus, the militia officers brutally violated the constitutional rights of the detained and the advocate (Article 48 of the Criminal-Procedural Code of Ukraine).

Advocate L. Lubina (Simferopol) got the commission to defend E. An, who had been detained in Czechia and had to be extradited to Ukraine (the advocate was invited by An’s relatives). The advocate solicited for the permission to familiarize with the materials of his criminal case. M. Balakhonov, an investigator of the prosecutor’s office of the Crimean Republic refused to satisfy the petition, since, according to his words, “… the investigation had no information that An invited this advocate or empowered other persons to do that”.

Advocates and their clients frequently experience pressure, threats and blackmail.

Yalta advocate V. Muzychenko defended L. Agibalov and L. Shmigelskaya, who were accused of the commitment of the crimes envisaged by Articles 222 part 1 and 366 part 1 of the Criminal Code of Ukraine. The preliminary investigation of this case was carried out by D. Holitsyn, an investigating officer in charge of especially important cases of the Crimean militia directorate. The investigation was conducted on the low professional level, with brutal violations of laws. The investigator even did not prolong the term of the investigation, which had expired on 1 July 2002. Advocate Muzychenko more than once pointed out these violations in his petitions.

The advocate’s position in this case was very principal, so the investigator and detective L. Mamiev repeatedly threatened him and his clients. As a result of this pressure Agibalov and Shmigelskaya even tried to resign the advocate’s services. In that way their right for defense was brutally violated. The advocate seriously doubted his safety.

Besides, Yu. Anisimov, the head of the Yalta district DFOC, suddenly demanded from the head of the juridical consultation, where Muzychenko worked, to present the financial reports concerning the activities of advocate Muzychenko for the eight months of the current year. The DFOC officer could not explain why this check was necessary and how it was connected with the tasks of the DFOC stipulated by law. He also did not provide any guarantees of confidentiality. What connection can exist between the organized crime and the probable violations of the rules of reporting by an advocate? Why the reports of just this advocate and during the investigation of just that case were checked? Why, after all, the tax militia did not do that?

According to Article 22 item 2 of the Law of Ukraine “On the organizational-legal grounds of fighting with the organized crime”, it is prohibited “to use the special squads for fighting with the organized crime for the fulfillment of the tasks, which are not related to the competence of these squads by the operating laws of Ukraine”. So, we regard this check as an obvious attempt to punish the advocate for his principal position in the criminal case. We were sure that the prosecutor’s office would take the appropriate measures.

Yet, to our great surprise, the Crimean prosecutor’s office communicated (outgoing No. 04/3-618, ingoing No. 02/10 of 17 October 2002) that the check of advocate’s reports had no connection with the investigated case, that the advocate did not complain and was not going to complain to anywhere.

Advocate A. Shekhovtsov (Simferopol) also turned to us. He told that during the recent years he had been periodically summoned to the main militia directorate, where he had been informed about the institution against him of criminal cases after the complaints handed by citizens Kopanets, Dolgov, Karatayev and others, who blamed the advocate for the extortions committed against them. During the talks in the militia directorate the officers threatened the advocate and hinted that it was possible to accuse him of the storage of ammunition and narcotic drags.

Shekhovtsov believes, and we agree with him, that these events are connected with the fact that the advocate renders the legal aid to MP L. Mirimskiy and represents his interests in several claims against some top officials of the Crimea.

The investigation department of the militia directorate informed us that no criminal cases had been started against the advocate, but refused to explain what really happened with him.

The Commission for the protection of rights and legal interests of the members of the Union of advocates of Ukraine and the Crimean collegium of advocates more than once demanded to institute the criminal case and to bring to responsibility the officers of the Kerch town militia directorate, who had attacked advocate Shevchuk during the fulfillment of his professional duty. On 27 March advocate Shevchuk visited the preliminary prison, where, from 14 to 16 p. m., he worked with his clients, who were kept in the prison. When the advocate was talking with one of the clients, E. Aliev, the head of the preliminary prison, and Marinin, an officer of the department for struggle with the illegal drug traffic, rushed to the room. The officers insulted Shevchuk and, threatening with violence, demanded to give them the documents connected with the criminal cases, on which the advocate worked. Shevchuk categorically refused to fulfill these demands; then the officers leaded the client away and locked the advocate in the room. Some time later the door was unlocked by another militiamen, and the advocate was coercively driven out from the prison.

Immediately after that advocate Shevchuk handed the complaint to the town prosecutor’s office and turned for medical aid. He got to the neurosurgery ward of Kerch town territorial medical establishment No. 1 with the diagnosis “focal affection of the cerebral brain as a result of a stress”.

Naturally, we put the question about the institution of the criminal case in the accordance with Article 397 part 2 of the Criminal Code of Ukraine. After some official circumlocution the town prosecutor’s office refused to start the criminal case; the prosecutor’s office of the Crimean Republic cancelled that decision at first, but later agreed that there had been nothing unlawful in the outrageous aggression against the advocate on the side of the militiamen.

E. Kulikova was a suspected in the criminal case after part 1 Article 162 or the CC. Her case was investigated by T. Alimov, an investigator of the prosecutor’s office of the Tsentralny district of Simferopol. On 8 August Kulikova’s advocate A. Gnezdov was summoned to the investigating officer, who told him and his client that the resolution had been issued about bringing Kulikova to responsibility as an accused.

On the basis of item 1 Article 48 of the Criminal-Procedural Code, the advocate presented the petition, in which he asked to give him the opportunity to familiarize with the case materials, on which the accusation was grounded. Yet, the investigating officer refused to satisfy the petition and, referring to Articles 218-219 of the CPC, said that the advocate would have the right to study the materials only after the end of the investigation. Thus, the investigator impeded the legal professional activities of the advocate. On 4 September 2003 the advocate handed the appeal about the institution of the criminal case against the investigating officer in accordance with part 2 Article 397 of the CC for impediment to the legal activities of an attorney committed by a state officer with the use of service authority. The result was “usual”.

As a result of the check of the documents of the company “Yantarny” (the Simferopol region) in December 2002, the tax administration issued the decision about the collection of more than 224 thousand hryvnas. The administration of the company did not agree and lodged the claim to the economic court of the Crimean Republic. After that the tax militia began the real terror against the workers of the company “Yantarny”. Although the economic court had satisfied the claim, the tax militia continued the investigation of the case; the tax officers conducted interrogations, but refused to present the copy of the resolution on the institution of the criminal case.

On 19, 21 and 23 May tax officers Kornienko, Viatkin and Bulgakov entered by force the house of citizen P. Fadeev, a dweller of the Bakhchisaray district, where they conducted searches, seized and destroyed a part of property. They did it without the court resolution, without the grounds confirmed by court and even without the compilation of protocol. The complaint was handed against the actions of the offenders.

The terms and conditions of holding in custody are violated.

As early as in 2002 the head of the Crimean directorate of the State penitentiary department turned to us asking to denounce the behavior of advocate D. Protasova, who had demanded to execute the court decision about the release of her client V. Smurygina.

It was established that the demand was based on the incorrect interpretation of criminal-procedural law, since the advocate acted in the framework of this law. At the same time, many cases were observed, where, through the fault of the administration of preliminary prisons and the penitentiary directorate, the condemned stayed in custody for the terms longer than the term stipulated by law.

It is known that the last part of Article 156 of the CPC of Ukraine directly prescribes to the head of a preliminary prison: “… to release the accused from custody… on the day of expiration of the term of incarceration, if there is no court decision about the prolongation of the term stipulated by parts 1, 2 and 6 of this Article”. This plain and unambiguous legal provision is frequently not obeyed.

For instance, citizen O. Lialechkin, who was accused after Article 86-1 of the CC of Ukraine (version of 1961), was not released from the preliminary prison after the expiration of the term of holding in custody, in spite of the petition of advocate N. Rozhkov and his appeal to the prosecutor’s office of the Crimea.

V. Rybchenko, who was accused according to Article 94 of the CC and whose case was investigated by Krasnoperekopsk district militia directorate, also was not released in proper time, despite the expiration of the prescribed term of preliminary imprisonment and the petition on the release lodged by advocate A. Yatsenko.

Similar violation of law was committed toward V. Raksh, accused after part 2 Article 142 of the CC of Ukraine, and other citizens. The administration of the preliminary prison and the workers of penitentiary department groundlessly assert that in such situations not the CPC prevails, but Order No. №38-дск of the State penitentiary department of Ukraine of 23 March 2000 “On the approval of the Instruction on the work of departments (sections, groups, units) for special registration of reformative-labor establishments”. The fulfillment of the provisions of this Order may not contradict the demands of law, in particular, Article 156 of the CPC, since the law has the supreme juridical force, to say nothing about the role of the prosecutor’s office.

In April 2002 V. Shakun was arrested in Simferopol. Shakun was born in 1956, he is an invalid of the 1st group, has the permanent place of residence, family and three children, among them one minor. Shakun suffers from a cerebral brain disease as a result of numerous cerebral brain traumas, the disease is accompanied with frequent fits and losses of consciousness, which is confirmed by documents. For more than 18 months this invalid is hold in custody. In August 2003 his criminal case was returned by court for the additional investigation because of the essential drawbacks, but the preventive measure was not changed.

Shakun claims that the medical aid is not rendered to him in the Simferopol preliminary prison, that there is no medical drugs, equipment and competent doctors. More than 30 times he turned to doctors, two times he was treated in the prison hospital, in May-June he got the consultation of the doctors of the Semashko Republican clinical hospital. According to the conclusion of the specialists, Shakun needs the inpatient treatment in the special ward. In July the prosecutor’s office of the Crimea ordered the administration of the preliminary prison to send Shakun for the inpatient examination and the examination by the forensic experts. The order was not fulfilled. In July 2003 the Kievskiy district court issued the decision to conduct the forensic expertise of Shakun’s health and to analyze the possibility of holding him in the prison and the ability of the prison medical unit to render him the necessary aid. The expertise was carried out on 4 September 2003, but the defense was not informed about the results.

Shakun and his advocate more than once turned with the petitions about the change of the preventive measure from incarceration to the written undertaking not to leave a place. All petitions were rejected (advocate A. Lesovoy).

Advocates regularly receive the complaints from the persons, who stay in the Simferopol preliminary prison, about the prohibition of food parcels (the prisoners are feed once per day, and the food is very meager), rendering of various services for money, unsanitary upkeep conditions, overcrowding, lack of air, refusal to provide the paper for applications, etc.

M. Toptun, ill of TB, accused after Article 185 part 5 of the Criminal Code of Ukraine, for almost three years stays in the cell, where 20 men live on 20 square meters.

A. Petrov, a client of advocate A. Volodina, who is accused according to Article 149 part 2 of the CC of Ukraine, was detained for the term up to 10 days (28 August – 8 September) on the basis of Article 165-2 part 9 of the CPC. The administration of the preliminary prison refused to accept the food parcels for him. The motive was that Petrov allegedly was not detained in compliance with Article 106 of the CPC and was not arrested, so he was nourished one time per day with the violation of all existing norms.

The right of citizens for court consideration of their cases in proper time is violated.

The consideration of the criminal case on the accusation of G. Kalinichenko after Articles 135 and 165 of the Criminal Code of Ukraine, which was started in 1997, is still not finished. Since 1998 the case has been considered by the Tsentralny district court of Simferopol, more than once it was returned for the additional investigation.

The criminal case of Chernivtsy dweller E. Lugovoy (Article 101 part 1 of the CC) was not considered since 1998. In 2000 the case was passed to the Razdolnenskiy district court.

Advocates also inform about the accusation tendencies in the work of courts.

For instance, the Crimean appeal court groundlessly rejected the petitions of advocates in the case on the accusation of the founders of the company “Soyuz-Viktan” of murder, and this resulted in a serious court mistake. In the course of the process the judge systematically rejected almost all advocates’ petitions, and the accused were condemned to long terms of incarceration, despite the protests not only of the defenders, but also of the prosecutor. The Supreme Court of Ukraine endorsed the complaints of the advocates, reversed the verdict and returned the case for the additional investigation, and the prosecutor’s office closed the case because of the absence of corpus delicti. The suspected stayed in custody for more than eight months. After the closure of the case the owners of “Soyuz-Viktan” moved the office of the company from the Crimea to Kyiv, and the budget of the republic lost millions hryvnas of income.

Advocates get the complaints about the violations of human rights not only in the connection with criminal cases.

For example, now the advocates, together with journalists, are occupied with the story of Tamara Minasian, a young poetess, whose life and creative activities was described by the TV company “Krym”, local and all-Ukrainian newspapers (“Kievskie vedomosti”, for example, published four articles about her). Tamara was born in Simferopol; she spent her childhood in street, tramping and begging. Now she has shelter and livelihood, but she remains a person without citizenship.

The Kievskiy district militia precinct does not deny T. Minasian‘s right for Ukrainian citizenship, since she was born in Ukraine, but they refused to give her the citizenship and, for some reasons, sent her to the consulate of the Russian Federation for the documents confirming her identity. Naturally, the representatives of Russia did not issue such documents. As a result, the talented woman stays outside the society deprived of the opportunity to earn her living.

Unfortunately, the local power organs, prosecutor’s office, court and militia do not counteract the illegal activities of the persons, who pretend to be advocates and obtrude their services. Such persons have no certificates for advocacy, their relations with citizens, courts and other organizations are accompanied with scandals and mutual accusations because of the unsatisfactory quality of their work. The citizens turn to us with the complaints, and our appeals are futile. These pseudo-advocates have no idea about the professional ethics, confidentiality, methods and tactics of work in court, as well as the sufficient legal knowledge. Many of them are not even registered as businessmen and do not pay taxes. Some of their activities are fraudulent.

For example, the so-called “advocates’ union “Femida”” exists in Simferopol for a long time. The union was not registered in the Ministry of Justice of Ukraine, as the law demands. Workers of this firm A. Zhuravkov, A. Klimenko, I. Nikulin, A. Zarubin and A. Ushakov, who call themselves advocates, have never obtained the advocate’s certificates and are not mentioned in the register of advocates of Ukraine. Somehow they manage to get the confidential information about road accidents in the Crimea and send the letters to the victims with the promise to collect in favor of the latter the moral compensation not less than 50-60 thousand hryvnas (the letters are printed on the false letterheads of the advocate’s firm), thus committing the fraud.

Moreover, the rascals from “Femida” do not content with the rascally obtrusion of the services, they also publish in mass media the announcements about the vacancies for new workers, to whom they promise to give the “advocate’s certificates”.

The prosecutor’s office found nothing illegal in these activities and refused to start the criminal case against the swindlers. We appealed against this decision to court.

Kerch lawyers V. Mironenko, N. Kononiuk and others also pretended to be advocates.

L. Belialov from Simferopol published an advertisement in a newspaper about the vacancy of an assistant of advocate in his juridical consultation. Yet, Belialov has no advocate’s certificate, so he has no right for an assistant.

Such rascally actions of the above-mentioned lawyers inflict the essential moral and material damage to the society.

Along with the violations committed by the law enforcement state organs, the drawbacks of the operating laws also do not promote the observance of human rights in our country. The Law of Ukraine “On advocates”, which was adopted as early as in 1992, needs essential changes for a long time. Six drafts of the new law were handed to the Supreme Rada (we took part in the development of one of them), but no progress is observed.

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