Court acknowledged the passivity of General Prosecutor’s office

16.11.2004

Evhen Zakharov, the Kharkov group for human rights protection

The human rights protector turned to the General Prosecutor’s office with the informational request, but got no answer. Then he turned to court, which satisfied the complaint and obliged the General Prosecutor’s office to respond to the request.

In the end of 2003 I turned with request to the General Prosecutor’s office of Ukraine, in which I asked to render me the following information:

In the reports of the US State Department on the situation with human rights in Ukraine for 2000, 2001 and 2002 it is stated, wrongly, in my opinion, that “militia and officers of penitentiary system torture and beat the detained and incarcerated”. By my observations, testimonies about beating of the accused and condemned by the officers of preliminary prisons and penitentiary establishments are rather rare, and testimonies about beating of the detained by the officers of inquiry organs are often. According to Article 40 of the Constitution of Ukraine, Articles 28, 29, 32 and 33 of the Law of Ukraine “On information”, Articles 34 and 35 of the Law of Ukraine “On printed mass media (the press) in Ukraine” I ask to give me in writing the following data.

1. Number of the officers of the organs of the Ministry of Interior of Ukraine and the State penitentiary department of Ukraine, who were condemned after Articles 365 and 373 of the Criminal Code of Ukraine in 2001 (Articles 166 and 175 in the version of the CC of 1960), 2002 and the first half of 2003, if there were the facts of condemnation, by years and articles separately. I also ask to give the data about the number of the officers of the organs of the Ministry of Interior, who were brought to disciplinary responsibility for illegal actions against the detained, and the number of the officers of system of penitentiary department, who were brought to disciplinary responsibility for illegal actions against the condemned and held in preliminary prisons in 2001, 2002 and the first half of 2003.

2. Number of the complaints against the illegal actions of the officers of the organs of the Ministry of Interior of Ukraine and the State penitentiary department of Ukraine, number of the satisfied complaints, number of the officers brought to disciplinary responsibility, number of the condemned officers.

3. Number of the cases, when Article 127 was applied to state employees. (By the data of court statistics, in the first half of 2003 courts issued 15 verdicts after Article 127 of the CC of Ukraine (application of torture)).

4. Number of the sanctions issued by prosecutors in accordance with part 3 of Article 263 of the Administrative Code of Ukraine (ACU) about administrative detention for the term more than three days and the number of cases of administrative detention, when a prosecutor was informed about the detention for the term more than three hours. (According to Article 263 of the ACU, “a person, which violated the rules of circulation of narcotic drugs and psychotropic substances, can be detained for the term up to three hours for compilation of protocol, and, if necessary, for identification of the person, conduction of medical examination, clarification of circumstances of acquisition of the confiscated narcotic drugs and psychotropic substances and their analysis – for the term up to three days with writtem notification of prosecutor in 24 hours from the moment of detention, or for the term up to ten days after the sanction of prosecutor, if the offender has no documents identifying him).

I received the advice of delivery on 8 January 2004. Yet, I got no response during six weeks, so, on 9 March I against turned to the General Prosecutor with the following letter:

“According to Articles 32, 33 and 34 of the Law of Ukraine “On information” I ask to inform me in writing whether you are going to satisfy my informational request, the copy of which I am attaching to this letter, and if you would not satisfy my request, then explain the reasons, please. The written response is needed for handing the appeal against the refusal in compliance with the operating laws”.

On 19 March I received the advice of delivery, but I again got no answer. I waited for three months and then, on 19 June, I turned to the Pecherskiy district court with the complaint, according to chapter 31-A of the Criminal-Procedural Code, against the passivity of the General Prosecutor’s office of Ukraine.

The court consideration was appointed on 2 August, about which I was informed by a subpoena sent to me in a recommended letter with the advice of delivery. At the trial the representative of the General Prosecutor’s office insisted that the General Prosecutor’s office had not received the first request, the second one had been lost, and they were carrying out the service investigation for its search. I demonstrated the both advices of delivery signed by the same person. After that judge Zhanna Bernatska satisfied my complaint and obliged the General Prosecutor’s office to respond to the request.

It is noteworthy that the request was written not on the blank of the Kharkov group for human rights protection, but on a usual sheet of paper, since our court distinguishes between the requests handed by physical and official persons. If I would turn with the request as an official person, then the court would not recognize my right to information (as the right of a physical person) as violated. I faced such situation three years ago, and all court instances – the Pecherskiy court, Kyiv Appeal Court and the Supreme Court of Ukraine – refused to consider the case per se. So, the only way out is to turn to the European Court, and I am going to do that. Our judges believe that only physical persons may be subjects of the right to information. Well, I hope that the European Court will make them change their mind.