Access to information regarding illegal acts of law enforcement bodies from offices of the Prosecutor
Torture and cruel treatment during detective inquiry and criminal investigations remain one of the worst human rights violations in Ukraine. Supervision over the legality of the activity of law enforcement bodies is undertaken by the offices of the Prosecutor. In order to evaluate the effectiveness of such supervision, access to information which is at the disposal of the prosecutors offices is vital. For this reason, one of the authors of this article sent formal requests for information on 30 December 2003 to the General Prosecutor of Ukraine and to the Prosecutors offices of 27 regions of Ukraine (the Prosecutor of the Autonomous Republic of Crimea (ARC), of the cities of Kiev and Sevastopol, and of 24 regions). The request to the Cherkasy region is given below as an example.
20 December 2003
To the Prosecutor of the Cherkasy region
Shevchenko Boulevard, 286
I am one of the Chairs of the non-governmental organisation “The Kharkiv Human Rights Protection Group” (KHRG). The organisation prepares analytical surveys for its journal “Prava Ludyny” (“Human Rights”) on the situation as regards human rights in Ukraine, in particular, issues related to the lawfulness of activities of law enforcement officers of the Ministry of Internal Affairs (MIA), as well as those of the State Penal Department. In US State Department Country Reports on Human Rights Practices on Ukraine for the years 2000, 2001 and 2002, it is claimed, in my opinion mistakenly, that “Police and prison officials tortured and beat detainees and prisoners.” From my observations, claims made by those awaiting trial or convicted that they were beaten by the staff of pre-trial detention centres or of penal institutions are relatively rare. Reports, however, of beatings of those detained by officers of detective inquiry units are quite frequent. In accordance with Article 40 of the Constitution of Ukraine, Articles 28, 29, 32, 33 of the Law “On Information, Articles 35, 36 of the Law “On Printed Mass Communication Media (the Press) in Ukraine”, I would ask you to provide us with the following information in written form:
1) the number of law enforcement officers in your region who were convicted under Articles 365 or 373 of the Criminal Code of Ukraine (Articles 166 and 175 in the Criminal Code of 1960) in 2001, 2002 and the first half of 2003. If such offences took place, please specify in which year and under which Article.
2) the number of complaints made concerning illegal actions by law enforcement officers in your region, against whom disciplinary charges were brought for unlawful treatment of detainees; the number of complaints made concerning unlawful actions by penal institution officers in your region against whom disciplinary charges were brought for unlawful treatment of prisoners serving a sentence on your territory, as well as of those held in pre-trial detention centres in 2001, 2002 and the first half of 2003.
3) the number of complaints made regarding wrongful activities of law enforcement officers of the MIA of your region, as well as those of the State Penal Department in your region, the number of complaints satisfied and the number of officers against whom disciplinary or criminal charges were brought, and the number of convictions.
4) The number of warrants issued by prosecutors offices in accordance with Part 3 of Article 263 of the Administrative Offences Code (OAC) of Ukraine for administrative detention for a period of over three days; the number of cases of administrative detention of over three hours which were reported to the prosecutor. (In accordance with Article 263 of OAC “individuals who have violated regulations related to the use of drugs or psychotropic substances can be detained for up to three hours in order to prepare a protocol and, where necessary, to establish identity, undergo a medical examination, ascertain how the drugs or psychotropic substances were obtained, and to examine the latter. They can be detained for up to three days where the prosecutor has been informed in writing within 24 hours of the moment of detention, or for a period up to ten days with a warrant from the prosecutor if the offenders do not have documents confirming their identity.
We would ask that you send the information requested to the following address:
Yevhen Yukhimovich Zakharov
61002 Kharkiv, Ivanova Street 27, flat 4
Thank you in advance for your cooperation.
Co-Chair of the Kharkiv Human Rights Protection Group, Chief Editor of the bulletin “Prava Ludyny” [“Human Rights”], Member of the Directorate of the International Association ‘Memorial
In accordance with Articles 32-34 of the Law ‘On Information, requests for information must be considered by the relevant departments within 10 days and before the expiry of that period, the State body is obliged to inform the person who made the request in writing whether or not the information can be provided. Furthermore, an explanation must be given for a negative response. The information requested must be provided within one month. If the information cannot be given within one month, the State body is obliged to inform of the delay, explain the reason why the information cannot be provided within this timescale, and to give a date when the information will be available.
Our request for information received no response at all, in flagrant violation of Article 40 of the Constitution of Ukraine, Articles 28, 29, 32 of the Law ‘On Information, Article 6 of the Law ‘On the Prosecutor, from the General Prosecutor of Ukraine, the Prosecutor of ARC and of Sevastopol
and the Prosecutors of 14 regions: Vinnytsa, Zhytomyr, Zaporizhye, Ivano-Frankivsk, Kiev, Kirovohrad, Luhansk, Lviv, Mikolayiv, Odessa, Rivne, Kherson, Khmelnytsky and Chernivtsi.
Only the Prosecutors of the city of Kiev and of Chernihiv region provided responses within the 10-day time period. The former sent the request for information on the Headquarters of the Ministry of Internal Affairs of Ukraine in Kiev, while the prosecutors office in the Chernihiv region wrote that the information sought was used on an ongoing fashion and was not separately collated. Nine Prosecutors offices responded within a month, with none of them providing the information requested. The Prosecutors of Volyn and Sumy regions informed that a breakdown of information as per our request was not foreseen by established procedure for statistical reporting, and recommended that we approach the General Prosecutor of Ukraine. The Prosecutors of Transcarpathia and Chernihiv regions recommended that we approach other departments, the Department of the Ministry of Internal Affairs for the Transcarpathia region and the State Department of Statistics, respectively. The Prosecutor for the Donetsk region replied that the information requested was of an official nature, and was not given to the public. The Prosecutors of Dnipropetrovsk, Poltava, Ternopil and Kharkiv regions informed that the data which we were interested in was confidential, under State protection and therefore not given to the public. The Kharkiv region Prosecutors office also recommended that we approach the regional departments of judicial administration, statistics and the State Penal Department, while the Ternopil regional Prosecutors office referred to the Order of the General Prosecutor of Ukraine No. 89 from 28.12.2002 “List of documents arising from the activity of Prosecutors bodies which contain confidential information and which are classified with the stamp limiting access ‘For official use only”.
A second request for information, with exactly the same questions, was sent on 17 March 2004 to the 17 bodies who had not responded. We received 8 answers. The Prosecutors offices of Luhansk and Mikolayiv regions provided the information sought, while those of Zaporizhye and Kirovohrad regions informed that they did not have the statistical data and reports that we had asked for and said that we should approach departments dealing with statistics. The Prosecutor of Vinnytsa region gave a succinct response that there was no procedure for keeping such statistical data and that “you have the right to approach the relevant government bodies”. The Khmelnytsky region was even more succinct: “We are unable to fulfil your request as we do not have a statistical breakdown of data on these questions”. The Prosecutors office of Kherson region refused to give the information on the basis of Part 1 of Article 37 of the Law “On Information”, since “information about the operational and investigative work of offices of the Prosecutor, the Ministry of Internal Affairs, the Secret Services, and the work of detective inquiry units and the court and its publication could interfere with investigative operations, detective inquiry work and criminal investigations. The Prosecutors office of the Chernivtsi region stated that, given that the offices of the Prosecutor are part of a centralised whole, we should approach the General Prosecutor.
We never received any response from the General Prosecutor, nor from the Prosecutors of the Autonomous Republic of the Crimea and Sevastopol, Zhytomyr, Ivano-Frankivsk, Kiev, Lviv, Odessa nor Rivne regions.
Thus, we received 19 answers, of which only two gave the information requested. The rest of the responses turn down our request for the range of reasons outlined above. We are convinced that these refusals are a direct violation of parts 3 and 4 of Article 5 and part 5 of Article 6 of the Law of Ukraine “On the Prosecutor”.
The Order of the General Prosecutor of Ukraine No. 89 from 28.12.2002 “List of documents arising from the activity of Prosecutors bodies which contain confidential information and which are classified with the stamp limiting access ‘For official use only was of great interest to us and we approached the Ternopil regional Prosecutors office with a request to send us this document, however received no reply. With some difficulty we did however succeed in tracking down this document, and given that it is not easily available to ordinary citizens, we are publishing it here in this issue (cf. below). From this Order it would appear that, on the basis of part 4, any information of an analytical or generalising nature, which is precisely the information which is of interest to the public, can be declared secret “at the suggestion of the initiator”. Who exactly is meant by “the initiator” has not yet been ascertained. Nor is it clear what is meant by “special information regarding disasters, accidents and other emergencies” which could be made secret under part 6 of this List. All of this leads to violation in the first instance of Part 5 of Article 6 of the Law of Ukraine “On the Prosecutor”, and in general violates the very principle of transparency of the activities of law enforcement bodies, which is one of the main standards, recognised internationally, of human rights with regard to the activities of law enforcement bodies. We therefore approached the Ministry of Justice with a request for information as to the registration of Order No. 89. In our opinion, this order violates human rights and fundamental liberties, and the Ministry should therefore on this basis have refused to register it. We received a reply from the Ministry that in accordance with the Decree of the President of Ukraine No. 493 from 21.05.98, the General Prosecutor of Ukraine is not a body whose normative acts are subject to state registration in the Ministry of Justice.
In this way, the General Prosecutor has done everything to ensure that the activities of its offices should be kept entirely secret from society whose citizens it is supposed to work to protect. The very fact that the Office of the General Prosecutor did not respond at all to our request for information not only shows that it is prepared to ignore legislation regulating its activities, as well as legislation on information and approaches from the public, but also indicates a total lack of respect for its own citizens.
It should be noted that the amendments to Article 30 of the Law “On Information”, passed by the Verkhovna Rada on 11 May 2004, prohibit classifying as confidential any information which is the property of the State “concerning natural disasters and catastrophes”, as well as information “concerning the situation with human rights and civil liberties, as well as information about violations of such, and about unlawful activities by State bodies, bodies of local self-government, their officials and employees.” Therefore, order No. 89 from 28.12.98 needs to be reviewed.
If one compares answers from offices of the Prosecutor this year with responses to similar requests sent in 2001, it can be concluded that the situation as regards openness of the activities of the Prosecutor has worsened. In 2001 we received 8 responses, answering, at least partially, our questions. 11 offices of the Prosecutor recommended that we approach other departments (5 of these recommending the General Prosecutor as higher body overseeing the system of offices of the Prosecutor). Only two Prosecutors offices – of ARC and of Sevastopol – classified the information requested as OU (“For official use only”. At that time only 4 regional offices of the Prosecutor did not reply at all. It can be seen, therefore, that the number of occasions where the requested information was classified OU has tripled, the number of offices of the Prosecutor who did not answer at all has doubled, and finally the number of regional offices of the Prosecutor who did not fulfil our request for information is now four times greater.
It should be added that the General Prosecutor turned down our similar request for information in 2001 on the grounds that “in the statistical reports of the General Prosecutor such data is not collected” and recommended that we approach the Ministry of Justice. In response to our complaint to the General Prosecutor that its own regional offices, who answer to the General Prosecutor, are either not replying to our request for information at all or are not providing the information, the General Prosecutor informed that the data sought was compiled not only by offices of the Prosecutor, but by the Ministry of Internal Affairs and the Ministry of Justice, and then sent to the State Department of Statistics, and that we should, therefore, approach the latter. In its turn the State Department of Statistics informed that “based on the general number of individuals convicted under Articles 166, 175 of the Criminal Code of Ukraine (in the 1960 edition), it is impossible to identify the number of employees of the Ministry of Internal Affairs or of the Prosecutors office.” Thus, on the one hand, it is clear that the information sought is compiled in the offices of the Prosecutor yet, on the other, the offices of the Prosecutor and in particular the General Prosecutor are anything but eager to pass this information on to the public. This in its turn can lead to an even greater increase in violations of the law and to still worse consequences for the average citizen.
In view of the above, one of the authors of this article in their capacity as Director of ZIA TsGK (???) has made a formal complaint to the courts about the inaction of the General Prosecutor of Ukraine, the Prosecutor of ARC, the office of the Prosecutor of Sevastopol, and of the Prosecutors of the Lviv and Odessa regions, as well as a complaint about the unlawful activities of the Prosecutors office in Dniepropetrovsk. Readers of “Freedom of Speech and Privacy” will be able to read about the outcome of the court hearing in a future issue.
The General Prosecutor of Ukraine
“List of documents arising from the activity of Prosecutors bodies which contain confidential information and which are classified with the stamp limiting access ‘For official use only
1 Organisational and Directive documents (orders, instructions, directives) of the Directorate of the General Prosecutor of Ukraine, the Prosecutor of the Autonomous Republic of the Crimea, the Prosecutors offices of the regions, of the cities of Kiev and Sevastopol, the military Prosecutors of the regions as well as of the Army and Navy of Ukraine (at the suggestion of the initiator).
2 Documents relating to human resources (personal files of officials of Prosecutors offices).
3 Papers, reports, information sheets, methodological recommendations as to carrying out supervision by the Prosecutor over adherence to the law in the course of operational – investigative activity (if in its content there is no information which constitutes state secrets.)
4 Generalisation of information, analyses, overviews (at the suggestion of the initiator).
5 Documents with the Prosecutors reaction (at the suggestion of the initiator).
6 Special information about disasters, accidents and other emergencies, which have led to casualties or damage to property.
7 The record for individuals given access to state secrets (after it has been filled in)
8 Correspondence with offices of the Prosecutor about issues involving the preparation by officials of the Prosecutors office of permits giving access to state secrets.
9 Orders giving officials of the Prosecutors office access to state secrets.
10 Lists of officials entitled to give access to state secrets (if in its content there is no information which constitutes state secrets.)
11 Other documents which were prepared using confidential information.
The Secretariat of the General Prosecutor of Ukraine
Confirmed by the Order of the General Prosecutor of Ukraine
28 December 2002 No. 89
 Detective inquiry (“diznannya”) is used for operational activities at the stage where the law enforcement officers are still determining whether a crime has taken place and if so, who is responsible. Criminal investigation (“slidstvo”) is used when a particular person has been charged and the case for the prosecution is being prepared.