Права Людини в Україні. Інформаційний портал Харківської правозахисної групи
версія для друку
12.12.2001 | Yuri Motorny, Poltava
The right to a fair trial

Cop on duty as an interpreter of the Constitution


The right for the legal aid is fixed in Article 59 of the Constitution of Ukraine, and any limitations of this right are inadmissible. Moreover, in Ukraine, this is repeatedly declared to be turning into a law-abiding state. Besides, Ukraine took the obligation to give top priority to human rights when considering any question. That is why it is especially sad that, while analyzing citizens’ complaints and trying to render then legal aid, we often come across with the violations of human rights by law-enforcing organs, the very organs, which must protect the law. For example, it is quite not understandable when law-enforcers restrain the right for legal aid, if a citizen had misfortune to be brought to a precinct. Problems with advocates appear, when a citizen, who has a contract with an advocate, is summoned to a precinct for giving some explanations. Very often the advocate is just taken bodily out of the precinct or some office inside it. Sometimes the advocate is first asked: ‘Which right have you to be present at our talk?’ or simpler: ‘We have not summoned you!’ Any explanations on the side of the advocate that he has a contract with the citizen, that his client asked him to be present or references to the Constitution as a rule bring no results. At best the advocate is advised to complain to the prosecutor’s office. At the same time everybody knows that the interrogated person experiences psychological pressure and threats. Let us recall, for instance, the event in Kyiv, when a detained officer of tax inspection jumped out from a high window of the district precinct. The interrogation may last long, and the interrogated has no guarantee that he will not be detained for a few days. By the way, why most people are summoned to precincts in the end of workday? A similar situation also happens when an eyewitness of a criminal case is summoned. This is not a consecutive attitude, when, on the one hand, the investigating officer explains to the citizen his responsibility for refusal giving testimony of giving false testimony and, on the other hand, prohibits the advocate to be present. As everyday practice shows, there are plenty of cases when a citizen is first interrogated as a witness, and then as a suspect! If one complains t the district militia department or the prosecutor’s office, then, approximately in a month, one will get a formal answer. Under such circumstances most citizens prefer not to complain – nobody believes that someone at the top will pay attention to the neglect of citizen’s rights. In my opinion, these violations happen because law protectors (militia and prosecuting officers) are sure that the right for the legal aid within a precinct have only the accused or suspected. Even the General Prosecutor of Ukraine in his recent TV interview told that MP O. Moroz had no right to refuse to give testimony, when his advocate was not present. So people at lower levels of the law-enforcing hierarchy are sure that the interrogated may do without their advocates, from the very beginning of the case or when an advocate comes in the course of the investigation. The cop on duty will do anything what he can to prevent the meeting of the detained and his advocate. Various pretexts are used for this: the absence of a permission of from the precinct head or the officer, who actually detained the suspect, the absence of the room for receiving the advocate, etc. At best, the advocate will be later informed that his complaint was considered and the cop on duty is reprimanded. Yet, if the cop on duty permits the advocate to pass, he will have much more serious service problems. It is easy to guess, what will he prefer…

The right for the legal aid is violated almost always in administrative cases. For example, citizen P. was summoned to a precinct. At first he gave explanations of certain actions, then his residence was searched at his presence, then he again was taken to the precinct, where the protocol was compiled about an administrative offence (although during the alleged offence he was kept in the precinct). P. was forced to write the explanation, in which he framed himself, was kept in the precinct overnight, and then brought him to trial promising to punish him by a 10-day arrest. At the court session, the judge, unlike the militia, permitted P.’s advocate to be present, and this completely changed the verdict: P. was released. Unfortunately, few judges act in such a way. A more often script is such: the accused declares that he has an oral agreement with an advocate and arguments that the accusations are groundless. Yet, the judge does not postpone the session until the meeting of the accused with his advocate and takes a decision to apply administrative arrest. Cases happen when militiamen have the right to detain a person according to Article 115 of the Criminal-Procedural Code, but, instead, they compile a protocol for petty hooliganism, that may complicate the case later. It is senseless to detain one for robbery or other felony and write in the protocol that he is guilty of petty hooliganism.

Complications also happen, when meetings of a suspect and his advocate are arranged. The permission of a judge for such a meeting does not guarantee that the meeting will actually take place. Well-trained officers always find some pretexts that will make the advocate to wait for hours of nasty weather before the closed gates of the preliminary prison. The advocate may be information that his client does want to see him, that there is no suitable room for the meeting, that the arrested had been taken to reforming labor and nobody knows, when he returns.

All these examples testify that law-enforcers, like sumo wrestlers, try to oust advocates from the ring. At the same time the very presence of an advocate (or, according to the new regulations of the Constitutional Court, an individual related to jurisprudence) creates the moral atmosphere, when rudeness and maltreatment of the suspected by militia is excluded, when the suspected does not regard himself helpless, to say nothing about the fact that the presence of an advocate would prevent most complaints on activities of law-enforcers. The consideration of such complaints takes a lot of the valuable time from the corresponding officers, and this time they could spend fighting against crime. The strict obedience of the rules concerning legal aid does not require much expenditure. For this the corresponding agency legal acts are needed, following which law-enforcers would be obliged to provide citizens absolute execution of their constitutional right for legal aid. Undoubtedly, the courts must have their hand in providing this right. Many public organizations supported by various foreign and international public institutions function in Ukraine. Having united their efforts, experts from these organizations could systematize the needed excerpts from the Constitution, Criminal-Procedural Code and Administrative Code that treat the rights of citizens in their relations with the corresponding organs. These recommendations should be placed at strategic points: precincts, reception offices, coolers, preliminary prison, etc. Ukrainian citizens should know their own rights and demand militia and prosecutor’s office to follow these rights to the letter. If a country declares the top priority of citizen’s rights, then it must guarantee the fulfillment of these rights, without waiting for the prods from Europe.

Рекомендувати цей матеріал
При передруку посилання на khpg.org обов'язкове. Думки і міркування авторів не завжди збігаються з поглядами членів ХПГ

забув пароль




надіслати мені новий пароль