The Prosecutor’s Office of the Donetsk Region disregards the norms of the Constitution of Ukraine

To the Prosecutor General of Ukraine
01601, Kyiv-GSP, 13/15 Riznytska St.

European Committee
for the Prevention of Torture

Open letter
regarding the disregard for the norms of the Constitution of Ukraine by the Prosecutor’s Office of the Donetsk region

Dear Prosecutor General of Ukraine!
I am appealing to you regarding the actions of the Prosecutor’s Office of the Donetsk region, which contradict the norms of the Constitution of Ukraine and contain signs of a number of crimes. Despite numerous appeals from our organization regarding the need to take action in accordance with the court decision that has entered into force, regarding the recognition as illegal the detention by employees of the Mariupol Department of the Directorate for Combating Organised Crime of the Main Directorate of the Ministry of Internal Affairs of Ukraine in the Donetsk region of citizen O., the Prosecutor’s Office of the Donetsk region insists on its right to act in defiance of the court decision.
Citizen O. was detained by employees of the Mariupol Department of the Directorate for Combating Organised Crime of the Main Directorate of the Ministry of Internal Affairs of Ukraine in the Donetsk region and subsequently appealed to the court regarding the legality of his detention. By the ruling of the Voroshylovskyi Court of Donetsk dated 18.06.2009, his detention was recognised as illegal. The Court of Appeal of the Donetsk region recognised this decision as correct and, by its ruling dated 11.08.2009, left it unchanged.
From this moment, the court’s decision entered into force, and the prosecutor’s office should have determined the measure of responsibility for the persons who committed a criminal offence – illegal detention. After all, in accordance with Art. 371 of the Criminal Code of Ukraine
1. Knowingly illegal detention or illegal arraignment –
are punishable by deprivation of the right to hold certain posts or engage in certain activities for a term of up to five years or by restriction of liberty for a term of up to three years.
3. The actions provided for by parts one or two of this article, if they caused grave consequences or were committed for mercenary motives or in other personal interests –
are punishable by imprisonment for a term of five to ten years with deprivation of the right to hold certain posts or engage in certain activities for a term of up to three years.
Unfortunately, the Prosecutor’s Office of the Donetsk region ignored the court’s decision. Any schoolboy already knows that a court decision can only be changed by another court decision, but certainly not by an inspection by the prosecutor’s office. Yet the prosecutor’s office, after the decision entered into legal force, conducted yet another inspection of the circumstances of citizen O.’s detention and reached a conclusion opposite to the findings of the court, namely – that there is no corpus delicti in the employees’ actions. That is, there is an illegal detention, but there is no corpus delicti. This is precisely what the Deputy Prosecutor of the Donetsk region, Senior Advisor of Justice O. Nesterenko, believes.
Such actions of the prosecutor’s office contradict Art. 124 of the Constitution of Ukraine, which defines that
“Justice in Ukraine is administered exclusively by courts. The delegation of court functions, as well as the appropriation of these functions by other bodies or officials, is not permitted.
Court decisions are adopted by courts in the name of Ukraine and are mandatory for execution throughout the entire territory of Ukraine.”
But by a resolution of the prosecutor’s office, an effective court decision is reviewed (annulled), and the prosecutor’s office acts not in accordance with the court decision, but in accordance with the findings of its own inspection. Thereby, the prosecutor’s office, in the case of recognising the legality or illegality of a citizen’s detention, effectively appropriates the powers of the court, which is prohibited by the Constitution. At the same time, there are grounds to believe that the prosecutor’s office inspection was conducted carelessly and superficially. After all, citizen O. was not even interviewed during this inspection, and therefore it was based on the testimonies of only one side, the one that, according to the court decision, caused the illegal detention. It is not difficult to understand whose interests such results of a so-called inspection serve.
The court recognised the quality of the prosecutorial inspection as inadequate and noted that “the circumstances of the detention of O. by employees of the Mariupol Organized Crime Control Department, as a person suspected of committing a crime, are nothing more than far-fetched and are unfounded and illegal”.
The fact that the regional prosecutor’s office, in none of its responses to the appeals of both citizen O. and the “Donetsk Memorial”, provides any evidence or proof that would indicate that the next prosecutor’s office inspection (already after the court decision) was conducted properly, forces us to believe that this inspection was also conducted formally, and therefore in the interests of the persons guilty of the detention and beating of citizen O. Confidence in this is increased by the prosecutor’s office’s failure to provide the results of the inspection to citizen O. and their effective concealment, which, in particular, makes it impossible to appeal (if necessary) these results. Therefore, the conclusion reached in the courtroom in the conditions of the adversarial nature of the parties is ignored by the Prosecutor’s Office of the Donetsk region and is effectively cancelled and replaced by a decision, the integrity of which is highly dubious.
Such actions have the signs of a criminal offence provided for by Art. 382 of the Criminal Code of Ukraine “Failure to execute a court decision”
1. Intentional failure by an official to execute a sentence, judgment, ruling, or resolution of a court that has entered into legal force or obstruction of their execution –
is punishable by a fine of five hundred to one thousand tax-free minimum incomes of citizens or by imprisonment for a term of up to three years....
2. The same actions committed by an official holding a responsible or especially responsible position... or if they caused significant damage to the rights and freedoms of citizens, state or public interests protected by law..., –
are punishable by restriction of liberty for a term of up to five years or by imprisonment for the same term.... .
The refusal to bring to justice the persons who caused the criminal offence established by the court – illegal detention – is effectively the concealment of a crime and the protection of the guilty from criminal liability. It remains to be guessed whether the prosecutor’s office did this disinterestedly or whether it was motivated to do so.
It is worth noting that the specified actions of the Prosecutor’s Office of the Donetsk region are a violation of the norms of the European Convention on Human Rights, which our state must adhere to. I draw your attention to the fact that the response of the regional prosecutor’s office, signed by the Deputy Regional Prosecutor O. Nesterenko, testifies, in particular, to the ineffectiveness of the seminars held in the Prosecutor’s Office of the Donetsk region regarding the work practice of the European Court of Human Rights, organized by the Council of Europe. Obviously, the significant funds spent on conducting these seminars in the Donetsk region were effectively thrown to the wind, as the practical activity of prosecutorial employees contradicts the standards of the European Court.
In any case, such actions – both the illegal detention of a person and the ignoring of the court decision by the regional prosecutor’s office – have clear signs of the aforementioned criminal offences, and the Prosecutor’s Office of the Donetsk region is covering up the perpetrators from liability.

Dear Prosecutor General of Ukraine!
I ask you to determine your position regarding the actions of the Prosecutor’s Office of the Donetsk region, aimed at non-execution of the court decision and brutally ignoring this decision.
I ask you to ensure that the Prosecutor’s Office of the Donetsk region immediately takes measures that follow from the court decision on the illegal detention of citizen O.
I consider it necessary to emphasise that if you decide to send this letter for inspection to the Prosecutor’s Office of the Donetsk region (as has repeatedly happened before), then such a step of yours would contradict Art. 7 of the Law of Ukraine “On Citizens’ Appeals”, which clearly defines
“It is forbidden to send citizens’ complaints for consideration to those bodies or officials whose actions or decisions are being appealed.”
Given the social importance of the problem of covering up illegal actions of the police by prosecutor’s office employees, I am appealing to you with an open letter. This letter will also be sent to the Human Rights Ombudsman and to the European Committee for the Prevention of Torture. I assure you that your response to this letter (or lack of response, or sending the letter for inspection to the Prosecutor’s Office of the Donetsk region) will be widely publicised by us.

I ask you to send your response within the term defined by law to the address
PO Box 4836, Donetsk, 83092

Attachment. Copy of the response of the Prosecutor’s Office of the Donetsk region dated 16.04.2010.
Copy of the Ruling of the Voroshylovskyi District Court of Donetsk dated 18 June 2009
Copy of the Decision of the Court of Appeal of the Donetsk region dated 11 August 2010.

Sincerely,
Oleksandr Bukalov
Chairman of the Board of “Donetsk Memorial”