TO: Prosecutor-General UKRAINE Victor Pshonka 01011 Kyiv, str. Reznytska 13/15 COPY: Vinnitsa district prosecutor Alexander Mryhyn 21100, Vinnitsa, st. Volodarsky, 33
AN OPEN LETTER
We believe our civic duty is to inform you that there are systemic problems with understanding and implementation of its functions under the Constitution of Ukraine and the Law of Ukraine "On Prosecutor's Office" in the department you head, in particular - in the Vinnytsia district prosecutor office. That has been leading to the violation of the Criminal Procedure Code by the Vinnytsia district prosecutor office for a long time and keeps turning criminal justice into a buffoonery.
We write here about the criminal case (disseminating pornography and abusing state symbol of Ukraine) initiated against Vinnytsia well-known human rights activist Dmytro Groysman. The case is being heard in Court for almost three years. There were sixty-six trials held, despite the fact that the investigation after the indictment had lasted for two days.
The trials are held in an open mode and are regularly enlightened by media. Numerous Ukrainian and international human rights organizations, politicians, community leaders, lawyers, journalists and many others are watching the case. Materials of the criminal case, as well as the records of the hearings are available on the Internet. Any ordinary citizen or foreigner, lawyer, politician or diplomat has the opportunity to assess the quality of work and impartiality of investigative agencies, prosecutors, experts and judges.
The UNHCR, "Amnesty International", "Committee for Civil Rights", etc. have already conveyed their deep outrage and condemnation of the actions of law enforcement officers. Observers had the opportunity to verify the complete lack of professionalism and impartiality of investigators who had initiated and investigated the referred case. To see that it's enough to read the indictment or the decision to "discharge" a criminal case records, followed by disappearance of those records. “Expert” opinion and their interview records are astonishingly amateurish and shill.
The Court has not provided its ruling yet, so its action could not be discussed for now. However, procedural position of the public prosecution office is a key to understanding whether the activities of the prosecution authorities are directed by the undisputed rule of law, protecting human rights and freedoms guaranteed by the Constitution and the laws of Ukraine and international regulations from illegal encroachments, as it is stated in Art.4 of the Law of Ukraine “On the Prosecutor’s Office”.
The public prosecution office has the authority and, which is even more important, the duty to stop this lawlessness. Another option for prosecution is to lead the most embarrassing persecution since the independence of Ukraine, to sign the trumped-up case and to go down in history with that. Under the Art. 264 of the Criminal Procedure Code of Ukraine, which sets the rules of this case proceeding, if the prosecutor based on the results of the trial comes to conclusion that the judicial investigation data does not support the charges, the prosecutor HAS to waive the charges and describe the reasons in his determination.
It seems obvious that the prosecutor as far as any other observer should have already come to the logical assumption that the judicial investigation data does not support the charges. This should have led to dismissing the charges, according to:
1) Lack of evidence.
2) Failure to prove Mr. Groysman participation in incriminated actions.
As known, one of the elements of the rule of law is the principle of legal certainty, which states that the violation of fundamental human rights and implementation of these violations in practice are permissible only in case legal norms imposed of these violations guarantee the predictability of their using. So, the violation of any right has to be based on the criteria, which shows a difference between lawful and unlawful behavior and gives an opportunity to anticipate the legal consequences of the latter. According to the Decision from 22 September 2005 № 5-rp/2005 the Constitutional Court of Ukraine indicated that " the constitutional principles of equality and justice implies the requirement of certainty and clarity of legal norms, as otherwise equal application of the norm, the limitlessness of its interpretation in law practice could not be provided and inevitably leads to chaos” (2nd par of point 5.4 paragraph 5 of the reasoning part). According to Art. 2 of the Criminal Procedure Code, the task of criminal justice, in particular, is to ensure the correct application of the law so that anyone who commits a crime is prosecuted and no innocent ever is punished.
And along with this, Mr. Groysman’s “crime” had been afterwards repeated by about 1000 people, some of who, even have documented appropriate actions and demanded to initiate a criminal case. Obviously, despite the requirements of the CPC of Ukraine regarding the procedural independence of the prosecutor in case, all the steps are agreed with the Vinnytsia district prosecutor, so we are sending him a copy of this letter.
The buffoonery, arranged by this case’s initiators is an abuse of elementary logic and CPC, which we are observing during almost all trials, casts doubt on the reputation of the prosecution in common and undermine the prestige of authority you head.
Court debates are scheduled on 18th March. This is the last prosecutor’s chance to close the case with no following harm to the Ukrainian prosecution’s reputation. Based on the above, p. 264 CPC, art. 4 and 5 of the Law of Ukraine "On Prosecutor's Office",
WE OFFER TO YOU:
Under Art. 264 CPC of Ukraine to use the prosecution duty and to quash the charges from Dmytro Groysman convicted in criminal offence under Part 1, Part 3 tbsp. 301, § 1 of Art. 338 of the Criminal Code of Ukraine.
From the Information Center for Human Rights,
Kyiv 01034, str. Reytarska 21/13, office 4a
From NGO "Centre" Social Action ", Kyiv, 03110, str. Solomenskaya 15A, 104
NGO "Civic Movement" New Look ", Kyiv, str. Prazka 8
Chairman Roman Minyeyev
Additional signatures on sheets
З повагою, нижчепідписані