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26.10.2004

On 21 June 2004 the Appeal court of the Crimean Republic issued the decision, which would become a precedent in the sphere of application of administrative arrest

   

Advocate Aleksandr Lesovoy, who closely cooperates with the Fund of professional support of the victims of torture from the very beginning of his work, achieved a very important success in the national court. This decision was one of the greatest successes of the Fund of professional support. Ms. Makarova, who, on 17 December 2003, had not been able to prove the illegality of her detention, turned to the European Court of human rights, and one could predict that the European Court would decide in her favor. However, the decision of the appeal court is must more important result both for Ms. Makarova and for Ukraine as a whole, since it is known that one decision of a national court, which protects human rights, is worth tens of decisions of international organs.

The decision concerns one of the most neglected spheres of right: detention for the commitment of an administrative offence. The professionals, who work in the system of criminal proceedings, and the people, who deal with this system, know how frequently the militiamen use the illegal administrative detention in order to obtain the additional time for “work” with the suspected. The considered decision is interesting in many respects and evidences about the change in the approach of courts to the protection of the right to liberty, to the practical application of the norms of the Constitution and international right.

We hope that the Supreme Court of Ukraine will not annul this decision.

Arkadiy Bushchenko

DECISION

IN THE NAME OF UKRAINE

On 21 June 2004 the collegium of judges of the court chamber in charge of civil cases of the Appeal court of the Autonomous Republic of Crimea consisting of:

Chairman judge V. Sirotiuk

Judges N. Pankov and G. Isaev

Secretary M. Bakhtagareeva

With the participation of advocate A. Lesovoy

Considered at the open court sitting in Simferopol the civil case after the complaint of Lydia Makarova against the illegal actions of the officers of the Bakhchisaray district department of the Main Directorate of the Ministry of Interior of Ukraine in the Crimea, prosecutor’s office of the Bakhchisaray district of the Crimea, and after the appeal complaint of L. Makarova against the decision of the Bakhchisaray district court of the Crimea of 17 December 2003, and

RESOLVED:

L. Makarova turned to court with the complaint according to chapter 31-A of the Civil-Procedural Code of Ukraine and asked to acknowledge as illegal the actions of the officers of the Bakhchisaray district department of the Main Directorate of the Ministry of Interior of Ukraine in the Crimea and the prosecutor’s office of the Bakhchisaray district of the Crimea connected with her detention on 25 July 2003 and holding in custody from 25 July to 4 August 2003.

The complaint is motivated by the fact that on 25 July 2003 she was detained by the officers of the Bakhchisaray district department of the Main Directorate of the Ministry of Interior of Ukraine in the Crimea in accordance with Article 263 of the Code of Ukraine on Administrative Offences (CUAO) of Ukraine and taken to the preliminary prison of the Bakhchisaray district, where she was kept, with the sanction of the district prosecutor, for ten days, after which was released. The claimant reckons that her holding in custody contradicts Article 29 of the Constitution of Ukraine and Article 5 of the European Convention on the protection of human rights and fundamental freedoms.

By the decision of the Bakhchisaray district court of Crimea of 17 December 2003 the complaint by L. Makarova was not satisfied.

In the appeal complaint the claimant insists on the unlawfulness of the decision, so she asks to reverse it and to issue new decision, which would satisfy her complaint.

The collegium of judges listened to the judge-speaker, representatives of L. Makarova and representatives of the Bakhchisaray district militia department, studied the materials of the case and the presented proofs, and resolved that the complaint had to be satisfied.

Refusing to satisfy the complaint the court of the first instance proceeded from the fact that L. Makarova had been detained by militia officers on the basis of Article 263 of the CUAO, since narcotic drugs had been found in her dwelling during the search, and the detention had been caused by the necessity to identify her. The court came to the conclusion that the actions of the officers of the Bakhchisaray district department and the prosecutor’s office of the Bakhchisaray district did not contradict laws, the officials acted within the bounds of their authorities, and the claimant could not prove in court that she has an identity card at the moment of detention.

Such conclusions of the court do not conform to circumstances of the case and the demands of law.

The contents of the protocol evidence that on 25 July 2003 L. Makarova was detained at her place of residence for three days in compliance with Article 263 of the CUAO. The reason of the detention was the discovery of narcotic drugs in L. Makarova’s dwelling in the course of search.

On 28 July the acting prosecutor of the Bakhchisaray district prolonged the term of detention of L. Makarova to ten days (page 40 of the case materials).

The above-mentioned actions of the officers of the Bakhchisaray district militia department and the district prosecutor’s office contradict part 2 of Article 29 of the Constitution of Ukraine and Article 263 of the CUAO.

According to part 2 of Article 29 of the Constitution of Ukraine, anybody can be arrested or hold in custody only after the motivated court decision and only on the grounds and in accordance with the procedure stipulated by law.

By the sense and purpose of Article 263 of the CUAO, a person that committed an administrative offence can be detained in administrative order. This article establishes the terms of administrative detainment.

Thus, the protocol about the administrative detention of L. Makarova must evidence that the detained person is suspected of an administrative offence or committed such offence.

The court did not disclose any information that the protocol on an administrative offence had been compiled regarding L. Makarova and she had been brought to administrative responsibility according to legal procedure.

Representatives of the Bakhchisaray district militia department explained, in the court of the appeal instance, that the detention of L. Makarova had been carried out in the connection with the commitment by her of a criminal offence, the search in her dwelling had been conducted with court sanction and after the search the criminal case after Articles 307 and 309 of the CC of Ukraine had been started against her.

On 29 March 2004 the Bakhchisaray district court condemned L. Makarova for the commitment of the crimes envisaged by Articles 307 part 2 and 309 part 2 of the CC of Ukraine to five years of deprivation of liberty. In accordance with Article 75 of the CC of Ukraine, L. Makarova was released from the service of sentence (pages 49-50).

According to Article 267 of the CUAO, the interested person may appeal against administrative detention, in particular, to court.

Absence in law of the directions on the procedure of consideration of such complaints cannot be an obstacle for consideration of the complaint of L. Makarova by virtue of the clauses of item 1 of Article 6 of the European Convention on the protection of human rights and fundamental freedoms, which clauses concern the access to justice.

Rules of Article 5 of the European Convention on the protection of human rights and fundamental freedoms reads: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so”.

Starting from the above-said, the collegium of judges comes to the conclusion that the detention and holding in custody from 25 July to 4 August 2003 of L. Makarova on the suspicion of commitment by her of a criminal offence on the basis of Article 263 of the Code on administrative offences contradicts Article 5 of the European Convention on the protection of human rights and fundamental freedoms.

Taking into account that the court of the first instance incorrectly applied the norms of the material right and its conclusions did not correspond to circumstances of the case, the decision of the court of the first instance must be reversed by new decision on this case.

On the basis of the above arguments and Articles 11, 301, 309 and 312 of the Civil-Procedural Code of Ukraine, the collegium of judges of the court chamber in charge of civil cases

RESOLVED:

To satisfy the appeal complaint of Lydia Makarova.

To reverse the decision of the Bakhchisaray district court of the Crimea of 17 December 2003, to issue new decision.

To satisfy the complaint of L. Makarova. To recognize as illegal the actions of the head of the Bakhchisaray district department of the Main Directorate of the Ministry of Interior of Ukraine in the Crimea and of the acting prosecutor of the Bakhchisaray district of the Crimea, connected with detention and holding in custody of Lydia Makarova on the basis of Article 263 of the CUAO during the period from 25 July to 4 August 2003.

To recognize as illegal the detention of Lydia Makarova and holding her in custody from 25 July to 4 August 2003.

The cassation may be handed against this decision to the Supreme Court of Ukraine during a month.

Judges: V. Sirotiuk, N. Pankov, G. Isaev

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