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17.08.2005

Court decision on illegal detention

   

RESOLUTION

13 May 2005

The local Ordzhonikidzevskiy district court of Kharkiv consisting of:

chairman – judge A. Klimenko, secretary L. Valkovksaya; with participation of: prosecutor K. Yarmak, advocate G. Tokarev, investigating officer T. Kuts, considered at the opened court sitting in the city of Kharkiv the complaint of advocate Gennadiy Tokarev in the interests of his client H. against the illegal detention of the suspected of commitment of a crime.

RESOLVED:

The organ of pre-trial investigation accuses H. of commitment of the crime envisaged by part 3 of Article 187 of the Criminal Code of Ukraine. On 6 May 2005 the Ordzhonikidzevskiy district court of Kharkiv took the decision about the preventive measure regarding H. in the form of holding in custody in temporary detention center No. 27 of the Kharkiv region.

On 10 May G. Tokarev, the advocate of the accused, handed to court a complaint about illegality of the detention. In this complaint the advocate demands to recognize as illegal the detention of his client H. by the officers of the Ordzhonikidzevskiy district department of the Ministry of Interior, referring to the following arguments:

-  the norms of the Criminal-Procedural Code of Ukraine does not establish the authority of an inquiry organ or an investigating officer to detain, without judge’s permission, a person on suspicion of a crime after its commitment, and detention by the investigating officer of his client on suspicion of a crime, committed long before the moment of detention, is an obvious violation of Article 29 of the Constitution of Ukraine;

-  factual detention of H. took place in evening of 1 May 2005 at the place of his residence; since that moment he has been continuously hold in custody during 120 hours before his transportation to court (on 16 May 2005 at about 17:00) without the observance of procedural order of detention, both in the framework of administrative and criminal proceedings;

-  the protocol of H.’s detention in accordance with Article 115 of the CPC of Ukraine contains the reasons of the detention, which are not stipulated by laws.

Prosecutor regarded the arguments of the complaint as ungrounded, and the complaint – as not liable to consideration. He explained that on 1 May 2005 H. had been transported by militia officers to the Ordzhonikidzevskiy district department of the Ministry of Interior in the Kharkiv region in the connection with family brawl, which had occurred at the place of his residence. During the personal search the law-enforcers found in the pockets of H.’s clothes and seized a substance of vegetative origin, and because of this H. was detained for the term up to 3 days according to the procedure envisaged by Article 263 of the Administrative Code of Ukraine as a person suspected of storage of narcotic drugs. On 4 May 2005 the experts of the laboratory of the Kharkiv regional department of the Ministry of Interior of Ukraine came to the conclusion that the substance, confiscated from H., was not a narcotic or psychotropic drug. In this connection, on 4 May, at about 8 p.m., H. was released and at once detained repeatedly by investigating officer T. Kuts in accordance with the procedure established by Article 115 of the CPC of Ukraine as a person suspected of committing a crime envisaged by part 2 of Article 187 of the Criminal Code of Ukraine.

Investigating officer of the Ordzhonikidzevskiy district militia department T. Kuts also reckoned that the complaint was groundless. She explained to court that immediately after H.’s detention in accordance with Article 115 of the CPC of prison, at 20:10, he had been familiarized with his constitutional and procedural rights, including the right to meet advocate from the very moment of detention, proper protocols had been compiled, after which he had been interrogated as a suspect.

The accused was not brought to court, since for transportation from temporary detention center No. 27 the investigation officer had to hand the corresponding application three days before the event, and the notification about consideration of the complaint was received by the investigating officer only on 11 May 2005.

Having listened to the claimant, prosecutor and the investigating officer in charge of the criminal case of H., having analyzed the materials of the case, having checked and assessed the collected proofs, the court reckons that the complaint is valid and must be satisfied.

The court have established that on 1 May 2005, about 4 p.m., the officers of the Ordzhonikidzevskiy district department of the Ministry of Interior in the Kharkiv region, who came by call to H.’s dwelling because of a family brawl, transported H. to the Ordzhonikidzevskiy district department. In the course of personal search detective of the district department Bondarev found a substance of vegetative origin in the pockets of H.’s clothes. Protocol about confiscation of this substance was compiled. In compliance with Article 263 of the Administrative Code of Ukraine, on 1 May 2005, at 10 p.m., H. was detained for the term up to 3 days as a person suspected of violation of the rules of circulation of narcotic drugs. On 3 May 2005 the confiscated substance was directed for expertise to the scientific institute of expertise at the Kharkiv regional department of the Ministry of Interior. According to expert’s conclusion No. 1270 of 4 May 2005, the substance, confiscated from H., was not a narcotic or psychotropic drug, in which connection on 4 May at 20:00 H., as a detained according to the Code on administrative offences, was released. Yet, he was at once detained by the investigating officer of the Ordzhonikidzevskiy district department of the Ministry of Interior on the basis of Article 115 of the CPC of Ukraine on suspicion of commitment of the crime envisaged by part 2 of Article 187 of the CC of Ukraine. The detention was based on the reason that the suspected was “caught after commitment of a crime”; the motive of the detention was prevention of the possibility of the suspect to hide. On 6 May 2005, about 6 p.m., the Ordzhonikidzevskiy district court of Kharkiv satisfied the appeal of the investigating officer of the district militia department, and the preventive measure in the form of holding in custody was chosen regarding H.

Detention of a person suspected of commitment of a crime is realized by an investigating officer in compliance with Article 115 of the Criminal-Procedural Code of Ukraine with observance of the demands established by Article 106 of the CPC of Ukraine.

Article 106 of the CPC of Ukraine contains the exhaustive list of circumstances, which can be the ground for detention of a person suspected of commitment of a crime. One of such grounds is detention of the person immediately after commitment of the crime. According to the accusation, preferred to H., he committed the crime envisaged by part 3 of Article 187 of the CC of Ukraine on 12 April 2005. Detention of H. by the investigating officer on the basis of Article 115 of the CPC of Ukraine took place on 4 May 2005, which in no way cannot be regarded as detention immediately after commitment of the crime.

According to protocol of detention of H. on the basis of Article 115 of the CPC of Ukraine, his detention was motivated by the reason that H. could hide from investigation and court. Such reason is not envisaged by Article 106 of the CPC of Ukraine as a ground for detention of a person suspected of commitment of a crime. No data, which confirmed that at the moment of H.’s detention by the investigating officer (8 p.m. of 4 May 2005) he had tried to escape from law-enforcers, were not presented to court. On the contrary, it was established in the course of the trial that before this moment H. had stayed in the building of the Ordzhonikidzevskiy district militia department as a person detained in the framework of legal proceedings on an administrative offence and, according to the book of registration of the detained of the Ordzhonikidzevskiy district militia station, he, in fact, had not been released at 8 p.m. of 4 May 2005, but was at once passed to investigating officer T. Kuts.

Under such circumstances the court reckons that the detention of H. on the suspicion of commitment of a crime by the investigating officer of the Ordzhonikidzevskiy district department of the Ministry of Interior in the Kharkiv region on 4 May 2005 at 20:00 on the basis of Article 115 of the CPC of Ukraine was carried out with violation of the demands of Article 106 of the CPC of Ukraine and was illegal.

Being governed by Articles 106, 115, 165-2 of the CPC of Ukraine, Article 29 of the Constitution of Ukraine, the court

RESOLVED:

To satisfy the complaint of advocate Gennadiy Tokarev in interests of his client H. against illegality of the detention of the suspect of commitment of a crime.

To recognize the detention carried out on 4 May 2005 by the investigating officer of the Ordzhonikidzevskiy district department of the Ministry of Interior in the Kharkiv region on the basis of Article 115 of the CPC of Ukraine of H., suspected of commitment of the crime envisaged by part 3 of Article 187 of the CC of Ukraine, as illegal.

Appeal against this resolution can be handed to the Appeal court of the Kharkiv region through the district court within 7 days.

Judge: A. Klimenko

The KhG commentary. The complaint against illegality of the detention of the suspected of commitment of a crime on the basis of Article 115 contain the arguments, which are mentioned in the court resolution:

1)  violation of the provisions of Article 29 of the Constitution of Ukraine;

2)  detention of the suspect on the basis of reasons, not envisaged by law.

As to the first argument of the complaint, we want to point out the following. Article 5 (item 1c) of the European Convention on the protection of human rights and fundamental freedoms permits the deprivation of liberty in the case of legal arrest or detention of a person for bringing him/her to a competent court organ on the well-grounded suspicion of commitment of an offence or in the case, where there are the reasons to suppose that it is necessary to prevent commitment of an offence by this person or to prevent his/her escape after commitment of an offence.

Article 29 of the Constitution of Ukraine envisages greater amount of guarantees of human rights for liberty and personal immunity than Article 5 of the Convention. So, part 2 of Article 29 of the Constitution formulates the general rule of deprivation of a person of liberty: only after motivated court decision and only on the basis and according to the procedure established by law. This norm has obvious similarity to the rule stipulated in the 4th amendment to the USA Constitution in the part of rendering of the right for arrest of a person in presence of the well-founded court warrant. Article 3 of Article 29 of the Constitution of Ukraine gives the exception from the general rule: the competent organ has the right for holding in custody as a temporary preventive measure. However, part 3 of the article also determines the necessary conditions for application of such measure by means of specification of the goals of its application: to prevent a crime or to stop it. Thus, this Constitutional norm establishes, in the implicit form, the temporal limits of the authorities of state organs concerning the application of this measure – before the commitment of a crime (in case of prevention of the crime) or at the moment of its commitment (in case of stopping of the crime). Although Article 29 of the Constitution of Ukraine does not contain the term “detention”, which is used in Article 106 of the CPC of Ukraine that regulates detention of a suspected of commitment of a crime, part 2 of Article 29 of the Constitution of Ukraine covers all cases of deprivation of liberty of a person, including detention of a suspect.

Thus, the Constitution of Ukraine does not permit the temporary preventive measure in the form of holding in custody after commitment of a crime. In such case the competent organs must follow the general rule (part 2 Article 29 of the Constitution), that is turn to court for permission for detention of a person staying at large, and this procedure is regulated by part 4 of Article 165-2 of the CPC.

In accordance with Article 19 of the Constitution of Ukraine, all state organs and officials must act only on the basis, within the limits and by means envisaged by the Constitution and laws of Ukraine. Reading the text of part 1 of Article 106 of the CPC of Ukraine, one can think that it gives the right to competent organs to detain a person suspected of commitment of a crime, in particular, after its commitment. However, since the Constitution of Ukraine, in view of Article 3, has the superior juridical force, no other normative act can broaden the authorities of state organs, envisaged by it. So, all grounds for detention of a person suspected of commitment of a crime, stated in Article 106 of the CPC, may be applied only with observance of the demands, stipulated by part 3 of Ukraine 29 of the Constitution of Ukraine, that is only for prevention or stop of a crime.

The event of the crime, of which the detained is suspected, took place three weeks before his detention by the investigating officer on the basis of Article 115 of the CPC of Ukraine. Thus, in that case the investigating officer had no necessity either to prevent or to stop the crime. So, the investigating officer, who detained the suspect, obviously exceeded the limits of his authorities provided by the Constitution of Ukraine. Although such practice of detention of suspects after commitment of crimes by them is rather common for law-enforcing organs, this is a direct violation of part 3 of Article 29 of the Constitution of Ukraine. So, the considered detention can be regarded as illegal only on the basis of violation of part 3 of Article 29 of the Constitution.

As to the second argument of the complaint, part 1 of Article 106 of the CPC of Ukraine mentions, as one of the reasons for detention of a person, the following situation: “when the person was caught during commitment of a crime or immediately after its commitment”. This norm, in compliance with the provision of part 3 of Article 29 of the Constitution of Ukraine (“prevention of a crime”) renders the right for detention of a suspect at the moment of commitment of a crime or during the pursuit of the suspect “hot on the trail”. The investigating officer wrote in the protocol of detention of the suspect that the latter “was caught after commitment of the crime”. Naturally, the word “after” does not mean “immediately after”, and, as the judge pointed out in his resolution, detention of the suspected three weeks after the crime in no way may be considered as detention immediately after commitment of the crime.

It follows from part 3 of Article 106 of the CPC, although indirectly, that for detention of a person as a suspected not only grounds are needed, but also motives of the detention. The protocol of detention adduces the motive: “can hide from investigation and court”. In the course of consideration of the complaint the judge decided that there were no data in the materials of the case, which proved such conclusion of the investigating officer.

The complaint also brings up the question about non-observance of the procedure of detention of a suspect, envisaged by law, since, in fact, he was detained by detectives three days before the moment of compilation of the protocol on the detention in accordance with Article 115 of the CPC of Ukraine, and, correspondingly, the constitutional norm on the 72-hour maximal term of detention was violated. In this connection the prosecutor’s office presented a number of documents on administrative detention of the suspected of violation of the rules of circulation of narcotic drugs, as well as the resolution on refusal to institute the criminal case for commitment of crimes in the sphere of circulation of narcotic drugs. It was impossible to refute the authenticity of these documents without their detailed study. So, holding of the detained in custody during first three days was not acknowledged by judge as illegal.

The reference to Article 29 of the Constitution in the end of the motivation part of the resolution is worthy of notice, since it evidences that the court recognized the violation of the provisions of this article.

Gennadiy Tokarev, advocate

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