The Constitutional Court of Ukraine limited terms and grounds for administrative detention
- Author: Andriy Buzynnyi
- Standardized procedures: Legal advice
- Дата публикации: 20/10/11
On the 13th of October 2011 the Constitutional Court of Ukraine recognized a number of provisions of the Code of Administrative Offences and the Law “On militia” as unconstitutional. These provisions deal with detention of persons who committed acts of petty hooliganism, disobeyed lawful requests of militia, sold goods without permissions and some other actions. We will analyze reasons and consequences of the mentioned decision from the perspective of practice that exists in our country. This comment should not be considered as a legal advice for your particular situation.
Probably decision about recognition of Section 4 of Article 263 of the Code of Administrative Offences of Ukraine as unconstitutional is the most significant one. It provided a right to detain persons who committed such administrative offences as petty hooliganism, domestic violence, severe disobedience against lawful requests of militia, violation of procedure of rallies organization and conduction, sale of goods without permission, contempt of court, court hearing by a judge or head of a body of the Ministry of Internal Affairs of Ukraine. At the same time according to Article 277 of the Code of Administrative Offences of Ukraine terms for hearing cases related to administrative offences begin since the day when a protocol about such offence is received but neither term of protocol drafting nor terms of its filing to court or head of a body of the Ministry of Internal Affairs of Ukraine are defined by the Code of Administrative Offences of Ukraine.
In practice this causes a situation when the protocols are not completed prior to arrival of a lawyer and sometimes they are filed for consideration very slowly.
From now on the legislator will most likely have to set term for drafting of an administrative protocol or otherwise set maximal terms for detention of the abovementioned offenders. Until then in accordance with Section 2 of Article 19 of the Constitution of Ukraine bodies of militia lose their powers regarding administrative detention for the term which exceeds three hours (general term that is provided by Section 1 of Article 263 of the Code of Administrative Offences of Ukraine).
The only exceptions will be regarding violators of border control regulations and regulations related to narcotic drugs. In this cases term of detention may be up to three days on condition that a public prosecutor is informed about it in written form. But provisions which allowed to detain the mentioned persons for the period up to 10 days based on sanction of a public prosecutor and absence of documents which verify identity were recognized as unconstitutional. These provisions of Section 2 and Section 3 of Article 263 of the Code of Administrative Offences were considered to be in non-compliance with Article 29 of the Constitution of Ukraine according to which term of detention without court decision must not exceed 72 hours.
Another relevant issue was based on provisions of Section 5 of Article 263 of the Code of Administrative Offences of Ukraine according to which term of administrative detention was initiated since the moment when an offender was taken to a militia department for formalization of protocol and regarding a person under alcohol intoxication – since the moment of soberness. Based on absence of maximal term for brining offenders to militia departments and their sobering as well as the fact that this term was not included in 72 hours, bodies of the Ministry of Internal Affairs of Ukraine would not only delay moment of bringing of offender to department but also would slow up formalization of moment when the offender was brought to a bullpen. As the result term of actual detention could exceed 72 hours.
In its decision the Constitutional Court of Ukraine recognized Section 5 of Article 263 of the Code of Administrative Offences as unconstitutional by pointing out uncertainties that are caused by this article as well as it inconsistence with Article 29 of the Constitution of Ukraine. Based on the decision of the Constitutional Court of Ukraine one can conclude that from now on until the issue is regulated in the legislation term of detention should be initiated since the moment of arrest and not since the moment of bringing to department or sobering.
Finally Subsection 5 of Section 1 of Article 11 of the Law “On militia” was considered unconstitutional. According to it persons that disobeyed lawful requests of militia could be detained until the case was heard by a court but not more than 24 hours. Unconstitutional nature of this provision is based on the fact that disobedience against requests of militia is not an administrative offence! In accordance with Article 185 of the Code of Administrative Offences of Ukraine only severe disobedience against lawful requests of militia results in liability. It is not much of a difference – severe disobedience is defined as refusal to fulfill persistent, multiply repeated lawful orders or demands of militia employee. But still there is difference. Thus from now on militia employees will have to repeat their requests at least twice in order to arrest a person for severe disobedience.
This material was prepared by lawyers of law firm “Pravova Dopomoga”. It is related to service of Legal representation.