Resolution of the Supreme Court of Ukraine No. 05-3342 св 00 of 18 September 2000
12.12.2001
V. F. Boyko, the head of the Supreme Court of Ukraine, having considered the administrative case of M.M. Stebliuk,
RECOGNIZED:
According to the decision of the Samarskiy district court of Dnepropetrovsk of 13 March 2000, M. Stebliuk was made administratively answerable by Article 185 of the Criminal-Procedural Code (CPC) of Ukraine and fined for Hr 300. This decision was changed by the head of the Dnepropetrovsk oblast court, who took the resolution of 21 April 2000, to diminish the fine down to Hr 255.
M. Stebliuk was brought to administrative responsibility for his spiteful disobedience to militia officers from the Samarskiy district precinct; in particular, he impeded them to search his flat at the address: Dnepropetrovsk, 2 20-richchia Peremogy St., Apt. 45.
The decision of the court must be cancelled and the case closed owing to the following reasons.
According to the sense of Article 185 of the CPC, spiteful disobedience to the demands of militia officers id punishable only when such demands are legal.
From the materials of the case it is quite clear that the judge of the first instance of the head of the oblast court completely disregarded this condition.
As can be seen from M. Stebliuk’s explanations, on 13 March 2000 about 7 a.m. he was moving towards his workplace and was detained by militiamen.
Referring to the search warrant of the flat, where Stebliuk lived, they took him by force to the flat, forced him to open the flat and searched it.
Being interrogated during the court session detectives of the Samarskiy district precinct O. P. Komisar and E. S. Shirokostup explained that they, on the basis of the order of the investigating officer, came to Stebliuk with the purpose of making a search. At this time he just appeared from the house and walked to the transportation stop. They tried to stop him, but he said that he was going to his work, pushed them off and offended. Having returned Stebliuk home, they started the search, in the course of which he again offended them.
The circumstances of this event, as they were described by O. P. Komisar, E. S. Shirokostup and M. M. Stebliuk, do not testify about any illegal actions of the latter, since the order about the search of the senior investigation officer of the Dnepropetrovsk oblast prosecutor’s office did not give the detectives the right to detain Stebliuk on his way to the work and to bring him back home.
That is why there is no reason to regard the actions of the militiamen as legal.
Taking into account that, according to Article 29 of the Ukrainian Constitution and item 1 of Article 5 of the European Convention of human rights, everyone has the right for freedom and personal inviolability, so one may be detained only observing the procedure stipulated by law, then M. Stebliuk’s actions did not violate Article 185 of the CPC of Ukraine. That is why the court, according to item 3 of Article 293 of the CPC,
RULED:
To cancel the resolution of the Samara district court of Dnepropetrovsk of 13 March 2000 and the resolution of the head of the Dnepropetrovsk oblast court of 21 March 2000 concerning M. M. Stebliuk, and to close the case.
RECOGNIZED:
According to the decision of the Samarskiy district court of Dnepropetrovsk of 13 March 2000, M. Stebliuk was made administratively answerable by Article 185 of the Criminal-Procedural Code (CPC) of Ukraine and fined for Hr 300. This decision was changed by the head of the Dnepropetrovsk oblast court, who took the resolution of 21 April 2000, to diminish the fine down to Hr 255.
M. Stebliuk was brought to administrative responsibility for his spiteful disobedience to militia officers from the Samarskiy district precinct; in particular, he impeded them to search his flat at the address: Dnepropetrovsk, 2 20-richchia Peremogy St., Apt. 45.
The decision of the court must be cancelled and the case closed owing to the following reasons.
According to the sense of Article 185 of the CPC, spiteful disobedience to the demands of militia officers id punishable only when such demands are legal.
From the materials of the case it is quite clear that the judge of the first instance of the head of the oblast court completely disregarded this condition.
As can be seen from M. Stebliuk’s explanations, on 13 March 2000 about 7 a.m. he was moving towards his workplace and was detained by militiamen.
Referring to the search warrant of the flat, where Stebliuk lived, they took him by force to the flat, forced him to open the flat and searched it.
Being interrogated during the court session detectives of the Samarskiy district precinct O. P. Komisar and E. S. Shirokostup explained that they, on the basis of the order of the investigating officer, came to Stebliuk with the purpose of making a search. At this time he just appeared from the house and walked to the transportation stop. They tried to stop him, but he said that he was going to his work, pushed them off and offended. Having returned Stebliuk home, they started the search, in the course of which he again offended them.
The circumstances of this event, as they were described by O. P. Komisar, E. S. Shirokostup and M. M. Stebliuk, do not testify about any illegal actions of the latter, since the order about the search of the senior investigation officer of the Dnepropetrovsk oblast prosecutor’s office did not give the detectives the right to detain Stebliuk on his way to the work and to bring him back home.
That is why there is no reason to regard the actions of the militiamen as legal.
Taking into account that, according to Article 29 of the Ukrainian Constitution and item 1 of Article 5 of the European Convention of human rights, everyone has the right for freedom and personal inviolability, so one may be detained only observing the procedure stipulated by law, then M. Stebliuk’s actions did not violate Article 185 of the CPC of Ukraine. That is why the court, according to item 3 of Article 293 of the CPC,
RULED:
To cancel the resolution of the Samara district court of Dnepropetrovsk of 13 March 2000 and the resolution of the head of the Dnepropetrovsk oblast court of 21 March 2000 concerning M. M. Stebliuk, and to close the case.