Court ruling regarding the unlawful actions of the head of the department administration in the ARC

Decision of the Zaliznychnyi District Court of Simferopol, dated 12 May 2006, regarding the administrative lawsuit filed by Oleksandr Bukalov, head of the human rights organisation “Donetsk Memorial”, for the recognition as unlawful of the actions – failure to provide requested information regarding the activities of penal institutions – by the Acting Head of the Administration of the State Department for the Execution of Punishments in the Autonomous Republic of Crimea, M.I. Spiridonov. Provided are the texts of the court decision and the administrative lawsuit.
court decision,
administrative lawsuit

Case No. 2a-170/06
JUDGMENT
IN THE NAME OF UKRAINE

12 May 2006, Zaliznychnyi District Court of Simferopol, composed of:
Presiding Judge: V.K. Gnusarev,
Secretary: O.O. Husieva,
having considered in an open court hearing in Simferopol the administrative lawsuit of O.P. Bukalov for the recognition as unlawful of the actions of the Acting Head of the Administration of the State Department for the Execution of Punishments in the ARC, -

ESTABLISHED:
The plaintiff requests the recognition as unlawful of the failure by the Acting Head of the Administration of the State Department for the Execution of Punishments in the Autonomous Republic of Crimea, M.I. Spiridonov, to provide the plaintiff with the requested information, and to compel him to provide the plaintiff with the requested information regarding the activities of penal institutions under the Administration of the State Department for the Execution of Punishments in the ARC in accordance with the information request dated 30 October 2005.
The claims are motivated by the fact that the plaintiff, being the chairman of the “Donetsk Memorial” organisation, in accordance with Articles 29, 32, 33 of the Law of Ukraine “On Information”, requested information from the defendant on 1 August 2005 regarding the activities of penal institutions in the ARC, however, in his response dated 11 August 2005, the defendant refused to provide the requested information, citing the fact that it was internal service documentation, and to the plaintiff’s requests dated 19 August 2005 and 30 October 2005, the defendant recommended addressing the Department directly.
The plaintiff did not appear in the court session, requesting that the court consider the case in his absence.
The defendant’s representative acknowledged the claims and explained that the information requested by the plaintiff was sent to him by letter dated 4 May 2006.
Under such circumstances, the court deems it necessary to satisfy the plaintiff’s claims in the part regarding the recognition of the failure by the Acting Head of the Administration of the State Department for the Execution of Punishments in the ARC to provide the information requested by the plaintiff as unlawful, and the claims regarding imposing an obligation to provide the requested information should be left without consideration, as these claims were voluntarily fulfilled by the defendant.
On the basis of Articles 29, 32, 33, 48 of the Law of Ukraine “On Information”, guided by Articles 11, 71, 86, ... of the Code of Administrative Legal Proceedings of Ukraine, the court
JUDGED:

The lawsuit is to be satisfied in part. The failure by the Acting Head of the Administration of the State Department for the Execution of Punishments in the ARC to provide the information requested by Oleksandr Pavlovych Bukalov in letters dated 1 August 2005, 19 August 2005, and 30 October 2005, shall be recognised as unlawful.
Claims in the other part shall be left without consideration.
The judgment may be appealed to the Court of Appeal of the Autonomous Republic of Crimea through the Zaliznychnyi District Court of Simferopol by submitting within 10 days from the day of its proclamation a declaration of appeal, and submitting an appeal petition within 20 days after the submission of the declaration of appeal against the judgment.

Judge.
The judgment came into legal force: 23 May 2006.
Judge
Secretary

To the Zaliznychnyi District Court of Simferopol
Oleksandr Pavlovych Bukalov
regarding the unlawful refusal to provide
information by the Acting Head of the Administration
of the State Department for the Execution
of Punishments in the ARC
Mr. M.I. SPIRIDONOV

ADMINISTRATIVE LAWSUIT
As chairman of the council of the “Donetsk Memorial” organisation, I conduct research in the field of penal system reform. The organisation I head has published over 40 editions on this topic. In connection with this, I addressed an information request to the Acting Head of the Administration of the State Department for the Execution of Punishments in the ARC, Mr. M.I. SPIRIDONOV, with a request to provide information regarding the activities of penal institutions in the ARC. The information request was sent by letter No. 130 dated 1 August 2005 (copy attached) in accordance with Article 40 of the Constitution of Ukraine and Articles 29, 32, 33 of the Law of Ukraine “On Information”.
In the received response No. 6/4094 dated 11 August 2005, signed by the Acting Head of the Administration of the State Department for the Execution of Punishments in the ARC, Mr. M.I. SPIRIDONOV, it is asserted that the requested information “belongs to documentation constituting internal service correspondence”. At the same time, advice was provided to address the Department directly for information.
By letter No. 138 dated 19 August 2005, I addressed the Acting Head of the Administration of the State Department for the Execution of Punishments in the ARC, Mr. M.I. SPIRIDONOV, in which it was noted that the provided response mentioned “internal service correspondence”. At the same time, the Law defines internal service correspondence as memorandums, correspondence between departments, and so on.
It is obvious that the information requested by me, namely
- the number of persons held in places of imprisonment;
- the number of places for which the SIZO is designed;
- the number of persons who arrived at penal institutions in the ARC, and other
is not a memorandum or correspondence between departments. This is also acknowledged by Mr. Spiridonov, because he suggests addressing the Department and obtaining there this, according to his assertions, internal service correspondence, which, according to the Law, is not subject to provision! Therefore, classifying the information requested by me as the category of internal service correspondence is, in my view, unlawful. Furthermore, the original source of the requested information is the administration of the Department, and not the Department, therefore I am addressing the administration specifically.
The subsequent response of the administration, delivered by letter No. 4573/Pl. dated 5 September 2005, contains only advice to address the Department.
Since the required information was subsequently partially provided by the leadership of the State Department for the Execution of Punishments, I addressed the Acting Head of the Administration of the State Department for the Execution of Punishments in the ARC, Mr. M.I. SPIRIDONOV, for the third time with a new information request and asked him to provide me with the rest of the requested information (copy attached). I sent the request by letter No. 176 dated 30 October 2005. According to the delivery notification, my request was received at the beginning of November 2005. By letter No. 6/7860 dated 10 November 2005 (copy attached) signed by the Acting Head of the Administration of the State Department for the Execution of Punishments in the ARC, Mr. M.I. SPIRIDONOV, the information was again not provided to me, and it contained advice to address the Department.
Thus, my constitutional right to receive information, provided for by Article 40 of the Constitution of Ukraine, has been violated.
Considering the above, on the basis of Articles 34, 55 of the Constitution of Ukraine, Article 48 of the Law of Ukraine “On Information”, Articles 6, 104 of the Code of Administrative Legal Proceedings of Ukraine, and Article 302 of the Civil Code of Ukraine

I REQUEST
1. To recognise the failure by the Acting Head of the Administration of the State Department for the Execution of Punishments in the ARC, Mr. M.I. SPIRIDONOV, to provide me with the requested information as unlawful.
2. To compel the Acting Head of the Administration of the State Department for the Execution of Punishments in the ARC, Mr. M.I. SPIRIDONOV, to provide the requested information regarding the activities of penal institutions under the Administration of the State Department for the Execution of Punishments in the ARC in accordance with the information request dated 30 October 2005.

I request that this administrative lawsuit be considered in my absence.

Attachments
1. Copy of information request No. 130 dated 1 August 2005.
2. Copy of letter No. 138 dated 19 August 2005.
3. Copy of information request No. 176 dated 30 October 2005.
4. Copy of response No. 6/4094 dated 11 August 2005.
5. Copy of response No. 4573/Pl. dated 5 September 2005.
6. Copy of letter No. 6/7860 dated 10 November 2005.
7. Copy of COMPLAINT.
8. Receipt for payment of the court fee.
29 January 2006 Oleksandr BUKALOV