The Department's Directorate has lost in court again

Ukraine
DONETSK DISTRICT ADMINISTRATIVE COURT
RULING IN THE NAME OF UKRAINE
07 April 2010, 11:56 a.m. Case No 2a-23677/09/0570
Court premises located at: 17, 50-i Hvardiiskoi Dyvizii St., Donetsk, 83052
The Donetsk District Administrative Court, composed of:
Presiding Judge: A.V. Kozachenko
Secretary: M.V. Shalahinova
In the presence of:
Plaintiff: O.P. Bukalov
having considered in an open court session the administrative case regarding the claim of Oleksandr Pavlovych Bukalov against the Head of the Directorate of the State Department for the Execution of Punishments in Cherkasy Region to declare actions unlawful and to compel the performance of certain actions,
HAS ESTABLISHED:
The plaintiff, Oleksandr Pavlovych Bukalov, appealed to the Donetsk District Administrative Court with an administrative claim against the Head of the Directorate of the State Department for the Execution of Punishments in Cherkasy Region to declare actions unlawful and to compel the performance of certain actions.
To justify the claims, the plaintiff stated that, as head of the council of the organisation ‘Donetsk Memorial’, he had sent a letter (No 86, dated 18.07.2006) to the defendant requesting certain information, but he had received no response to said letter.
Since no response was received, the plaintiff sent a follow-up request to the defendant, acting only as a citizen, requesting the information. This appeal was received by the defendant on 18.09.2006, but he still did not receive a response.
He believes that such actions by the defendant violated his right provided for by Article 40 of the Constitution of Ukraine.
Based on the above, he requested that the failure of the Head of the Directorate of the State Department for the Execution of Punishments in Cherkasy Region to provide the requested information be declared unlawful, and to compel the Head of the Directorate of the State Department for the Execution of Punishments in Cherkasy Region to provide the requested information regarding the activities of the penal institutions of the Directorate of the State Department for the Execution of Punishments in Cherkasy Region, in accordance with the information request dated 18.07.2006.
The plaintiff supported the claims in the court session, motivated his position similarly to that stated in the statement of claim, and requested that the claim be granted in full.
The representative of the defendant did not appear in the court session; having been duly notified of the time, date, and place of the case consideration, he did not submit any objections or motions to postpone the hearing to the court.
On these grounds, in accordance with Article 128 of the Code of Administrative Judiciary of Ukraine, the court deemed it possible to consider the case in the absence of the defendant’s representative and on the basis of the evidence available in the case materials.
Having heard the plaintiff’s explanations and studied the case materials, the court considers that the claims are subject to satisfaction for the following reasons.
Thus, the court has established that the plaintiff sent a letter to the defendant (No 86, dated 18.07.2006) with a request for information regarding the activities of penal institutions in the Cherkasy Region; said appeal was received by the defendant, as evidenced by the information in the submitted objections and a copy of the appeal itself (case papers 23-26). To date, the defendant has not provided a response to the plaintiff. According to Article 1 of the Law of Ukraine ‘On Citizens' Appeals’ (dated 02 October 1996, No 393/96-VR), citizens of Ukraine have the right to appeal to public authorities, local self-government bodies, associations of citizens, enterprises, institutions, and organisations regardless of their form of ownership, mass media, and officials in accordance with their functional duties, with remarks, complaints, and proposals concerning their statutory activities, or with an application or petition regarding the realisation of their socio-economic, political, and personal rights and legitimate interests, and a complaint about their violation.
Also, Article 18 of this Law establishes that a citizen who has appealed with an application or complaint to public authorities, local self-government bodies, enterprises, institutions, and organisations regardless of their form of ownership, associations of citizens, mass media, or officials, has the right to: personally set out arguments to the person who checked the application or complaint and participate in the verification of the submitted complaint or application; familiarise themselves with the materials of the verification; submit additional materials or insist on their request by the body considering the application or complaint; be present during the consideration of the application or complaint; use the services of a lawyer or a representative of a labour collective, or an organisation that carries out human rights functions, having formalised this authorisation in the manner prescribed by law; receive a written response about the results of the consideration of the application or complaint; express a demand, orally or in writing, regarding the confidentiality of the consideration of the application or complaint; demand compensation for damages if they resulted from violations of the established procedure for considering appeals.
Under the provisions of Article 19 of the aforementioned Law, public authorities and local self-government bodies, enterprises, institutions, and organisations regardless of their form of ownership, associations of citizens, mass media, their heads, and other officials are obliged, within the scope of their powers, to objectively, comprehensively, and timely check applications or complaints.
Article 20 of the Law provides that appeals are considered and resolved within a period of no more than one month from the day of their receipt, and those that do not require additional study — immediately, but no later than fifteen days from the day of their receipt. If it is impossible to resolve the issues raised in the appeal within a month, the head of the relevant body, enterprise, institution, or organisation or their deputy shall set the necessary period for its consideration, about which the person who submitted the appeal shall be notified. At the same time, the general period for resolving the issues raised in the appeal cannot exceed forty-five days. Upon a reasoned written request of a citizen, the period of consideration may be shortened from the term established by this article. Appeals of citizens who have benefits established by legislation are considered on a priority basis.
Section 2 of the Law of Ukraine ‘On Citizens' Appeals’ provides for the procedure for considering citizens' appeals, which includes the duty for the subject considering the appeal to objectively and timely consider them, verify the facts set out therein, make decisions in accordance with current legislation, and ensure their execution, and notify citizens about the consequences of the consideration of applications (petitions).
At the time of consideration of the administrative case, the defendant did not provide evidence regarding the provision of a response to the plaintiff for his letter dated 18.07.2006, No 86.
In accordance with Article 19 of the Constitution of Ukraine, public authorities and local self-government bodies, and their officials are obliged to act only on the basis, within the limits of powers, and in the manner provided for by the Constitution and laws of Ukraine.
According to items 1, 2 of Part 3 of Article 2 of the Code of Administrative Judiciary of Ukraine, in cases of challenging decisions, actions, or inaction of subjects of authority, administrative courts verify whether they were adopted (performed) on the basis, within the limits of powers, and in the manner provided for by the Constitution and laws of Ukraine; using the power for the purpose for which the power was granted.
Furthermore, in accordance with Part 1 of Article 9 of the Code of Administrative Judiciary of Ukraine, the court, when deciding a case, is guided by the principle of legality, according to which public authorities, local self-government bodies, and their officials are obliged to act only on the basis, within the limits of powers, and in the manner provided for by the Constitution and laws of Ukraine.
In accordance with item 1 of Part 2 of Article 162 of the Code of Administrative Judiciary of Ukraine, in case of satisfying an administrative claim, the court may adopt a resolution to declare as unlawful the decision of a subject of authority or its individual provisions, actions, or inaction, and to cancel or declare invalid the decision or its individual provisions, on the reversal of the execution of this decision or its individual provisions with an indication of the method of its implementation, and the obligation of the defendant to perform certain actions.
According to Part 1 of Article 71 of the Code of Administrative Judiciary of Ukraine, each party must prove the circumstances on which its requirements and objections are based, except for cases established by Article 72 of this Code. According to Part 2 of Article 71 of the Code of Administrative Judiciary of Ukraine, in administrative cases concerning the unlawfulness of decisions, actions, or inaction of a subject of authority, the duty of proving the lawfulness of their decision, action, or inaction lies with the defendant if they object to the administrative claim.
Thus, based on the above-mentioned legal norms and the investigated circumstances, the court considers that the defendant has not proven to the court the lawfulness of their actions regarding the failure to provide a response to the plaintiff for his letter dated 18.07.2006, No 86, in connection with which the plaintiff’s claims are subject to satisfaction.
However, taking into account the previously established and stated unlawfulness of the defendant’s actions in this administrative claim, as well as the fact that when challenging the actions of the Head of the Directorate of the State Department for the Execution of Punishments in Cherkasy Region, one should consider the concept of ‘Head’ not as a specific person but as a position, exercising the right provided for by Part 2 of Article 11 of the Code of Administrative Judiciary of Ukraine, the court considers it necessary to go beyond the scope of the claims and, as a method of restoring the plaintiff’s violated right, to choose — declaring the inaction of the Directorate of the State Department for the Execution of Punishments in Cherkasy Region regarding the failure to provide a response as unlawful, and compelling the Directorate of the State Department for the Execution of Punishments in Cherkasy Region to provide the plaintiff with a response to his appeal dated 18.07.2006, No 86.
On these grounds, the court satisfies the plaintiff’s claims in full.
Expenses for the payment of the court fee, according to the provisions of Articles 87 and 94 of the Code of Administrative Judiciary of Ukraine, are subject to award to the plaintiff from the State Budget of Ukraine.
Based on the above, guided by Articles 2-15, 17-18, 33-35, 41-42, 47-51, 56-59, 69-71, 79, 86, 87, 94, 99, 104-107, 110-111, 121, 122-143, 151-154, 158, 162, 163, 167, 185-186, 254 of the Code of Administrative Judiciary of Ukraine,
IT HAS RULED:
The administrative claim of Oleksandr Pavlovych Bukalov against the Directorate of the State Department for the Execution of Punishments in Cherkasy Region regarding the declaration of inaction as unlawful and the obligation to perform certain actions, shall be satisfied in full.
Declare the inaction of the Directorate of the State Department for the Execution of Punishments in Cherkasy Region regarding the failure to provide a response to Oleksandr Pavlovych Bukalov in accordance with the Law of Ukraine ‘On Citizens' Appeals’ to his appeal dated 18.07.2006, No 86, as unlawful.
Compel the Directorate of the State Department for the Execution of Punishments in Cherkasy Region, on the basis and in the order provided by the Law of Ukraine ‘On Citizens' Appeals’, to provide Oleksandr Pavlovych Bukalov with a response regarding the activities of the penal institutions of the Directorate of the State Department for the Execution of Punishments in Cherkasy Region in accordance with the information request dated 18.07.2006, No 86.
Collect from the State Budget of Ukraine in favour of Oleksandr Pavlovych Bukalov the expenses for the payment of the court fee in the amount of 3.40 UAH.
The resolution in full was drawn up on 12.04.2010.
An application for appellate appeal of the court’s resolution is filed within ten days from the day of its pronouncement, and in the case of drafting the resolution in full — from the day of drafting in full — to the Donetsk Appellate Administrative Court through the Donetsk District Administrative Court.
If the resolution was pronounced in the absence of a person participating in the case, the term for filing an application for an appellate appeal is calculated from the day they receive a copy of the resolution.
An appellate appeal against the court’s resolution is filed to the Donetsk Appellate Administrative Court through the Donetsk District Administrative Court within twenty days after the submission of the application for an appellate appeal.
An appellate appeal may be filed without prior submission of an application for an appellate appeal, if the appeal is filed within the period established for filing an application for an appellate appeal.
Judge: A. V. Kozachenko



To the Budionivskyi District Court of Donetsk
83030, Donetsk, 9, Huriivska St.
Oleksandr Pavlovych Bukalov
Regarding the unlawful refusal to provide
information by the Head of the Directorate of the
State Department for the Execution of
Punishments in Cherkasy Region
18015, Cherkasy, 337, Hoholia St.
ADMINISTRATIVE CLAIM

I, as a citizen and as the head of the council of the organisation ‘Donetsk Memorial’, appealed via letter No 86 dated 18.07.2006 with an information request to the Head of the Directorate of the State Department for the Execution of Punishments in Cherkasy Region with a request to provide information regarding the activities of the penal institutions of the Cherkasy Region. The information request was sent by letter (copy attached) in accordance with Article 40 of the Constitution of Ukraine and Articles 29, 32, and 33 of the Law of Ukraine ‘On Information’.
I did not receive a response to my request for almost two months.
Since I had not received a response, I appealed for a second time — now only as a citizen — to the Head of the Directorate of the State Department for the Execution of Punishments in Cherkasy Region with a request to provide information regarding the activities of the penal institutions in the Cherkasy Region. The receipt of my follow-up request at the Directorate of the State Department for the Execution of Punishments in Cherkasy Region on 18.09.2006 is confirmed by the Notification of delivery of the postal item.
Two more months have passed, but I have still not received a response from the Directorate of the State Department for the Execution of Punishments in Cherkasy Region.
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 and 55 of the Constitution of Ukraine, Article 48 of the Law of Ukraine ‘On Information’, Articles 6, 104, 162 item 2 of the Code of Administrative Judiciary of Ukraine, and Article 302 of the Civil Code of Ukraine

I REQUEST

1. To declare the failure of the Head of the Directorate of the State Department for the Execution of Punishments in Cherkasy Region to provide me with the requested information as unlawful.
2. To compel the Head of the Directorate of the State Department for the Execution of Punishments in Cherkasy Region to provide the requested information regarding the activities of the penal institutions of the Directorate of the State Department for the Execution of Punishments in Cherkasy Region in accordance with the information request dated 18.07.2006.

Appendices
1. Copy of information request No 86 dated 18 July 2006 — 2 copies.
2. Copy of follow-up information request dated 14.09.2006 — 2 copies.
3. Copy of Notification of delivery dated 19 September 2006 — 2 copies.
4. Copy of the COMPLAINT.
5. Receipt for payment of the state duty.
01 December 2006 Oleksandr BUKALOV

‘DONETSK MEMORIAL’
No 86 dated 18 July 2006
To the Head of the Directorate of the State
Department of Ukraine for the Execution of
Punishments in Cherkasy Region
Dear Head of the Directorate!
I, as a citizen of Ukraine and as the head of the non-governmental human rights organisation ‘Donetsk Memorial’, am addressing you with an information request and, based on the requirements of Articles 34 and 40 of the Constitution of Ukraine and Articles 29, 32, and 33 of the Law of Ukraine ‘On Information’, I request that you provide the following information regarding the activities of the penal institutions of your region in 2005 and separately in the first half of 2006, namely:
1. The number of persons held in places of deprivation of liberty in your region as of 01.01.2006 and as of 01.07.2006,
including separately:
- convicted persons,
- in pre-trial detention centres (SIZO),
- sentenced to life imprisonment,
- HIV-infected,
- patients with tuberculosis.
2. The number of persons who entered the region's penal institutions during 2005 and separately in the first half of 2006:

3. The number of persons released from the region's places of deprivation of liberty in 2005 and separately in the first half of 2006:
- in total,
- including on parole.
4. The number of persons who were registered with the Criminal-Executive Inspection of the region as of 01.01.2006 and separately as of 01.07.2006.

5. The number of persons who died while in the places of deprivation of liberty of your region in 2006 and separately in the first half of 2006,
- including suicide cases.

7. The number of complaints from convicted persons (please note: not appeals, but specifically complaints, and not from all citizens, but only from the imprisoned — convicts and SIZO residents) submitted to the Department’s Directorate in your region during 2005 and separately in the first half of 2006, in total,
as well as the number of satisfied complaints or those recognised as well-founded.
8. The total area allocated for the housing of convicted persons in the institutions of the Department’s Directorate in your region, as well as the total area in the SIZO of your region allocated for the housing of imprisoned persons, as of 01.01.2006.

I draw your attention to the mandatory nature of providing the requested information in accordance with the requirements of information legislation. We also ask you to take into account that, in accordance with the requirements of Article 33 of the Law of Ukraine ‘On Information’, the response to an information request must be provided within a ten-day period. I request that it be sent to our organisation's postal address:

P.O. Box 4836, Donetsk 83092
Thank you in advance for your attention to this request.
Sincerely,
Oleksandr BUKALOV
Head of the ‘Donetsk Memorial’ Council
Head of the Penitentiary Society of Ukraine


To the Head of the Directorate of the State
Department of Ukraine for the Execution of
Punishments in Cherkasy Region
From Oleksandr Pavlovych Bukalov
Donetsk-92, 37-24, 230-i Striletskoi Dyvizii St.

Dear Head of the Directorate!

I, as a citizen of Ukraine, am addressing you with an information request and, based on the requirements of Articles 34 and 40 of the Constitution of Ukraine and Articles 29, 32, and 33 of the Law of Ukraine ‘On Information’, I request that you provide information regarding the activities of the penal institutions of your region in 2005 and separately in the first half of 2006. I draw your attention to the fact that a similar request was sent to you by me on behalf of the non-governmental organisation ‘Donetsk Memorial’ via letter No 86 dated 18 July 2006, however, you did not provide any response, which is a violation of the requirements of the Constitution of Ukraine and information legislation. Please inform me of the data that is absent on the Department’s website, namely:

1. The number of persons who were held in places of deprivation of liberty in your region as of 01.01.2006 and as of 01.07.2006,
including separately:
- HIV-infected,
- patients with tuberculosis.
2. The number of persons who entered the region's penal institutions during 2005 and separately in the first half of 2006:
3. The number of persons released from the region's places of deprivation of liberty in 2005 and separately in the first half of 2006:
- in total,
- including on parole.
4. The number of persons who died while in the places of deprivation of liberty of your region in 2006 and separately in the first half of 2006,
- including suicide cases.
5. The number of complaints from convicted persons (please note: not appeals, but specifically complaints, and not from all citizens, but only from the imprisoned — convicts and SIZO residents) submitted to the Department’s Directorate in your region during 2005 and separately in the first half of 2006, in total,
as well as the number of satisfied complaints or those recognised as well-founded.
6. The total area allocated for the housing of convicted persons in the institutions of the Department’s Directorate in your region, as well as the total area in the SIZO of your region allocated for the housing of imprisoned persons, as of 01.01.2006.

I draw your attention to the mandatory nature of providing the requested information in accordance with the requirements of information legislation. Please send the response to the postal address:

P.O. Box 4836, Donetsk 83092

Thank you in advance for your attention to this request.

Sincerely,
Oleksandr BUKALOV
14.09.2006