Detention and delivery of a conscript to the TCC – KupAP and Cabinet Resolution 560 determine the grounds differently

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The Code of Criminal Procedure establishes that a person can be brought to the TCC for the purpose of drawing up a report on an administrative offense “in the event that it is impossible to draw it up at the place of the offense, if drawing up a report is mandatory”, and Cabinet Resolution 560 allows a person to be detained simply in case of refusal to receive a summons .

Resolution of the Cabinet of Ministers No. 560 on the Procedure for Conscription of Citizens for Military Service during Mobilization defines several cases in which a person may be detained and taken to the TCC. According to the law on mobilization, the Code of Administrative Offenses and the Cabinet of Ministers, it is up to the police officers to carry out such detention. At the same time, the resolution of the CMU No. 560 enters into a certain contradiction with the Code of Criminal Procedure in terms of cases when a person can be detained.

Thus, in accordance with the Procedure approved by Resolution No. 560, the heads of TCCs are given the right to take measures together with police representatives for administrative detention and delivery to district (city) TCCs of persons who:

  • refuse to receive subpoenas
  • or violated the rules of military accounting.

The conjunction “or” indicates that a person may formally not violate the rules of accounting, but if he was offered to receive a summons, then for refusal, he can be detained “until the circumstances are clarified.”

In fact, Resolution 560 mentions administrative detention twice – in the first case during notification measures in the event of refusal of a subpoena, in the second – during the verification of documents in the event “refusal to proceed to the TCC” (that is, a kind of “third” basis appears).

So, during notification measures in case of refusal to receive a summons, a police officer who is part of the alert group conducts administrative detention and transport of the citizen to the district (city) TCC on the basis of Articles 261 and 262 of the Code of Administrative Offenses.

In addition, during the verification of military registration documents from citizens in the event that it is established that the citizen violates the rules of military accounting, defined by the Procedure for organizing and maintaining military accounting of conscripts, conscripts and reservists, approved by Resolution of the CMU No. 1487 or According to the Law “On Mobilization Training and Mobilization”, the detection of discrepancies between the military accounting document and the military accounting data of the Unified State Register “Oberig” the senior alert group (judging by the resolution, the senior can only be a representative of the TCC – ed.) offers a reservist or conscript required to proceed to the district (city) TCC for military registration, undergo a medical examination to determine suitability, clarify personal data, military registration document data with military registration data of the “Oberig” Register.

For this purpose, a summons is drawn up and served to the citizen.

And already in this case refusal to proceed to the TCC a police officer who is part of the alert group carries out administrative detention and delivery of a citizen to such a center on the basis of Articles 261 and 262 of the Code of Criminal Procedure.

In addition, the TCC may separately apply to the police for administrative detention and delivery to the district (city) TCC of persons who have committed administrative offenses provided for in Articles 210 (violations by conscripts, conscripts, reservists of the rules of military registration) and 210-1 of the Criminal Procedure Code (violations legislation on defense, mobilization training and mobilization).

In turn, the heads of territorial bodies (subdivisions) of the police organize, at the request of the TCC, administrative detention and delivery of police bodies (subdivisions) to the specified centers and bodies of reservists and conscripts who have committed administrative offenses provided for in Articles 210 and 210-1. Administrative detention of such persons is carried out regardless of their place of stay in the military register. In this case, the person is taken to the nearest TCC.

How administrative detention is regulated by the Criminal Procedure Code

Article 259 of the Code of Administrative Offenses establishes that a person can be brought to the TCC for the purpose of drawing up a protocol on an administrative offense if it is impossible to make it at the place of commission of the offense, if drawing up the protocol is mandatory.

At the same time, according to the amendments to Article 258 of the Code of Criminal Procedure, introduced recently thanks to the draft law on absentee fines 10379, the protocol is not drawn up in the case of committing during a special period of administrative offenses provided for by Articles 210, 210-1 of the Code of Administrative Offenses, the consideration of which is assigned to the competence of the TCC, if the person did not appear without valid reasons or did not inform the TCC of the reason for not arriving when summoned, having been duly informed of the date, the time and place of the summons, and if the TCC has documents confirming that the person received the summons.

Article 260 of the Criminal Procedure Code directly defines the set of conditions under which administrative detention is possible:

“In the cases expressly provided for by the laws of Ukraine, in order to stop administrative offenses, when other measures of influence have been exhausted, identifying the person, drawing up a protocol on an administrative offense in case it is impossible to draw it up at the place of commission of the offense, if drawing up a protocol is mandatory, ensuring timely and correct consideration of cases and implementation of resolutions in cases of administrative offenses, administrative detention of a person, personal inspection, inspection of things and seizure of things and documents are allowed.”

Article 261 of the Code of Criminal Procedure, mentioned in Cabinet Resolution No. 560, specifies that a protocol is drawn up on administrative detention, which specifies: the date and place of its compilation; position, surname, name and patronymic of the person who drew up the protocol; information about the detainee’s identity; time and reasons for detention.

The protocol is signed by the official who drew it up and the detainee.

If the detainee refuses to sign the protocol, a record of this is made in it.

The whereabouts of a person detained for committing an administrative offense shall be immediately notified to his relatives, and upon his request, also to the owner of the relevant enterprise, institution, organization or body authorized by him.

Bodies (officials) authorized to carry out administrative detention shall inform centers for providing free secondary legal assistance about each case of administrative detention of persons in accordance with the procedure established by the CMU, except for cases where the person is defending himself personally or has invited a defense attorney.

In turn, Article 262 “Bodies (officials) authorized to carry out administrative detention” specifies that the administrative detention of a person who has committed an administrative offense can be conducted only by bodies (officials) authorized by the laws of Ukraine.

Administrative detention is carried out by internal affairs bodies (the National Police) when conscripts, conscripts, and reservists violate the rules of military registration, violation of legislation on defense, mobilization training, and mobilization.

Administrative detention of a person who has committed an administrative offense may last no more than 3 hours.

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