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DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE

of June 29, 2010 No. 17-rp/2010

On case on the constitutional representation of the Representative of the Verkhovna Rada of Ukraine on human rights concerning compliance of the Constitution of Ukraine (constitutionality) of the paragraph of the eighth Item 5 parts one of article 11 of the Law of Ukraine "About militia"

Case No. 1-25/2010

NAME OF UKRAINE

Constitutional court of Ukraine consisting of judges:

Strizhak Andrey Andreevich - the chairman,

Baulin Yury Vasilyevich,

Vdovichenko Sergey Leonidovich,

Vinokurov Sergey Markiyanovich,

Golovin Anatoly Sergeyevich,

Dzhunya Vyacheslav Vasilyevich,

Didkovsky Anatoly Aleksandrovich - the speaker,

Dombrovsky Ivan Petrovich,

Kamp Vladimir Mikhaylovich,

Mikhail Ivanovich's ear,

Lilak Dmitry Dmitriyevich,

Markush Maria Andreevna,

Machuzhak Yaroslava Vasilyevna,

Ovcharenko Vyacheslav Andreevich,

Stetsyuk Pyotr Bogdanovich,

Tkachuk Pavel Nikolaevich,

Shishkin Victor Ivanovich,

with the assistance of representatives of the person of law on the constitutional representation: Kuzmenko Valentina Pavlovna, Targulova Irina Gerasimovna, Fadeyeva Nina Nikolaevna - advisers to the Representative of the Verkhovna Rada of Ukraine for human rights, the Permanent representative of the Verkhovna Rada of Ukraine in the Constitutional Court of Ukraine Selivanov Anatoly Aleksandrovich, the representative of the Prosecutor General's Office of Ukraine Kudryavtsev Victor Viktorovich - the deputy attorney general of Ukraine, representatives of the Ministry of Internal Affairs of Ukraine: Ratushnyak Victor Ivanovich - the deputy minister of internal affairs of Ukraine, Prindyuk Gennady Ippolitovich - the head of department of legal providing the Ministry of Internal Affairs of Ukraine,

considered at plenary meeting case on the constitutional representation of the Representative of the Verkhovna Rada of Ukraine on human rights concerning compliance of the Constitution of Ukraine (constitutionality) of the paragraph of the eighth Item 5 parts one of article 11 of the Law of Ukraine "About militia" of December 20, 1990 N 565-XII (Sheets of the Verkhovna Rada of USSR, 1991, N 4, the Art. 20) with subsequent changes.

Reason for consideration of the case according to Articles 39, 40 Laws of Ukraine "About the Constitutional Court of Ukraine" became the constitutional representation of the Representative of the Verkhovna Rada of Ukraine for human rights.

The basis for consideration of the case according to article 82 of the Law of Ukraine "About the Constitutional Court of Ukraine" is availability of the matter of argument concerning constitutionality of the provision specified in the constitutional representation found by the Representative of the Verkhovna Rada of Ukraine for human rights in the course of activities.

Having heard the judge-speaker Didkovsky A. O., Kuzmenko V. P., Targulova I. G. explanations., Selivanova A. O., Kudryavtseva V. V., Prindyuk G. I. and having researched case papers, the Constitutional Court of Ukraine established:

1. The person of law on constitutional predstavleniyeupolnomochenny the Verkhovna Rada of Ukraine on human rights - appealed to the Constitutional Court of Ukraine with the petition to recognize unconstitutional provision of the paragraph of the eighth Item 5 parts one of article 11 of the Law of Ukraine "About militia" of December 20, 1990 N 565-XII with subsequent changes (further - the Law) according to which the militia is granted the right to detain and keep in rooms of persons specially allotted for this purpose which are suspected of occupation by vagrancy, for a period of up to 30 days on the motivated judgment.

The author of the petition claims that the challenged provision contradicts Articles 29, of 33, 58 Constitutions of Ukraine as violates the rights of citizens to freedom and security of person, freedom of travel and the free choice of the place of residence and grants the right to employees of militia to apply enforcement measures to persons for acts which are not recognized offense according to the legislation of Ukraine.

2. The line items concerning subject of the constitutional representation were stated by the President of Ukraine, the Chairman of the Verkhovna Rada of Ukraine, the Chairman of the Supreme Court of Ukraine, the Prosecutor General's Office of Ukraine, the Ministry of Justice of Ukraine, the Ministry of Internal Affairs of Ukraine, scientists of National legal academy of Yaroslav the Wise, the Odessa national legal academy, the Kiev national university of internal affairs, the Kharkiv national university of internal affairs, the Lviv state university of internal affairs.

3. Constitutional court of Ukraine, resolving the question which is brought up in the constitutional representation, proceeds from the following.

3.1. Ukraine is the democratic, constitutional state; the person, his life and health, honor and advantage, immunity and safety are recognized Ukraine the highest social value; human rights and freedoms and their guarantees determine content and orientation of activities of the state which answers to the person for the activities; approval and providing human rights and freedoms is the main debt of the state (Article 1, of part one, the second article 3 of the Constitution of Ukraine).

In Ukraine the principle of supremacy of law (part one of Article 8 of the Fundamental Law of Ukraine) is recognized and is effective. The constitutional court of Ukraine in the paragraph the second subitem 4.1 of item 4 of motivation part of the Decision of November 2, 2004 of N 15-rp/2004 noted that supremacy of law demands from the state of its embodiment in law-making and law-enforcement activities, in particular in the laws which on the content shall be imbued first of all with the ideas of social justice, freedom, equality and so forth.

One of elements of supremacy of law is the principle of legal definiteness as which affirms that restriction of fundamental human rights and the citizen and the embodiment of these restrictions in practice is admissible only on condition of ensuring predictability of application of the precepts of law established by such restrictions. I.e. restriction of any right shall be based on criteria which will give the chance to person to separate from good behavior illegal, to provide legal effects of the behavior.

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