Court ruling regarding the unlawful actions of the head of the Department administration in the Mykolaiv region
Decision of the Budionivskyi District Court of Donetsk, dated 14 September 2007, regarding the administrative lawsuit filed by Oleksandr Bukalov, head of the human rights organisation “Donetsk Memorial”, concerning the unlawful refusal to provide information by the Head of the Department administration in the Mykolaiv region, O.V. Honcharenko. Provided are the texts of the court decision and the administrative lawsuit.
court decision,
administrative lawsuit
Case No. 2-a-67/2007
JUDGMENT
IN THE NAME OF UKRAINE
14 September 2007, Donetsk
The Budionivskyi District Court of Donetsk, composed of:
Presiding Judge: O.O. Tymchenko,
Secretary: O.O. Avramenko,
with the participation of
the plaintiff: O.P. Bukalov,
having considered in an open court hearing the administrative case concerning the lawsuit filed by Oleksandr Pavlovych Bukalov against the Administration of the State Department for the Execution of Punishments in the Mykolaiv region regarding the unlawful refusal to provide information by the Head of the Administration of the State Department for the Execution of Punishments in the Mykolaiv region, -
ESTABLISHED:
On 5 December 2006, the plaintiff appealed to the Budionivskyi District Court of Donetsk with an administrative lawsuit regarding the unlawful actions of the Head of the Administration of the State Department for the Execution of Punishments in the Mykolaiv region, stating that, as the chairman of the council of the “Donetsk Memorial” organisation, he conducts research in the field of penal system reform, in connection with which he addressed letter No. 86 dated 18 July 2006, containing an information request, to the Head of the Administration of the State Department for the Execution of Punishments in the Mykolaiv region, O.V. Honcharenko, with a request to provide information regarding the activities of penal institutions in the Mykolaiv region. In the received response No. 22/2-1845, dated 31 July 2006, signed by the Head of the Department administration, it was stated that he requested the submission to the Administration of documentation evidencing the purpose of the organisation’s creation and its state registration. Effectively, by the aforementioned letter, he was refused the provision of information. After which, he again addressed the defendant with letter No. 98 dated 6 August 2006, in which he suggested paying attention to the Law of Ukraine “On Information”, which states that the requested information must be provided without artificial conditions. In the subsequent response, the Department administration, in No. 22/2 dated 18 February 2006, indicated that information could be provided only on the condition of an existing agreement between “Donetsk Memorial” and the Department administration, and since no such agreement exists, the Department administration would not provide the information. He considers that the refusal bears the hallmarks of an offence provided for by paragraph 'g' of Article 5 of the Law of Ukraine “On Combating Corruption”, and thus his constitutional right is being violated. He requests that the court recognise the failure to provide the requested information by the Head of the Administration of the State Department for the Execution of Punishments in the Mykolaiv region, O.V. Honcharenko, as unlawful and compel the Head of the Administration of the State Department for the Execution of Punishments in the Mykolaiv region, O.V. Honcharenko, 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 Mykolaiv region in accordance with the information request of 18 July 2006.
In the court session, the plaintiff upheld his claims in full, in justification of which he provided explanations analogous to those stated in the administrative lawsuit, and additionally explained to the court that the defendant’s assertions regarding his agreement to provide information on the condition of receiving information about the registration of “Donetsk Memorial”, data on the nature of his activities, legal status, and a cooperation agreement with the Department administration, are not based on the requirements of current legislation. Furthermore, by putting forward such demands, the defendant did not explain why he required such information. Regarding the condition of having an agreement with the Department administration in order to be provided with information, the Law of Ukraine “On Information” stipulates that the provision of information upon request is established by this Law or by a contract (agreement) if the provision of information is carried out on a contractual basis. That is, the provision of information under a contract is applied when a contract exists, when the parties have agreed to conclude such a contract. Concluding a contract is not a mandatory element for receiving information, and its conclusion is a choice of the parties. Furthermore, he repeatedly appealed to the leadership of the Department in Kyiv regarding the failure to provide information by some of its territorial bodies. Eventually, the department leadership issued instruction No. 1/1-1198/Kn. on 23 March 2007, which stated that heads of territorial administrations must ensure strict compliance with the requirements of information legislation when informing citizens and civil organisations about the activities of bodies and institutions for the execution of punishments, in particular when providing information upon request.
The defendant did not appear in the court session, although he was duly notified, but the defendant’s representative by proxy, A.F. Usatyuk, questioned during the court session in accordance with the mandate of the Budionivskyi District Court of Donetsk, explained that they do not acknowledge the administrative lawsuit and are willing to provide information on the condition of providing information about the registration of “Donetsk Memorial”, data on the nature of activities, legal status, and a cooperation agreement with the Administration of the State Department for the Execution of Punishments. He does not wish to be present in the court session during the consideration of the case and agrees to the consideration of the case in his absence.
In connection with this, the court deems it possible to consider the case in the absence of the defendant’s representative, whose personal explanations are not necessary, based on the case materials.
The court, having heard the plaintiff and examined the case materials within the limits of the stated claims, considers the lawsuit justified and subject to satisfaction for the following reasons.
In accordance with Article 40 of the Constitution of Ukraine, everyone has the right to send individual or collective written appeals or to personally apply to state authorities, local self-government bodies, and the officials and officers of these bodies, who are obliged to consider the appeals and provide a reasoned response within the period established by law.
As is evident from the requirements of Parts 1 and 2 of Article 55 of the Constitution of Ukraine, human and citizen rights and freedoms are protected by the court. Everyone is guaranteed the right to appeal to a court against decisions, actions, or inaction of local self-government bodies, officials, and officers.
According to request No. 86 dated 18 July 2006, the plaintiff, indeed, appealed to the Head of the Administration of the State Department of Ukraine for the Execution of Punishments in the Mykolaiv region with a request to provide the following information: the number of persons held in places of imprisonment in the Mykolaiv region as of 01.01.2006 and 01.07.2006, including separately: convicted persons, those in pre-trial detention centres (SIZO), those sentenced to life imprisonment, HIV-infected persons, and those suffering from tuberculosis; the number of persons who arrived at penal institutions in the region during 2005 and separately in the first half of 2006; the number of persons released from places of imprisonment in 2005 and separately in the first half of 2006: in total, including those released on parole; the number of persons on the register in the penal inspection of the region as of 01.01.2006 and separately as of 01.07.2006; the number of persons who died while in places of imprisonment in the region in 2006 and separately in the first half of 2006, including cases of suicide; the number of complaints from convicted persons submitted to the Department administration during 2005 and separately in the first half of 2006, in total, as well as the number of satisfied complaints or those recognised as unfounded; the total area allocated for the housing of convicted persons in the Department administration of the region, as well as the total area in the SIZO of the region allocated for the housing of detained persons as of 01.01.2006.
In accordance with the response of the Administration of the State Department of Ukraine for the Execution of Punishments in the Mykolaiv region No. 22/2-1845 dated 31.07.2006, O.P. Bukalov was informed that he needed to provide the Department administration with documentation evidencing the purpose of his organisation’s creation, its state registration, and simultaneously inform the Administration about the use and dissemination of the information provided to him subsequently.
As is evident from letter No. 98 dated 6 August 2006, the plaintiff again appealed to the Head of the Administration of the State Department for the Execution of Punishments in the Mykolaiv region, pointing out that the response provided to him on 31.07.2006, No. 22/2-1845, did not contain the information he had requested. Furthermore, the plaintiff clarified in the letter that the “Donetsk Memorial” organisation has been cooperating for a long time with bodies for the execution of punishments, and has repeatedly sent the “Aspect” bulletin to their institution, which contains all information about the activities of “Donetsk Memorial” and from which it is evident how the obtained information is used. Furthermore, the plaintiff indicated that, in accordance with current legislation, the requested information must be provided without artificial conditions.
After which, in accordance with the letter of the Administration of the State Department of Ukraine for the Execution of Punishments in the Mykolaiv region dated 08.08.2006, No. 22/2-2007, the plaintiff was informed that participants in information relations are obliged to use information in accordance with a contract or agreement, and no such agreement was concluded.
Having examined the aforementioned evidence, the court considers that the Administration of the State Department of Ukraine for the Execution of Punishments in the Mykolaiv region effectively refused the plaintiff the provision of the requested information.
In accordance with the requirements of Article 32 of the Law of Ukraine “On Information”, an information request (hereinafter - request) regarding access to official documents in this Law is understood as an appeal with a demand to provide the opportunity to familiarise oneself with official documents. A request can be individual or collective. It is submitted in written form.
A citizen has the right to appeal to state bodies and demand the provision of any official document, regardless of whether this document concerns him personally or not, except for cases of restricted access provided for by this Law.
Under a request for the provision of written or oral information in this Law, it is understood as an appeal with a demand to provide written or oral information about the activities of bodies of the legislative, executive, and judicial branches of Ukraine, and their officials regarding specific issues.
Citizens of Ukraine, state bodies, organisations, and associations of citizens (hereinafter - requesters) submit a request to the appropriate body of the legislative, executive, and judicial branch, or its officials.
The request must state the surname, first name, and patronymic of the requester, the document, written or oral information they are interested in, and the address at which they wish to receive a response.
Bodies of the legislative, executive, and judicial branch of Ukraine and their officials are obliged to provide information concerning their activities in writing, orally, by telephone, or using public speeches by their officials.
As is evident from request No. 86 dated 18 July 2006, the plaintiff complied with all the requirements of current legislation when sending the request, and according to the response of the Administration of the State Department of Ukraine for the Execution of Punishments in the Mykolaiv region, the defendant violated the requirements of Part 6 of Article 32 of the Law of Ukraine “On Information”.
Also, the court cannot agree with the defendant’s arguments regarding the fact that, in accordance with Article 44 of the Law of Ukraine “On Information”, participants in information relations are obliged to use information according to a contract or agreement, since Article 44 of the Law of Ukraine “On Information” states that participants in information relations are obliged: ... “to use information in accordance with the law or a contract (agreement)”; in this case, the plaintiff acts in accordance with the Law.
Furthermore, in accordance with the requirements of Part 2 of Article 29 of the Law of Ukraine “On Information”, the procedure and conditions for providing information to citizens, state bodies, legal entities, and representatives of the public upon request are established by this Law or by contracts (agreements), if the provision of information is carried out on a contractual basis.
Proceeding from the requirements of the Law, the provision of information under a contract is applied when the parties have agreed to conclude a contract, but the Law does not provide for the mandatory conclusion of a contract for receiving information, therefore the court considers the plaintiff’s arguments justified.
Based on the above, the court has reached the conclusion that the actions of the Head of the Administration of the State Department for the Execution of Punishments in the Mykolaiv region regarding the failure to provide the plaintiff with a response to the request of 18 July 2006 were indeed unlawful and considers it necessary to compel him to provide a proper response to the plaintiff.
On the basis of the above and guided by Articles 11, 12, 158-163, 167 of the Code of Administrative Legal Proceedings of Ukraine, the court -
JUDGED:
The claims of Oleksandr Pavlovych Bukalov are to be satisfied in full.
The failure of the Head of the Administration of the State Department for the Execution of Punishments in the Mykolaiv region, O.V. Honcharenko, to provide the information requested by O.P. Bukalov shall be recognised as unlawful.
The Head of the Administration of the State Department for the Execution of Punishments in the Mykolaiv region, O.V. Honcharenko, shall be compelled to provide the requested information regarding the activities of the penal institutions of the Administration of the State Department for the Execution of Punishments in the Mykolaiv region in accordance with the information request No. 86 dated 18 July 2006.
A declaration of appeal and an appeal petition shall be submitted to the administrative court of the appellate instance through the court of the first instance which rendered the appealed court decision. A copy of the appeal petition shall be simultaneously sent by the person submitting it to the appellate instance.
A declaration of appeal against the judgment of the court of the first instance shall be submitted within ten days from the date of its proclamation.
An appeal petition against the court judgment shall be submitted within twenty days after the submission of the declaration of appeal.
An appeal petition may be submitted without prior submission of a declaration of appeal if the petition is submitted within the period established for the submission of the declaration of appeal.
To the Budionivskyi District Court of Donetsk
Oleksandr Pavlovych Bukalov
regarding the unlawful refusal to provide
information by the Head of the Administration
of the State Department for the Execution
of Punishments in the Mykolaiv region
Mr. O.V. Honcharenko
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 letter No. 86 dated 18 July 2006, containing an information request, to the Head of the Administration of the State Department for the Execution of Punishments in the Mykolaiv region, O.V. Honcharenko, with a request to provide information regarding the activities of penal institutions in the Mykolaiv region. The information request was sent by letter (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. 22/2-1845 dated 31 July 2006, signed by the Head of the Administration of the State Department for the Execution of Punishments in the Mykolaiv region, O.V. Honcharenko, a demand is put forward: “We ask you, for the provision of information... to submit to the Administration of the State Department of Ukraine for the Execution of Punishments in the Mykolaiv region documentation evidencing the purpose of your organisation’s creation, its state registration, and in accordance with Articles 5, 44 of the mentioned Law, to inform the Administration about the use and dissemination of the information provided to you subsequently.” Effectively, by this letter, Mr. O.V. Honcharenko refuses me the requested information, as he does not provide it.
By letter No. 98 dated 6 August 2006, I addressed the Head of the Administration of the State Department for the Execution of Punishments in the Mykolaiv region, O.V. Honcharenko, in which it was proposed to “pay attention to the fact that, according to the Law ‘On Information’, the information requested by us must be provided without artificial conditions; therefore, the provision to you of ‘documentation evidencing the purpose of creation’ of our organisation cannot be a prerequisite for satisfying our request.”
The subsequent response of the administration, delivered by letter No. 22/2-2007 dated 18 August 2006, states that information can be provided in accordance with an agreement between our organisations, but since no such agreement exists, the administration will not provide me with the information.
This refusal, in my view, also bears the hallmarks of an offence provided for by paragraph 'g' of Article 5 of the Law of Ukraine “On Combating Corruption”.
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 of the Head of the Administration of the State Department for the Execution of Punishments in the Mykolaiv region, O.V. Honcharenko, to provide me with the requested information as unlawful.
2. To compel the Head of the Administration of the State Department for the Execution of Punishments in the Mykolaiv region, O.V. Honcharenko, 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 Mykolaiv region in accordance with the information request dated 18 July 2006.
I request that this administrative lawsuit be considered in my absence.
Attachments
1. Copy of information request No. 86 dated 18 July 2006 – 2 copies.
2. Copy of response letter No. 22/2-1845 dated 31 July 2006 – 2 copies.
3. Copy of repeat information request No. 98 dated 6 August 2006 – 2 copies.
4. Copy of response No. 22/2-2007 dated 18 August 2006 – 2 copies.
5. Copy of COMPLAINT.
6. Receipt for payment of the court fee.
22 November 2006 Oleksandr BUKALOV