In the event of non-cooperation on the part of a foreigner or a stateless person during the procedure for his identification and failure to receive information from the country of citizenship of the foreigner or the country of origin of the stateless person or the documents necessary for the identification of the person, the term of detention of such a person may be extended by filing an appropriate administrative lawsuit , which is submitted every six months.
About the grounds for extending the term of detention in accordance with the provisions of Art. 289 CAS of Ukraine
On November 19, 2020, the Supreme Court, as part of the panel of judges of the Cassation Administrative Court, considered the cassation appeal of PERSON_1 against the decision of the Ripkinsky District Court of Chernihiv Region dated July 3, 2020 and the decision of the Sixth Administrative Court of Appeal dated July 22, 2020 in case No. 743/859/20 on the claim of the Central Interregional Administration of the State Migration Service in the city of Kyiv and the Kyiv region to the citizen of the Russian Federation PERSONAL_1 about the extension of the detention period.
CIRCUMSTANCES OF THE CASE
The plaintiff appealed to the court with the specified lawsuit, in which he asked to extend the term of detention of the citizen of the Russian Federation PERSON_1 for six months.
In the justification of the claims, it is stated that the defendant, according to the decision of the Pechersk District Court of the city of Kyiv dated January 8, 2020, was detained and placed in the PTPI in order to ensure his transfer in accordance with the international treaties of Ukraine on readmission for a period of six months. The plaintiff took measures to implement the court decision, at that time, it was impossible to initiate the readmission procedure according to the standard procedure due to the lack of cooperation of the defendant and the lack of information from the latter's country of citizenship regarding his identity.
By the decision of the Ripkinsky District Court of the Chernihiv Region dated July 3, 2020, which was left unchanged by the decision of the Sixth Administrative Court of Appeal dated July 22, 2020, the lawsuit was satisfied. The term of detention of the citizen of the Russian Federation PERSON_1 has been extended for six months.
The Supreme Court left the cassation appeal unsatisfied, and the decisions of the courts of previous instances remained unchanged.
ASSESSMENT OF THE COURT
According to the provisions of the eleventh and thirteenth parts of Article 289 of the Civil Code of Ukraine, the term of detention of foreigners and stateless persons in the points of temporary stay of foreigners and stateless persons illegally staying in Ukraine is six months. If there are conditions under which it is impossible to identify a foreigner or a stateless person, to ensure the forced deportation or readmission of a person within the specified period, or to make a decision based on an application to recognize him as a refugee or a person in need of additional protection in Ukraine, this period may be extended, but not for more than eighteen months.
The conditions under which it is impossible to identify a foreigner or a stateless person, to ensure forced deportation or readmission of a person are: 1) lack of cooperation on the part of a foreigner or a stateless person during the procedure for his identification; 2) non-receipt of information from the country of citizenship of a foreigner or the country of origin of a stateless person or documents necessary for identification of a person.
From the systematic analysis of the above legal norms, it follows that in case of non-cooperation on the part of a foreigner or a stateless person during the procedure for his identification and failure to receive information from the country of citizenship of the foreigner or the country of origin of the stateless person or the documents necessary for the identification of the person, the period of detention of such a person person can be extended by filing a corresponding administrative claim, which is filed every six months.
The Law of Ukraine dated June 5, 2013 "On the Ratification of the Agreement between the Cabinet of Ministers of Ukraine and the Government of the Russian Federation on Readmission" ratified the Agreement between the Cabinet of Ministers of Ukraine and the Government of the Russian Federation on readmission, signed on October 22, 2012. The specified Agreement, as well as the Instruction on the procedure for the implementation by the competent and authorized bodies of Ukraine of international agreements on the readmission of persons, approved by the order of the Ministry of Internal Affairs of Ukraine No. 158 dated February 16, 2015, determine the grounds and procedure for the implementation by the competent and authorized bodies of Ukraine of the provisions on readmission (acceptance-handover) citizens of both states, as well as the procedure for their interaction during readmission procedures.
According to the provisions of the specified instruction, conducting readmission measures with any contracting party involves a number of organizational measures, which include the procedure for identification of the person, exchange of information between the parties, and the very process of transferring the person from one competent authority to another competent authority.
Chapter VI of the Instructions on the forced return and forced deportation of foreigners and stateless persons from Ukraine, approved by the order of the Ministry of Internal Affairs of Ukraine, the Administration of the DPS of Ukraine, the SBU dated April 23, 2012 No. 353/271/150, defines the procedure for identifying and documenting foreigners. According to Clause 1 of Section VI of the said Instruction, if a foreigner does not have identity documents, the State Border Guard Service, the State Border Guard of Ukraine, or the Security Service take measures to identify and document the foreigner. For this purpose, appropriate requests are sent to the diplomatic missions or consular institutions of the foreigner's country of origin, which are accompanied by color photo cards for each person, filled-in questionnaires of the model specified by the consular institution and other information about the foreigner that makes it possible to establish the identity and confirm citizenship.
Thus, the questionnaire of the specified sample, filled out by a foreigner, is a necessary component for carrying out the foreigner's identification procedure.
In accordance with the fourth part of Article 30 No. 3773-VI, foreigners and stateless persons who do not have legal grounds for staying on the territory of Ukraine are detained in accordance with the established procedure and are subject to forced deportation outside Ukraine, including those accepted in accordance with Ukraine's international treaties on readmission , are placed in the points of temporary stay of foreigners and stateless persons who are illegally staying in Ukraine, during the period necessary for their identification and ensuring their forced expulsion (readmission) outside Ukraine, but for no more than 18 months.
Thus, citizens who do not have legal grounds for staying on the territory of Ukraine are subject to readmission, which in turn excludes the possibility of applying to them the procedure of forced deportation, and accordingly, detention for the purpose of placing foreigners and stateless persons who illegally staying in Ukraine for identification and ensuring forced deportation outside the territory of Ukraine.
However, in the absence of evidence that the defendant is a citizen of the Russian Federation, the possibility of applying the provisions of the Agreement to disputed legal relations is excluded.
The same legal conclusion was reached by the Supreme Court under similar factual circumstances of the case in the decision of February 7, 2019 in case No. 308/8109/17.
You can read more about the text of the decision of the Supreme Court of November 19, 2020 in case No. 743/859/20 at https://reyestr.court.gov.ua/Review/92972352 .