At the beginning of 2023, a protocol for an administrative offense was drawn up against the client under Part 1 of Article 130 of the Code of Ukraine on Administrative Offenses — refusal to undergo an examination for intoxication. The penalty for this offense includes a substantial fine and the deprivation of the right to drive a vehicle for a period of one year.
During the consideration of the case, attorney Rostyslav Salamakha drew the court’s attention to a number of circumstances indicating violations of procedure by the police and the potential provocation on their part.
In particular, the defense emphasized that immediately after the vehicle was stopped, the client voluntarily agreed to undergo an examination at a medical facility, as he had not used narcotic substances. However, during the ride in the patrol police vehicle, the officers began to convince him of the futility of taking the test, asserting that the results would inevitably be positive, regardless of the actual state of the driver. At the same time, the police officers falsely informed the driver about the legal consequences of undergoing the examination, misleading him and repeatedly attempting to induce him to refuse.
Furthermore, the attorney pointed out that during the preparation of the administrative offense protocol, the police officers did not explain the client’s rights in accordance with the requirements of the Code of Ukraine on Administrative Offenses, significantly limiting the possibilities for defense.
In support of his position, the attorney submitted the results of an independent drug testing conducted the day after the incident. The test results were negative, which further disproved the assumption that the client was in a state of intoxication. The attorney also took an active stance in reviewing the video footage from the body cameras of the police officers.
After carefully examining the case circumstances, the court concluded that the behavior of the police officers essentially amounted to provocation, which is unacceptable under the standards of the right to a fair trial.
In his legal position, the attorney drew attention to the following decisions of the European Court of Human Rights:
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Schmautzer v. Austria (October 23, 1995), which states that traffic offenses for which fines or driving license restrictions may be imposed fall under the definition of a “criminal charge.”
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Ozturk v. Germany (February 21, 1984), paras. 52-54, Series A No. 73; Lauko v. Slovakia (September 2, 1998), paras. 56-59, Reports of Judgments and Decisions 1998-VI, which indicate that administrative offenses are criminal for the purposes of applying the Convention.
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Luchaninova v. Ukraine, in which the Court concluded that given the general nature of the legislative provision violated by the applicant in this case, as well as the preventive and punitive goals of the sanctions provided under this provision, the Court considers the proceedings in this case (administrative offense case) to be criminal for the purposes of applying the Convention.
The deprivation of the right to drive a vehicle is also considered by the European Court of Human Rights as a criminal sanction, as “the right to drive a car is very useful in daily life and for conducting activities” (European Court of Human Rights decision in the case of Malige v. France, September 23, 1998).
In the case Nechiporuk and Yonkalo v. Ukraine, the European Court of Human Rights stated that evidence obtained in criminal proceedings in violation of the established procedure renders the trial unfair as a whole, regardless of the evidentiary value of such evidence and whether its use had a decisive impact on the conviction of the defendant by the court.
The European Court of Human Rights defines police provocation as instances when officials, who are either employees of security agencies or persons acting on their behalf, do not limit their actions solely to investigating the criminal case on its merits in an implicit manner, but rather influence the subject with the aim of provoking them to commit a crime that would not otherwise have been committed, in order to detect a crime, gather evidence, and initiate criminal proceedings (decision of the European Court of Human Rights in the case of Ramanauskas v. Lithuania, February 5, 2008).
Additionally, the court decision quoted:
“Given the specific circumstances of this case, it is evident that without the actions of the police officer, the offense would not have occurred, meaning there was incitement (provocation) of the driver to refuse the examination. Evidence obtained as a result of inciting a person to commit an offense is considered inadmissible. Therefore, the evidence present in the case, examined by the court, which was included in the protocol when the case was sent to court, is inadmissible and does not confirm the client’s guilt in committing the administrative offense under Part 1 of Article 130 of the Code of Ukraine on Administrative Offenses.”
The court ruling closed the administrative offense case due to the established absence of an event and the elements of the administrative offense.
This case once again highlights the importance of law enforcement agencies adhering to lawful procedures and the unflinching protection of the rights of individuals subject to administrative liability.
#administrative offense #patrol police #provocation #representation in court