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General Lawyers

If the form of the protocol or one’s discretion is greater than the Law’s letter

In the beautiful city of Mozyr, traffic inspectors introduce new participants to the administrative process and sources of evidence into PICoAP of Republic of Belarus. You can read more about this HERE. However, in one of the capital’s major police departments, they went further and made the protocol for an administrative offense higher than that of the Procedural & Executive Code of Republic of Belarus on Administrative Offenders. According to some police inspectors in the district, it’s not the PIKoAP of Belarus that creates legal regulations. Instead, the protocol on administrative offense, which was developed by the Central Internal Affairs Department of Minsk City Executive Committee, dictates to the district inspectors which norms of this PICoAP can be applied.

Today’s story reminded me of an incident in which I was conducting my first criminal case in 2014. In the court of Central District Minsk, a large number of law students were present. I asked a traffic inspector questions and received his answer to my question: “What regulatory legal acts were followed by the traffic inspector when examining the driver of alcohol?” The same DPS inspector responded as follows: “by act and protocol of examination”. To my question about when procedural documents became normative, the inspector thoughtfully sat silently and surveyed the floor. These answers were laughed at by law students. However, it seems that the traffic police inspector wasn’t confused by his knowledge, and didn’t believe he was wrong. The situation has only gotten worse over the last four years. First, let’s get to the point.

In January-March 2018, I was able to defend a citizen of the Republic of Belarus who was accused of appearing in public in a drunken condition that offends morality and dignity. At 01:30, police officers took the citizen into custody in a cafe. The citizen was then released at 08:15. The actual time spent in detention was 7 hours and 30 mins. All of this occurred without the need for any documentation or registration of the protocol regarding detention.

Let’s move on to the text.

Article 8.4 of Code of Administrative Offenses, Part 1, stipulates that an administrative detention of an individual in an administrative proceeding may not exceed three hours unless otherwise provided by the Code of Administrative Offenses.

Article 8.4 of Code of Administrative Offenses, Part 2, outlines cases where detention may last for more than three hours but not longer than 72 hours. None of these cases were relevant to citizen N.’s situation, as referred to in the article.

A protocol is created by the official responsible for the administrative detention of an individual . This protocol is in accordance with Article 4 of Article 8.4 of Code of Administrative Offenses. The protocol on the administrative offense shall specify the time an individual is held in administrative detention for not more than three hours .

Article 8.5 of the Code of Administrative Offences of the Republic of Belarus outlines the content and form of the detention protocol. It also includes the obligation to explain the right of the accused to have a defense lawyer.

During the investigation of the case, it was my good fortune to interview the local police inspector who had drafted a protocol for an administrative offense against citizen N.

The interviewee explained to the inspector that he hadn’t held citizen N. for longer than three hours. He was then asked a reasonable question about why in such a case in the protocol for an administrative offense he didn’t indicate the actual time of detention as required by Article 4. of Article 8.4 of Code of Administrative Offenses of Republic of Belarus.

District police inspector replied that there was no separate column to indicate this information in the protocol for administrative offense. Further, the inspector of district police said that the protocol form was created by the Central Internal Affairs Department at the Minsk City Executive Committee. I should ask them any questions.

My question was “What should have you been guided by? The norm of Part 4 of Article 8.4 of Code of Administrative Offenses which requires you to enter relevant data about the time of detention and the form of the protocol?” The district police inspector stated clearly and firmly that he had been guided by the GUVD’s protocol on administrative offenses. He reiterated that any questions should be directed to the GUVD.

All. After such amazing answers from defenders, I didn’t have any questions about this subject.

Another hero was also part of this story: a senior inspector from the operational and duty services, who placed N., who allegedly arrived in a drunken condition, and insulting human dignity, in the KPZ.

This subject was not able to be interrogated during the investigation of the case. However, based on his explanations it seems that he placed citizen N. in the KPZ without completing any documents, as he didn’t feel the need to do so.

Let’s move on to the next regulatory act.

Paragraph 11 of the Rules for the detention of an individual in respect of whom administrative detention has been applied, approved by the Resolution of the Council of Ministers of the Republic of Belarus No. 21.11.2013 996. The grounds for keeping detainees in detention are:

Protocol for administrative detention of an individual

A decision of an administrative body on the deportation of a stateless or foreign citizen, made in accordance with the Code of Administrative Offenses.

None of the documents above were created.

In the 21st Century, in a legal state according to the Constitution, without any ground, without drawing up procedural documentation, and guided by his own discretion; an individual law enforcer illegally restricts or even deprives a citizen of Republic of Belarus of his liberty.

Some officers introduce new people to the PICoAP process; others use new evidence sources when prosecuting citizens; yet others carry out a procedural motion – an examination of alcohol and drugs and bring to justice the illegal results. The fourth warns of responsibility under an Article where the subject is not a subject. The fifth does not know anything about the institution for the right to a defense during the administrative process. Sixths in court state that when it is profitable, “So, the law doesn’t prohibit it.”

The seventh is guided by the protocol on administrative offenses (or examination), but not by the code that specifies what the protocol form should contain. This list could go on.

A reasonable rhetorical question is: Why do we need PICoAP? If the majority of law enforcement officers ignore its norms and don’t comply with it at their local level by drafting procedural documents and making changes to it. As in the case citizen N., in general they are not guided by the Law’s letter but the protocol and their discretion?

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