Statement of Claim (Administrative Suit)

Transcription

1 1 Unofficial translation District Administrative Court of the Kyiv City 01025, Kyiv City, 4/6 Desyatynna St. Plaintiff: Name: International Chartable Foundation International HIV/AIDS Alliance in Ukraine Postal address: 5 Dymytrova St., Building 10-А, 9th floor, 03680, Kyiv City Means of communication: tel./fax: (044) address: voytenko@aidsalliance.org.ua Plaintiff s Representative Name: Skala Pavlo Volodymyrovych Postal address: 5 Dymytrova St., Building 10-А, 9th floor, 03680, Kyiv City Means of communication: tel./fax: (044) ext 221 address: skala@aidsalliance.org.ua Respondent Name: Ministry of Health of Ukraine Postal address: 01601, Kyiv City, 7 Grushevsky St. Means of communication: tel. (044) , fax Statement of Claim (Administrative Suit) on declaring invalid (unlawful) the Ministry of Health of Ukraine Decree # 634 as of in defining amounts of some narcotic substances and precursors On October 29, 2010 came into force the Ministry of Health of Ukraine Decree # 634 as of On Approving Tables of Small, Large and Significantly Large Amounts of Narcotic Drugs, Psychotropic Substances and Precursors in Illicit Circulation, registered by the Ministry of Justice of Ukraine on October 7, 2010, reference # 900/ The order approves The Table of Small, Large and Significantly Large Amounts of Narcotic Drugs, Psychotropic Substances and Precursors in Illicit Circulation, including unreasonable amounts of narcotic substance opiate acetylated which contains acetylated derivatives of opiate alkaloids, also defines unreasonably large amounts of precursors: acetic anhydride, ephedrine and pseudo-ephedrine. Such articles of such MoH of Ukraine Decree conflict with the national interests, violate the National Constitution of Ukraine and other laws of Ukraine, contradict the Convention for the Protection of Human Rights and Fundamental Freedoms. The disputed order violates the Plaintiff s rights as implementing organization under the National Programme to Insure HIV prevention, Treatment, Care and Support for HIV Infected Persons and AIDS Patients in , as approved by the Law of Ukraine as of February 19, 2009 # 1026, namely Part 2, Article 2, Chapter II Aims and Activities of Attachment to the Programme, which insures provision to injecting drug users (IDUs) of social services on supplying sterile disposal medical products which should cover 60 % of IDUs by Stamped (DISTRICT ADMINISTRATIVE COURT) Date: April 27, 2011 (Signed)

2 As a result of adopting MoH of Ukraine Decree # 634 as of and coming into force new wording for The Tables of Small, Large and Significantly Large Amounts of Narcotic Drugs, Psychotropic Substances and Precursors in Illicit Circulation, level of criminalization of users of acetylated opiate based drugs (the most common illicitly consumed injecting drugs in Ukraine) in fact increased 20 times as compared to the previous MoH of Ukraine Decree which was in force prior to the disputed Decree, since criminal responsibility for illegal possession of drugs enters into force with possession of 0,005 gram of acetylated opiate (as compared to 0,1 gram in wording previously used). Investigative agencies, pre-trail investigation agencies and courts employed the Table to differentiate between illegal drug possession as a misdemeanour (Article 44 of the Code of Ukraine on Administrative Offences) and as a felony (Article 309 of the Criminal Code of Ukraine). Such amendments are unreasonable and unlawful such claim is supported by the fact that in the Russian Federation similar threshold of criminalization of acetylated opiate users is now 100 times higher, compared to Ukraine as criminal responsibility enters there into force for possession of 0.5 gram of acetylated opiate. Amounts of some most common for Ukraine precursors were unreasonably decreased in the Table for Significantly Large Amounts of Precursors in Illicit Circulation, including acetic anhydride 125 times (from 250 gram to 2 gram), ephedrine and pseudo-ephedrine 50 times (from 30 gram to 0.6 gram). On December 23, 2010 the Supreme Council of Ukraine adopted the Law of Ukraine N 2861-VI On Counteracting Spread of Diseases Caused by the Human Immune Deficiency Virus (HIV) and Social and Legal Protection of People Living with HIV, Paragraph 8, Article 4 of such law guarantees insuring prevention of HIV infection among injecting drug users (IDUs) under harm reduction programmes which among other activities foresee exchange of used injection needles and syringes for clean ones with further disposal of materials. Existing court practices on criminal cases in Ukraine demonstrate that often residue of acetylated opiate in a used syringe can amount to gram which is enough to charge the drug dependent person with a felony according to Article 309 of the Criminal Code of Ukraine which carry a term of incarceration of up to three years. Unreasonably increasing 20 times level of criminalization of illicit drug users who consume acetylated opiate directly effects 59,8 thousand persons or 76% of all officially registered by MoH of Ukraine patients with chronic opioid dependency. It should be noted that the number of drug dependent persons not registered by MoH is several times higher. As a result some articles of the MoH of Ukraine Decree in question conflict with government guaranties as defined in Paragraph 8, Article 4 of the aforesaid Law of Ukraine, conflict with the European Convention on Human Rights and a series of international agreements ratified by Ukraine, that prevent discrimination of patients (including patients with drug dependency) and guarantee access to treatment and prevention services. Article 24 of the Constitution of Ukraine insures equal constitutional rights and freedoms, and equality of citizens before the law. There are no privileges or barriers based on race, skin colour, political, religious and other beliefs, gender, national and social origin, economic status, birth, language or other status. According to Article 49 of the Constitution of Ukraine everyone has a right to health services, medical assistance and medical insurance. Health services are supported by state financing of social and economic, medical and sanitary as well as health prevention programmes. 2

3 According to Article 1 of the Law of Ukraine On Activities to Counteract Illicit Circulation of Narcotic Drugs, Psychotropic Substances and Precursors and Substance Abuse (N62/95-BP as of ): drug addiction is a psychotic dysfunction caused by dependency on a narcotic drug or psychotropic substance as a result of abuse of such drug or substance ; person with a drug addiction person suffering from psychotic dysfunction resulting from psychological or physical dependency on a narcotic drug or psychotropic substance and who upon medical examination organized in accord with such Law is provided a diagnosis drug addiction. Consequently a person suffering from a chronic condition, who is dependent on acetylated opiate in most cases cannot physically abstain from drugs, and as a result could be criminally prosecuted practically for illegal possession of drugs for personal use. Under over seventy harm reduction projects supported by the Plaintiff with financing from the Global Fund to Fight AIDS, Tuberculosis and Malaria within the last five years around 20 million used syringes were collected, most of which posed a threat for the general population as they were infected with HIV, Hep B and C; 4 million out of this number of used syringes were collected in October 2009 September However, upon analyzing report data the Plaintiff claims that respective projects in fourth quarter of 2010 and first quarter of 2011 have recorded a decreasing trend in number of used syringes collected by drug users for exchange, caused by the fear of criminal prosecution for illegal drug possession as a result of coming into force of disputed MoH of Ukraine Decree. As a result, implementation of respective items under action plan of the National Programme to Fight HIV/AIDS which relate to HIV prevention among drug users is under threat, millions of syringes currently being exchanged by the harm reduction prevention projects will be left on the streets, in public places and so on, this poses a threat of HIV infection for the general population, including children; this will lead to increasing marginalization of drug users and growing vulnerability to HIV infection and other communicable diseases. The Cabinet of Ministers of Ukraine on December 28, 1992 # 731 approved Resolution on State Registration of Normative and Legislative Acts of Ministries and other Agencies of Executive Power. Article 2 of the Resolution sets requirements for normative and legislative acts of the ministries to correspond to the European Convention for the Protection of Human Rights and Fundamental Freedoms, European Court practices and Ukraine s international agreements. Articles 13 and 17 of the Resolution on State Registration foresee as ground for refusing or terminating state registration incompatibility of a normative act with the European Court practices. Similar grounds are defined in the Ministry of Justice Order as of # 32/5 On Protocol on Termination of Decision on State Registration of Normative and Legislative Acts Entered into the State Registry. Examination of disputed MoH of Ukraine Decree # 634 seems to suggest that it does not correspond to the Convention for the Protection of Human Rights and Fundamental Freedoms, as well as European Court practices in relation to Paragraph a, Part 1, Article 5 (right to freedom and security of the person), Article 7 (no punishment without law) and Article 14 (prohibition of discrimination) of the European Convention. Article 5.1 (a) Right to liberty and security of person 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in 3

4 the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court Article 5 is geared to protecting against arbitrary intrusion of States into person s right to liberty. No detention which is arbitrary can be compatible with Paragraph 1, Article 5. The notion of arbitrariness in Paragraph 1, Article 5 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention. The interpretation of the notion of arbitrariness varies, depending on the grounds for restricting the right to freedom as specified in Article 5(1). MoH of Ukraine Decree # 634 was adopted to be used as a tool when charging an individual with criminal and/or administrative offences and executing punishment, including detention and administrative arrest. Application of such punishment corresponds to Paragraph a, Part 1, Article 5 the lawful detention of a person after conviction by a competent court. The notion of arbitrariness in the context of Paragraph a, Part 1, Article 5 is demonstrated in cases when despite complying with the latter of national law, there has been an element of bad faith or deception on the part of the authorities, or when aim of detention contradicts purpose defined in Paragraph a, Part 1, Article 5. To establish aim as foreseen by Paragraph a, Part 1, Article 5, the word conviction has to be understood as signifying both a finding of guilt after it has been established in accordance with the law that there has been an offence, and the imposition of a penalty or other measure involving deprivation of liberty. In case deeds of government agencies in establishing guilt and selecting punishment such as limiting physical freedom were performed in good faith and without deception, selection of punishment such as deprivation of liberty and period of deprivation remain subject of decision of national authorities, and not the European Court as foreseen by Article 5. The Plaintiff believes that MoH of Ukraine Decree # 634 does not insure good faith and lawfulness (freedom from of abuse) in establishing guilt and selection of punishment such as deprivation of liberty for performing acts as foreseen by Article 309 of the Criminal Code of Ukraine. Criminal deeds and punishment and other criminal and judicial effects are defined by the Criminal Code of Ukraine alone (Part 3, Article 3 of the Criminal Code of Ukraine). Amended by the disputed MoH of Ukraine Decree # 634 Order of the Ministry of Health of Ukraine as of # 188 does not define criminal deeds or punishment, however it could be used as basic document by officials in law enforcement agencies and courts to define deeds with aim to filing a criminal or administrative charge. Existing lack of good faith and deception in establishing some amounts or narcotic substances transfers into the actions of officials when determining nature of deeds and making a decision whether to file a criminal charge. Taking this into account, selection punishment in form of detention applied based on amounts set in Decree # 634 will contradict Paragraph a, Part 1, Article 5 of the European Convention. Non-compliance with goals of public health of the people, also testify in favour of lack of good faith and/or deception in establishing amounts in the MoH Decree # 634. Lower amounts of narcotic substances to file criminal charges forces the law enforcement agencies and courts to concentrate upon administrative/criminal prosecution of drug users rather than drug dealers. Crack down on drug users shall create barriers for the users to access medical and social agencies and services which provide HIV/AIDS prevention and care and also hinder operation of HIV prevention programmes tailored for injecting drug users. Drug users when hiding from the police tend to practice unsafe injecting drug use from the point of view of HIV/AIDS infection, overdose risk tends to increase. Growing numbers of incarcerated persons shall lead to more overcrowding in prisons and spread of communicable diseases among prisoners. Budget funds to support law enforcement authorities, courts and the penitentiary system would be better spent within the health care structure. Evidently, that by creating barriers to access medical and social services, 4

5 needlessly encouraging disease rates and unnecessary deaths, disputed MoH Decree # 634 becomes more of an agent of conflict rather than aid to promoting public health goals. In its resolutions the European Court on many occasions stated that interpretation of the Convention has to be performed in accord with norms and principles of international legislation, different from the Convention. Consequently the Decree # 634 needs to be evaluated from the point of view of its correspondence to norms and principles of international legislation relating to incarceration for drug possession without intent to sell in connection with right to health. Implementation of the UN Convention on Narcotic Drugs needs to correspond with the human rights obligations. The International Committee on Economic, Social and Cultural Rights views adoption of laws which hinder human rights to health and needlessly encourage disease rates and lead to unnecessary deaths as an obvious infringement of Article 12 of the International Covenant on Economic, Social and Cultural Rights. Political Declaration and Action Plan on International Cooperation with aim to producing comprehensive and balanced strategy for drug control in the world calls for a balanced approach towards decreasing demand for drugs; when combating drug abuse is viewed as a medical and social problem in conjunction with upholding human rights. The UN Political Declaration on HIV/AIDS calls to «intensifying efforts to enact, strengthen or enforce, as appropriate, legislation.. to ensure the full enjoyment of all human rights and fundamental freedoms by people living with HIV and members of vulnerable groups, in particular to ensure their access to health care, social and health services, prevention, support and treatment, information and legal protection». The Commission and later on the Human Rights Council on many occasions called to States to insure compliance of national legislation to human rights obligations so criminal punishment was not used in bad faith against populations vulnerable to HIV in full accordance with the International Guidelines on HIV/AIDS and Human Rights. The UN Commission on Narcotic Drugs urges UN Member States to alleviate possible barriers to insure universal access to prevention, care and treatment of HIV, so people living with HIV, and all populations vulnerable to HIV, including injecting drug users could have access to relevant services. It also includes recommendations on prevention of other communicable diseases among injecting drug users with TB and hepatitis. Relevant application of international norms and principles of criminal justice and also deprivation of liberty as means to decreasing demand for drugs should not conflict with the exercise of right to health. Disputed Order # 634 does not fulfil such criteria. In interpreting and applying the European Convention it is also important to incorporate results of scientific studies, including review of previous decisions as a result of new scientific developments, including issues relating to application of criminal justice. Necessary application of relevant judicial means should be carried out also in accord with Ukraine s scientific and social development. Disputed MoH Decree, the Plaintiff believes, was not evaluated from the scientific point of view in regard to administering harsh punishments for possession of small amounts of narcotic drugs. Studies demonstrate that a crack down on drug users does not visibly decrease level of drug consumption. Results of such crack down seem even less impressive when compared to expenses incurred by the system of justice and incarceration including negative effects associated with prison overcrowding. Studies 5

6 point to efficiency of alternative punishment as opposed to criminal prosecution and incarceration for petty drug related crimes. Study of legal practices operating in the EU countries carried out by the European Monitoring Centre for Drugs and Drug Addiction, demonstrates that there is a trend of not using incarceration as punishment for possession of drugs in amounts implying personal use. United Nations Office on Drugs and Crime points out to inefficiency of using criminal punishment as a deterrent based on scientific evidence and recommends to avoid using incarceration as punishment for petty drug related crimes. Supporting a system of criminal prosecution for possession of small amounts of narcotic substances contradicts international practice of drugs control and scientific recommendations in such field. The Ministry of Health of Ukraine remains a leading authority within the system of national agencies of executive power which insure implementation of state policy in health care. When drafting Decree # 634 MoH should have examined the aforementioned international best practices and scientific recommendations. Considering that the Decree does not comply with international practices and recommendations, it was not drafted in good faith and/or aims to purposefully mislead human rights activists as well as the public. Considering the aforesaid the disputed Decree # 634 encourages arbitrary detention as punishment and as such contradicts Paragraph a, Part 1, Article 5. Article 7 No unlawful punishment 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. Article 7 should be interpreted and applied considering its purpose, which is to effectively guard against arbitrary court prosecution, sentencing and punishment. Article 7 also prohibits excessive use of criminal legislation to the disadvantage of the accused. When defining criminal deeds and punishment the Criminal Code of Ukraine dos not define as criminal a deed or refraining from a deed, which formally may be classified as criminal, but because of their insignificance do not pose a threat to society, which means they do not cause any harm or could have caused any harm to a person or judicial entity, society and the state. The court administers punishment depending on severity of the committed crime (Article 3, Part 1, Paragraph 65 of the Criminal Code of Ukraine). Such criteria is vital in cases relating to illegal drug circulation, considering that the Criminal Code of Ukraine is based on general principles and norms of international legislation (Article 3 of the Criminal Code of Ukraine). According to Article 3 of the Law of Ukraine 60/95-ВП as of Narcotic Drugs, Psychotropic Substances and Precursors, activities to curb circulation of narcotic drugs, including administration of punishment for breaking the law, should comply with standards set by Ukraine s international agreements. This was specifically acknowledged by the Ukraine s Supreme Court Plenum Decree # 4 as of On Court Proceedings in Cases on Crimes Related to Circulation of Narcotic Drugs, Psychotropic Substances their Analogous Materials or Precursors. When adopting a decision on criminal prosecution law enforcement agencies and bodies of the judicial system should use norms and principles of international legislation and Ukraine s declarations in international agreements, including the UN Convention on Drugs, international agreements on protection of human rights and also take into account their practical application (Article 31 of the Vienna Convention (1969) on the rights of international agreements). Also interpretation of norms of the UN Convention on Drugs relating to 6

7 incarceration for possession of drugs without intent to sell, was reflected in documents published by the UN and International Narcotics Control Board (i.e. official body created by the Convention) as well as legal best practices of many countries which administer punishment for drug related crimes based on the pro rata principle. UN official commentary to the UN Convention (1988) directly advises that when adopting decision on exercising procedure related to Part 2, Article 3 of the UN convention (1988) (possession for personal use without intent to sell) best practices existing in other countries should be taken into account. Study of the European Monitoring Centre for Drugs and Drug Addiction, demonstrates that in majority of EU countries the threshold amount of drugs, sufficient to administer punishment for possession of drugs without intent to sell, as stated in normative acts and protocols, is around 1 gram for heroin. In Ukraine threshold amount of drugs sufficient to administer punishment for possession of drugs without intent to sell: heroin or acetylated opiate gram which is 200 times lower. Moreover, studies demonstrate that cases on drug possession without intent to sell of small amounts (on average around 1 gram of heroin) seldom result in incarceration. According to the International Narcotics Control Board extremely harsh punishment, especially incarceration in relation to injecting drug users contradicts aims of the UN Convention on Drugs. When reviewing legislation reforms in Portugal where criminal prosecution is initiated upon possession of at least 10 daily doses of heroin (1 gram), the International Narcotics Control Board pointed out that lifting criminal punishment for possession of small amounts of narcotic substances corresponds with international agreements on drug control. The EU Charter of Fundamental Rights under section on principles of legality and proportionality of criminal offences and penalties states that the severity of penalties must not be disproportionate to the criminal offence (Part 3, Article 49). Upon examining international human rights standards UNODC also emphasize principle of proportionality of criminal offences and severity of penalties and define such punishment as incarceration as an extreme measure of last resort. MoH Decree # 634 encourages administration of harsh penalties for petty drug related crimes without intent to sell. UNODC believes that such practices promote corruption among law enforcement authorities. Considering all of the above it is evident that interpretation and application of the UN Convention on Drugs in regard to administering punishment for possession of small quantities of drugs without intent to sell encourages to avoid initiation of criminal prosecution, and especially detention for such offences. Also threshold amounts for aim of prosecution are around 1 gram for heroin. Based on requirements of fundamental norms and standards of international legislation and norms set by international agreements, application of Article 309 in relation to Part 2, Article 11 and Paragraph 3, Part 1, Article 65 of the Criminal Code of Ukraine should take this into account. An individual should be held criminally responsible for committing a deed which poses a threat to society and which may be classified as criminal as foreseen by the Criminal Code of Ukraine (Article 2 of the Criminal Code of Ukraine). To classify essential elements of crime the evidential base has to include circumstances which affect the severity of the crime, and circumstances which illustrate the character of the accused (Paragraph 3, Article 64 of the Criminal and Processual Code of Ukraine). When classifying deeds under Part 1, Article 309 of the Criminal Code of Ukraine it is important to consider insignificant amounts. Following the procedure defined for classifying small amounts, a ten fold increase in the daily dose means that the daily dose itself should take into account the altering level of drug tolerance and the drug s purity. UNODC data for 2007 suggests that the purity of wholesale heroin in Ukraine varies from 7

8 20 to 75 percent. Purity of retail drugs is usually significantly lower. Fulfilling requirements of Part 2, Article 11 and Paragraph 3, Part 1, Article 65 of the Criminal Code of Ukraine, and taking into account Paragraph 3 Article 64 of the Criminal Processual Code of Ukraine, law enforcement authorities should be able to take into account level of person s drug tolerance, who was accused of drug possession without intent to sell, take into account differences in drug purity in a particular locality and other factors which may help objectively establish whether the amount of drugs was insignificant and as a result establish the severity of crime and possible punishment. Threshold amount defined by Decree # 634 do not allow that. When defining minimum amounts for initiating criminal prosecution for possession of drugs without intent to sell, MoH Decree # 634 prevents the law enforcement authorities from applying norms as defined in Part 2, Article 11, Paragraph 3, Part 1, Article 65 of the Criminal Code of Ukraine, Paragraph 3 Article 64 of the Criminal Processual Code of Ukraine in relation to cases on drug possession without intent to sell under norms and principles of international legal practice and Ukraine s international agreements, and taking into account circumstances that need to be proved in the case. Application of such norms is an essential guarantee of proportionality of criminal penalties in regard to severity of the crime and means to prevent arbitrary detention of persons who commit petty crimes. As such MoH Decree # 634 encourages excessive use of criminal law to the disadvantage of the accused and arbitrary use of harsh penalties which conflicts with the European Court practices in regard to application of Article 7 of the European Convention. Article 14 Prohibition of Discrimination The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Discrimination different treatment of persons in analogous situations with no objective or reasonable justification. Based on the European court practices Article 14 complements other material statements of the Convention and its Protocols. The Article does not function independently, as it applies exclusively to exercising rights and freedoms proclaimed by the European Convention. Although application of Article 14 does not presume breach of other articles of the European Convention, Article 14 cannot be used until it is finally resolved that the issue in question does not fall under any other material statement of the European Convention. MoH Decree # 634 falls under Paragraph a, Part 1, Article 5 and Article 7 of the European Convention. On the one hand Decree # 634 encourages exercise of arbitrary interpretation of nature of the criminal deed and application of penalties towards a vast group of drug users, which includes over 58 thousand persons registered by the Ministry of Health of Ukraine as patients with opiate drug addiction. On the other hand in regard to the same group of people MoH Decree # 634 hinders application of standards relating to insignificance of crime and proportionality of penalties. The Criminal Code of Ukraine and Criminal and Processual Code of Ukraine do not contain any statements, which do not support application of such norms in relation to any group of persons, when rating a deed as criminal and deciding on a punishment or determining the deed s classification and application of punishment. Constitution of Ukraine guarantees equal rights for everyone (Article 21). The Court considers that the right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification. However, right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different. 8

9 In regard to Paragraph a, Part 1, Article 5 of the European Convention the MoH Decree # 634 encourages application of such harsh punishment as deprivation of liberty, based on arbitrarily defined insignificantly small amounts of narcotic drugs and psychotropic substances. Amounts for acetylated opiate are small enough to initiate criminal prosecution even for possession of a used syringe containing residue narcotic substance. There are examples of relevant court practice. The Supreme Court of Ukraine recommended to initiate criminal prosecution under Part 1, Article 309 of the Criminal Code of Ukraine when such norms are breached even with insignificantly small amounts. In other words criteria selected by the law makers to rate severity of punishment depending on amounts of narcotic drug or psychotropic substance is negated by a legislative act: MoH Decree # 634 followed by the MoH of Ukraine Decree # 188. The Criminal Code of Ukraine does not foresee provision of harsher punishments depending on severity of committed offence in relation to any other deed. MoH Decree # 634, which was drafted in bad faith and/or with deception, encourages arbitrary detention of large numbers of people, because Part 1, Article 309 of the Criminal Code of Ukraine and Article 44 of the Code of Ukraine on Administrative Offences by and large relate to drug users, including patients with drug dependency. Question whether such narcotic drugs as acetylated opiate are prohibited is of no importance in such context. Group of people who violate prohibition on circulation of narcotic drugs may be compared to a group of other offenders, to which application of such punishment as deprivation of liberty is determined, as set by the law makers, by the severity of an offence, and this is taken into account by the judicial practice. Reasons for application of different criteria to such group of people could be defined as discrimination. Based on that, we rightfully raise the question of discrimination in relation to Paragraph a, Part 1, Article 5. According to Article 14 of the European Convention the European Court recognizes the right of the state to exercise different treatment towards different types of offences as defined at will by the law makers depending on the crime s severity. When reviewing MoH Decree # 634 the approach, selected by the law makers for applying different punishment to offences depending on the severity of the offence, which is under Article 44 of the Code of Ukraine on Administrative Offences and Part 1, Article 309 of the Criminal Code of Ukraine is determined by small and large amounts of narcotic drugs and psychotropic substances, is not under question. Under Paragraph a, Part 1, Article 5 and Article 14 of the European Convention one should analyse actions which arbitrarily undermine legislative acts of the system of punishment application depending of severity of the offence committed as defined by the Code of Ukraine on Administrative Offences and Criminal Code of Ukraine. MoH Decree # 634 encourages arbitrary and unreasonable application of such harsh punishments as deprivation of liberty for injecting drug users and patients with drug dependency, despite intent of the law makers. Consequently, different treatment of such group of people as defined by the Decree # 634 does not relate to hypothetical different treatment resulting from severity of committed offence. Application of Article 14 is not limited by cases of discrimination based on personal characteristics (gender, race, skin colour, religion, social origin and so on). The European Court interprets on any ground also as characteristics not directly related to the person. Using European Court practices as an example question on established or different treatment on ground of personal or known characteristics of a person are subject of review based on circumstances of each case and understanding that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. There are many reasons why people consume controlled substances. This issue just as the issue of defining prohibition and responsibility for illegal circulation of drugs without intent to sell should remain in the jurisdiction of the national authorities and is not examined for correspondence to the European Convention. However, characteristic drug use may be evidently defined as other ground for the purposes of applying Article 14 of the European Convention. Consequently, it is reasonable to conclude that Decree # 634 may be reviewed under Paragraph a, Part 1, Article 5 of the European Convention, the Decree encourages different treatment of a large group of people characterized by drug use as compared to other law offenders for whom severity of punishment just as in case of administering punishment under Article 9

10 44 of the Code of Ukraine on Administrative Offences and Article 309 of the Criminal Code of Ukraine depends on the severity of the offence committed. Different treatment is defined as discrimination in case it does not have objective or reasonable justification. Which means, that such treatment does not pursue aims as defined by legislation; or there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised. MoH of Ukraine is the agency which issued Decree # 634. The Ministry of Health of Ukraine organizes issue of Decrees entirely within the Ministry s jurisdiction which aims to insure implementation of state policy in health care. Titles of Chapter 5 of the Code of Ukraine on Administrative Offences, Chapter 13 of the Criminal Code of Ukraine suggest that offences under Article 44 the Code of Ukraine on Administrative Offences and other crimes under Article 309 of the Criminal Code of Ukraine relate to health. Consequently, it is reasonable to assume that the MoH Decree # 634 is geared towards public health. To resolve the issue of correspondence of MoH Decree # 634 to principles set by Article 14 of the European Convention, it is essential to determine in what way different treatment of drug users as defined by the Decree serves aims of public health and how the tools provided by the MoH Decree # 634 to agencies which will be using the Decree, and consequences of Decree application relate to achieving health goals. Data provided by the State Court Administration of Ukraine suggest that only in 2010 the number of persons sentenced by courts of general jurisdiction for committing crimes under Part 1, Article 309 of the Criminal Code of Ukraine was 13308, which is almost 8% out of the overall number of prison population. Considering the latest developments caused by coming into force of the disputed Decree, the number of people incarcerated for committing offences under Part 1, Article 309 of the Criminal Code of Ukraine in 2011 will significantly increase. Significant decrease in threshold amounts of drugs used to initiate criminal prosecution leads to an increase in number of inmates in Ukraine, creates barriers for drug users to apply for medical and social services and medical assistance, promotes increasing overdose rates, and increasing use of harmful drug consumption practices in relation to HIV infection, hinders operations of HIV prevention programmes among drug users, increases rates of HIV infection, Hep C, AIDS and TB morbidity, promotes ineffective use of government funds and an increase in corruption. Moreover, scientific evidence demonstrates that a policy of repression against injecting drug users does not actually affect the level of drug consumption. Consequently measures of the MoH Decree # 634 are not only disproportionate with health goals, such measures directly contradict them. As a result MoH Decree # 634 violates prohibition of discrimination in relation to right to freedom as defined by Article 14 of the European Convention. In relation to Article 7 of the European Convention MoH Decree # 634 creates barriers to application of norms of the Criminal Code of Ukraine relating to insignificance of the offence and proportionality of punishment, as a result it promotes undue arbitrary interpretation of such norms to disadvantage of the accused and unlawful punishment. All reasons stated above aimed to analyse MoH Decree # 634 using standards defined by Article 14 of the European Convention in connection to Paragraph a, Part 1, Article 5 of the European Convention may be used as ground to analyse Decree # 634 for correspondence to Article 14 of the European Convention in relation to Article 7 of the European Convention. By preventing law enforcement authorities from taking into account drug tolerance, MoH Decree # 634 targets users with highest tolerance. As stated above, ratio of the daily dose with minimum and maximum dose can be 1:100. As rule users who have developed a specific level of dependency have higher tolerance. For such users the daily dose, let alone 10 daily doses, considering poor purity of street drugs, will be thousands times over the amounts defined by the MoH Decree # 634. Application of Part 2, Article 11, Paragraph 3, Part 1, Article 65 of the Criminal Code of Ukraine, Paragraph 3, Article 64 of the Criminal 10

11 Processual Code of Ukraine when classifying deeds under Article 309 of the Criminal Code of Ukraine should take into account drug tolerance, purity of drugs and, in addition, the fact of drug dependency. It is obvious that regular drug users are in different situation as compared to other drug users. Prohibition of discrimination is breached not only in cases when States treat differently persons whose situations are analogous, but also when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different. Drug dependency is a disease. Discrimination on the ground of health is directly prohibited by international legislation. As a result MoH Decree # 634 contradicts Article 14 of the European Convention in relation to Article 7 of the European Convention. When reviewing responsibilities of the Ministry of Justice of Ukraine and Ministry of Health of Ukraine in regard to Decree # 634 and in relation to other similar documents, the European Court has a principal position that selection of means to be employed to insure rule of law and guarantee constitutional rights falls under jurisdiction of national authorities. However, implementation of such means has to correspond with the Member State s obligations under the European Convention in case Convention agencies to present their review. Otherwise this would undermine the European Court s obligation to insure that Member States uphold their responsibilities under the European Convention. The European Court can always establish direct inconsistency between the national legislation and the European Convention. Contrary to current legislation of Ukraine disputed MoH Decree # 634 was not published according to the standard procedure. The draft failed to undergo public discussion, it was not scientifically evaluated which is aimed to support purpose and efficiency of proposed amendments. Please, note that the Plaintiff in November 2010 February 2011 on a number occasions officially appealed to MoH of Ukraine to upgrade and improve the disputed Decree, however yet to no avail. Further more, this issue was in part reviewed at the meeting of the National Coordination Council on Combating Tuberculosis and HIV-infection/AIDS under the Cabinet of Ministers of Ukraine on November 11, 2010; Article 12 of the Minutes Resolution recommended MoH of Ukraine to introduce amendment to the disputed Decree, namely: excluding requirements for small amounts of narcotic drugs, psychotropic substances and precursors in illicit circulation to insure effective implementation of harm reduction programmes for injecting drug users, including operation of syringe exchange programmes. Until now the National Council s decision has not been fulfilled. Disputed MoH Decree significantly limits degree and quality of rights and freedoms of both drug dependent patients and the general public to be free from HIV infection and HIV/AIDS morbidity and incidence of other communicable diseases, openly breaches Part 1, 2, Article 3, Part 1, 2, Article 24, Article 49, Part 1, Article 50 of the Constitution of Ukraine, Law of Ukraine On Protecting General Public from Infectious Diseases, Law of Ukraine On Counteracting Spread of Diseases Caused by the Human Immune Deficiency Virus (HIV) and Legal and Social Protection of People Living with HIV, Law of Ukraine On Insuring Sanitary and Epidemiological Wellbeing of the Public. Considering all of the above, under Articles 2, 4, 6, 9, 18, 19, 56, 59, 99, 104, 105, 106, 171 of the Administrative Court Proceedings Code of Ukraine REQUEST THE COURT: 11

12 To declare invalid (unlawful) the MoH of Ukraine Decree # 634 as of On Approving Tables of Small, Large and Significantly Large Amounts of Narcotic Drugs, Psychotropic Substances and Precursors in Illicit Circulation namely in defining low amounts of narcotic substance named opiate acetylated and large amounts of precursors: acetic anhydride, ephedrine and pseudoephedrine. List of attached documents (attachments): 40 pages: 1. MoH of Ukraine Decree # 634 as of On Approving Tables of Small, Large and Significantly Large Amounts of Narcotic Drugs, Psychotropic Substances and Precursors in Illicit Circulation on 12 pages. 2. Power of Attorney for the Plaintiff s Representative 1 page 3. Receipt on paying court fees for filing an administrative suit on 1 Page 4. Copy of the Statement of Claim and attached documents on 26 pages. April 26, 2011 Plaintiff s Representative (based on the Power of Attorney) (signed) Skala P.V. 12