A man with a child in his arms is a symbol of care and responsibility, but even in such a situation, life can throw up unexpected tests. What to do if you were stopped by his representatives right during a walk or returning home from kindergarten? The questions that are asked and the documents that are asked to be shown can cause anxiety and many emotions in a child. This is not just a legal case, but a matter of protecting one’s rights, responsibility to one’s family and compliance with the law. The TCC has its powers, but can they act without regard to your rights as a parent?
Lawyers of the “Repeshko and Partners” Bar Association commented on the legislative norms and told how to legally competently respond to a meeting with representatives of the TCC in the presence of your child in order to maintain peace and your rights.
TCC and SP representatives use different methods to implement the mobilization legislation. In turn, ordinary citizens do not remain in debt and invent various means of avoiding a meeting with representatives of these bodies, or do everything to ensure that such a meeting takes place with minimal contact. No one is surprised by the available masks for elderly men, which cost from UAH 1,000. The bravest can disguise themselves as women and hope that representatives of the TCC and SP or the police will not demand documents for verification when passing by. Men have many questions in connection with the current situation, but unfortunately there are not always answers to them, or answers that would satisfy the concerned population.
Everyone already knows that conscripted men can be picked up in the middle of the street. Moreover, almost none of them return home even to pick up personal belongings or to settle some current affairs. A couple of months ago, on Facebook, on her own page, one of the lawyers raised the topic of animals that remained locked up at home due to the forced mobilization of the owner. From this point of view, if a man is detained by representatives of the TCC and SP in the middle of the street at a time when there is a pet with him, which, of course, no one takes with the man and no one gives time to solve the issue of transferring the pet somewhere. From a legal point of view, it is not even possible to prosecute the employees of TCC and JV for animal cruelty in this case.
But finding a conscripted man with a pet on the street is not as common as with a minor child. Some men even frankly believe that if he goes for a walk with a minor child, then representatives of the TCC and SP or the police have no right to detain him. Moreover, the younger the child, the greater the father’s confidence in his inviolability. Unfortunately, we have to dispel this myth.
Administrative detention
In connection with the latest legislative changes, Resolution No. 560 of the Cabinet of Ministers of Ukraine dated 16.05.2024 “On approval of the procedure for approving the draft of citizens for military service during mobilization, for a special period” police officers are given the right to carry out administrative detention and delivery of conscripts to the nearest TCC and SP in the following cases:
- when a person refused to receive a summons or violated the rules of military registration, and according to this resolution, it is enough to detain only not to receive a summons even if the military registration data is specified;
- when the person refused to proceed to the TCC and SP;
- when the Unified State Register of conscripts, conscripts and reservists has information that a person has been declared wanted and that information has been submitted to the National Police;
- when the registers and data bases (banks) included in the unified information system of the Ministry of Internal Affairs contain information about the search for a person;
- if the person does not have a military registration document.
Moreover, according to the Code of Administrative Offenses, administrative detention of a person who has committed an administrative offense may last no more than three hours.
The employees of this body do not have the authority to detain a person and deliver him to the TCC and JV. It should be noted that delivery to TCC and JV is something that should happen voluntarily, and therefore a person has the right to refuse to go anywhere, no matter who it is offered – by representatives of TCC and JV or police officers. This is in theory… Unlike delivery, the detention of a person must be carried out exclusively by police officers on the grounds available for this and cannot exceed three hours from the moment of detention.
According to Article 260 of the Criminal Procedure Code, administrative detention is carried out:
- in order to stop administrative offenses when other measures of influence have been exhausted
- to establish identity
- for drawing up a report on an administrative offense if it is impossible to draw it up at the place where the offense was committed, if drawing up a report is mandatory, ensuring timely and correct consideration of cases and implementation of resolutions in cases on administrative offences.
You should know that in case of administrative detention:
- An arrest report must be drawn up, which indicates the date and place of its preparation, time (remember that the arrest cannot exceed three hours), the position and personal identification number of the person who drew up the document, information about the detainee’s identity, and the reasons for the arrest. The protocol is signed by both the person who drew it up and the detainee. In the event that the detainee refuses to sign the detention protocol, a corresponding entry is made in it.
- Relatives of the detainee must be immediately notified of the whereabouts of the detained person. At the detainee’s request, the company or organization where the detainee works may be notified of the detention.
- A detained person has the right to a lawyer, and therefore police officers must inform the centers for providing free secondary legal assistance in each case of administrative detention. Exceptions are situations when a person wishes to defend himself personally or has a defender with whom an agreement has been concluded and whom he has invited to perform his defense.
Another nuance – the term of administrative detention is counted from the moment when the person is actually deprived of the opportunity to move freely, and not from the time specified in the protocol. At the same time, the detained person has the following rights: to get acquainted with the protocol of detention, to give an explanation, to provide his evidence, to make a request, to use the services of a lawyer, to challenge the detention.
The detainee must be delivered to the TCC and SP closest to the place of detention (regardless of where the person is or is not registered). But this is a more idealistic version of the development of events.
If there is a minor child with the husband, then the police representatives must call a representative of the juvenile police, to whom the child should be handed over. A juvenile police officer is an official in the National Police, who is directly involved in the prevention of offenses among children. That is, if other police services need communication with children, they turn to a juvenile police officer, because he has such experience and specializes in this.
What is the peculiarity of the activity of a juvenile police officer?
- knowledge and application of legislation that guarantees compliance with the rights, freedoms and interests of the child in accordance with international standards;
- prevention of criminal and administrative offenses committed by and against children;
- participation in establishing the child’s whereabouts in the event of his or her disappearance;
- visiting children who find themselves in difficult life circumstances at their place of residence together with the children’s affairs service to find out the living conditions;
- initiation before children’s services, local health departments executive power bodies and local self-government bodies on the issue of sending the child to the appropriate institution for providing the necessary medical and psychological assistance;
- detection of domestic violence and timely response to them;
- inadmissibility of child abuse;
- ensuring “Child-friendly Justice”;
- other functions.
It should be noted that due to the complexity of the situation, in which there is a child together with the conscript, we hope that the detention will be carried out properly and in compliance with all current legislation. Fortunately, at this time, the general public is not aware of cases when the father was taken away, and the young child was left alone in the middle of the street. Because if the policemen simply leave the child alone on the street, this is at least dereliction of duty, negligence, official crime, which leads to criminal liability.
At the same time, the presence of a child with an offender or a person who committed a crime is not a reason not to detain such a person or to mitigate his situation. In this regard, even appropriate changes were made to the criminal procedural legislation, which apply not only to men, but also to women-mothers. The relevant Law of Ukraine “On Amendments to the Criminal Procedure Code of Ukraine on the Protection of the Rights and Legal Interests of a Child in the Event of Detention or Detention of His Parents or Other Legal Representatives” was adopted on January 12, 2023 and entered into force on February 5.
According to the provisions of this law, an authorized official who has detained a person on the basis of a decision of an investigating judge, a court on permission to detain, is obliged to immediately notify the police and the guardianship and guardianship authority at the place of residence of the presence of a child in the custody of the person who remains without parental care of such a child about the fact of leaving the child without parental care. At the same time, information about the date and exact time (hour and minute) of the notification of the relevant authorities is noted in the detention protocol.
Also, if during the consideration of the petition for the application of a preventive measure in the form of detention, the court determines that in connection with the application of the specified preventive measure, the child who is in the custody of the suspect, the accused, will remain without parental care, the investigating judge, the court obliges the prosecutor to notify the police and the guardianship and guardianship authority at the place of residence of such a child about the fact of leaving the child without parental care for taking urgent measures regarding the child’s temporary accommodation. Information about this is indicated in the decision on choosing a preventive measure in the form of detention. The body of custody and guardianship immediately after the temporary placement of a child left without parental care, informs the investigator, prosecutor, investigating judge, court about the place of residence (stay) of the child. After receiving such information, the investigator, prosecutor immediately informs the suspect, the accused about the place of residence (stay) of the child.
But no matter what levers and guarantees of children’s rights the state applies, the main task of the parents is not to expose the child to danger. Therefore, it is better not to provoke the situation than to deal with its consequences.
