Posted by Constantine M on August 29, 2004 at 07:17:00:
by Ivan I. Movlyak
One perfect June day the Ukrainian (traffic police) detained a Polish citizen because of illegal stay on the territory of Ukraine. This was their view as they insisted that the Polish citizen had stayed in Ukraine over the period allowed by Ukrainian legislation. The problem was in the incorrect determination of the terms of staying in Ukraine and application of the rules of Ukrainian legislation by the Ukrainian authorities. Let’s look at the details of the incident and the Ukrainian legislation regulating the procedure for foreigners entering (staying) in Ukraine. The rules regarding entry into (exit from) Ukraine by foreigners are stated in the Legal Status of Foreigners and Stateless Persons Act of Ukraine No.3929-XII of 4 February 1994 and subordinate legislation adopted in elaboration of this Act.
In accordance with the Rules on foreigners and stateless persons entering Ukraine, their exit from Ukraine and the transit journey through its territory, the registration of foreigners entering Ukraine and their documents is carried out by the border services of Ukraine at the admission point through the Ukrainian state border. Such registration is carried out:
— for foreigners from states with a visa entry procedure — for the duration of the visa’s validity but not more than for six months;
— for foreigners from states with visa-free entry procedure — for a period of 90 days if otherwise not envisaged by international treaties.
The confirmation of registration is the stamp “Entry” of the Ukrainian border services, which should be made directly in a passport. According to item 1 of the Decree of the President of Ukraine No.435/2001 of 15 June 2001 On Additional Arrangements of Implementation of the Human Right for Freedom of Movement and Free Choice of Place of Inhabitation an additional registration of foreigners in the Ukrainian state bodies of internal affairs is not needed in this case.
And there is an Agreement On Conditions of Voyages of Citizens between Ukraine and the Republic of Poland in place, signed in Kiev 30 July 20032 that establishes a visa-free entry regime and provides a slightly different procedure for the stay in Ukraine for Poland citizens than the abovementioned legal acts. In accordance with the Agreement “the citizens of the Republic of Poland, irrespective of their habitual residence and the purpose of voyage, can stay on the territory of Ukraine without visas in the presence of valid travel documents indicated in Annex to this Agreement, enter, stay on the territory of Ukraine for up to 90 days within six months from the date of border crossing with the possibility to stay up to 90 days on the territory of Ukraine within the next six months”. As per the Annex to the Agreement for Polish citizens, the travel document in particular is passport. The Polish citizen we mentioned entered Ukraine on the first occasion in November 2003 on the basis of the visa issued in April 2003, whose term of validity was one year (until April 2004). The second entry took place in April 2004 but by this time it took place under the rules of the Agreement on the basis of the passport without any visa. In June 2004 he was detained by the Ukrainian state authorities as staying in Ukraine for over 90 days within six months since crossing the Ukrainian border.
The Agreement was signed on 30 July 2003, but was approved by the Cabinet of Ministers on 2 October 2003. So, the visa entry procedure for the Polish acted until the date of approval of this Agreement. So, the fact that the Agreement came into force did not cancel the validity of visas issued previously. The Agreement says “the citizens of the Republic of Poland … can stay on the territory of Ukraine without visas”. It does not forbid entry into Ukraine on the grounds of a visa, which had been issued previously. It is reasonable that there should be one exception in counting out the terms of stay in Ukraine for those Polish citizens who entered Ukraine after 2 October 2003 on the grounds of the visa issued before this date. So, if the Polish citizen entered Ukraine after 2 October 2003 on the basis of the visa for the purposes of applying the Agreement’s provisions (for counting out the sixth months period) the date of the first entry into Ukrainian territory should be the date of the first visa-free entry into Ukraine, and not the date of entry under a valid visa. Such a date can be determined from the stamp “Entry” of the Ukrainian border services in the passport of such a citizen. Therefore, we have two absolutely different grounds for entry into Ukraine: the first one is a valid visa, the second one is a valid passport. In the first case for counting out the period of stay in Ukraine the rules of the abovementioned legislative acts of Ukraine should be applied and in the second one — the corresponding rules of the Agreement between Ukraine and the Republic of Poland. With regard to such arguments, the Ukrainian state authorities had no choice but to continue to hold the Polish citizen in custody. Thus, it should be mentioned that without competent lawyers, the citizen of Poland could have been unlawfully fined and even deported. ¢
1 Adopted by the Resolution of Cabinet of Ministers of Ukraine No.1074 of 29 December 1995 with subsequent amendments
2 Approved by the Resolution of the Cabinet of Ministers of Ukraine No.1572 of 2 October 2003.
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