For almost 2 months now, law enforcement officers have been drawing up administrative reports for violating the rules on human quarantine (Article 44-3 of the Code of Administrative Offenses).
According to the Minister of Internal Affairs of Ukraine A. Avakov (https://nv.ua/biz/markets/epicentr-i-novaya-liniya-budut-nakazany-za-narusheniya-karantinnogo-rezhima-avakov-novosti-ukraina-50085986. html), for the period 01.-04.05.2020 94 reports on violations in supermarkets, 29 – on the network “Epicenter”, 140 – on violations in the activities of catering facilities.
Of course, the commission of any administrative offense results in liability.
Let’s offer to understand.
First of all, let’s define structure of an administrative offense which responsibility for commission is provided by Art. 44-3 КUpАP.
Thus, violation of the rules on quarantine of people, sanitary and hygienic, sanitary and anti-epidemic rules and regulations provided by the Law of Ukraine “On protection of the population from infectious diseases”, other legislation, as well as decisions of local governments to combat infectious diseases, a fine on citizens – from one to two thousand non-taxable minimum incomes of citizens and officials – from two to ten thousand non-taxable minimum incomes of citizens.
That is, the reason for imposing a fine is a deliberate violation of “quarantine restrictions” either by a citizen or an official, for example: the work of business entities, which involves the reception of visitors, including catering establishments (restaurants, cafes, etc.), shopping and entertainment centers, other entertainment establishments, fitness centers, cultural establishments, trade and consumer services, except for retail sale of food, fuel, hygiene products, medicines and medical devices, communications, banking and insurance activities, as well as trade activities and activities for the provision of catering services with the use of targeted delivery of orders, provided that the relevant personnel are provided with personal protective equipment.
Please note that protocol of an administrative offense is not a normative legal act or a legal act of individual action, and therefore cannot be the subject of appeal in administrative proceedings and cannot be revoked.
At the same time, the protocol on an administrative offense is not in itself an indisputable basis for the application of liability, as the protocol only records the fact of detection of the offense by law enforcement officers.
The decision to find a person guilty of an offense and impose a fine (for protocols under Article 44-3 of the Code of Administrative Offenses) is made exclusively by the court.
However, the case law – and this is about 1.5 thousand rulings, shows that in most cases, the courts return the protocols on administrative offenses drawn up under Art. 44-3 of the Code of Administrative Offenses, for revision or close the proceedings due to lack of composition or event of the offense.
Courts in almost every Resolution draw attention to the fact that the protocol on an administrative offense must meet the requirements of Art. 256 of the Code of Administrative Offenses as a ground for bringing a person to justice and as one of the means of proof (Article 251 of the Code of Administrative Offenses).
The requirements of Art. 256 of the Code of Administrative Offenses stipulates that the protocol on an administrative offense shall indicate: the date and place of its compilation, position, surname, name, patronymic of the person who drew up the protocol; information about the person who is brought to administrative responsibility (in case of its detection); place, time of commission and essence of the administrative offense; normative act, which provides for liability for this offense; surnames, addresses of witnesses and victims, surname of the whistleblower (with his written consent), if any; explanation of the person who is brought to administrative responsibility; other information necessary to resolve the case. If the offense caused material damage, this is also noted in the minutes.
The protocol is signed by the person who drew it up and the person who is brought to administrative responsibility; in the presence of witnesses and victims, the protocol may also be signed by these persons.
In case of refusal of the person who is brought to administrative responsibility to sign the protocol, a record is made in it. The person who is brought to administrative responsibility has the right to submit explanations and remarks on the content of the protocol, which are attached to the protocol, as well as to state the reasons for his refusal to sign it.
When drawing up the protocol, the person who is brought to administrative responsibility shall be explained his / her rights and obligations provided for in Article 268 of this Code, which shall be noted in the protocol.
During drawing up of the report according to Art. 44-3 of the Code of Administrative Offenses, we advise you to remain calm and not to argue with law enforcement officers. Pay attention and record the process and result of drawing up the protocol, because the more formal shortcomings the protocol on an administrative offense contains, the higher becomes the probability of returning such a protocol by the court for revision.
Most often during the consideration of cases of administrative offenses under Art. 44-3 of the Code of Administrative Offenses, the courts fix certain doubts as to the existence of the fact of proving the composition of an administrative offense and the guilt of the person who is being held administratively liable. Namely:
Therefore, in the case of drawing up a protocol under Art. 44-3 of the Code of Administrative Offenses, get acquainted with it, indicate that you do not agree with the protocol, get your copy of the protocol, identify any deficiencies in the protocol and wait for trial.
For your peace of mind and confidence in a fair and lawful trial of an administrative offense, we advise you to seek legal assistance.
The professional team of lawyers of DEGA PARTNERS JSC will provide a full range of services for consulting, representation and protection of your interests in court, as well as, if necessary, appeal against the illegal decision of the court of first instance to bring to administrative responsibility under Art. 44-3 KUpАP.