As of March 30, 2021, according to the statistical data of the State Judicial Administration of Ukraine (https://court.gov.ua/press/news/1097031/), Article 44-3 of the Code of Administrative Offenses, which provides for liability for violation of the rules on quarantine of people, sanitary -hygienic, sanitary and anti-epidemic rules and norms provided by the Law of Ukraine “On protection of the population from infectious diseases”, other legislative acts, as well as decisions of local governments on combating infectious diseases, the court received 95,440 protocols. and administrative penalties were imposed on 4,309 protocols (approximately 4.5%).
Article 44-3 of the Code of Administrative Offenses, so to speak, is new compared to others, as we see during the year many changes were made,
On December 21, 2020, Article 44-3 of the Code of Administrative Offenses was supplemented by Part 2, which reduced the liability for staying in public buildings, structures, public transport during quarantine. without wearing personal protective equipment, including respirators or protective masks that cover the nose and mouth, including self-made.
Interestingly, a third of the rulings are exemptions, more than 16 000 rulings are the termination of proceedings for lack of corpus delicti, and another 20 000. cases were returned to the police, and administrative penalties were imposed under 4,309 protocols (approximately 4.5%).
We believe that it is advisable to consider the practice after the changes in December 2020, as the article was supplemented by mitigating circumstances, which is an appropriate contribution.
Because in case № 161/16766/20 the Volyn Court of Appeal passed a ruling, where the court noted that laws, in administrative proceedings, have retroactive force. This applied to laws that mitigate and / or abolish liability for administrative offenses. That is, the court proceeded from the understanding of the law that all offenses that were already committed before the amendment of the law, namely Article 44-3 of the Code of Administrative Offenses, have retroactive force.
Zaporizhzhya took a similar position. the Court of Appeal, which in the decision of 04.12.2020 in the case № 334/5584/20, as well as in the case № 310/7112/20, although considered the guilt of the person prosecuted, proved, but taking into account the changes that took place in Art. 443 of the Code of Administrative Offenses, decided not to hand over to the police, in turn, to impose a minimum penalty in the form of a fine of 10 non-taxable minimum incomes, which is 170 UAH.
What were the grounds for cancellation? What was the reason?
Analyzing the practice, the grounds for revoking the decisions on administrative offenses were:
* Lack of evidence of an offense.
The protocol on an administrative offense does not entail its recognition as a full-fledged evidence of a person’s violation of the right to quarantine restrictions.
(decision of the Odessa Court of Appeal of 04.12.2020 № 522/16026/20,
decision of the Odessa Court of Appeal of 01.12.2020 № 509/5388/20,
decision of the Kropyvnytskyi Court of Appeal of 30.11.2020 № 405/4290/20);
* Insignificance of the offense under Art. 22 of the Code of Administrative Offenses
resolution of the Kyiv Court of Appeal of 03.12.2020 № 752/18034/20,
resolution of the Donetsk Court of Appeal of 03.12.2020 № 227/3566/20, decision of the Kyiv Court of Appeal of 01.12.2020 № 759/16670/20,
decision of the Kharkiv Court of Appeal of 24.11.2020 № 953/8049/20,
decision of the Kropyvnytskyi Court of Appeal of 24.11.2020 № 398/3769/20);
* Non-compliance of the protocol on administrative offense with the requirements of Art. 256 of the Code of Administrative Offenses.
The protocol did not specify the normative act which provides responsibility for this offense, and therefore in actions of the offender there are no signs of the administrative offense provided by Art. 443 of the Code of Administrative Offenses (decision of the Luhansk Court of Appeal of 27.11.2020 № 428/8560/20);
* Absence of an event and composition of an administrative offense.
(decision of the Khmelnytsky Court of Appeal of 27.11.2020 № 680/775/20,
decision of the Chernivtsi Court of Appeal of 25.11.2020 № 726/1253/20,
decision of the Kharkiv Court of Appeal of 25.11.2020 № 615/704/20).
Summing up, we can say that most of the offenders were released due to the insignificance of the offenses and due to the lack of evidence of the offense.