Lawyers initiate legislative and regulatory changes for a fair judicial review of the administrative panel for violation of quarantine conditions
The Kharkov district court fined a local resident of 17,000 hryvnia for staying in the park without a mask. The relevant decision was published in the unified register of judicial decisions.
Since April 6, when heightened quarantine restrictions came into force in Ukraine and law enforcement officials have been tasked with tightening control over their implementation, this is only the first case in the Kharkiv region when the judges decided to punish an offender. And then in this decree, obviously, the aggravation contributed to the fact that the man was drunk. At the same time, the regional police have already compiled nearly 600 administrative protocols under the recently added article 44-3 of the Ukrainian Code on administrative offenses (violation of the rules on quarantine of persons). Many of them have already been reviewed by the courts – with roughly the same result: documents or returned to the police for review (for example, for errors made during the execution of protocols, or the procedure a been closed because of the absence of a corpus delicti or because of its low importance.
Why less than 10% of administration protocols turn into fines
The situation is more or less the same across the country: the courts rarely make decisions on fines imposed on citizens (there are ONLY TEN “PUNISHMENT” DECISIONS). Ukrinform has written on the arguments that guide judges and which are supported by part of the legal community. The main ones are the inconsistency of government regulation No. 255, which tightens quarantine restrictions, with legislative standards. And also – the incomparability of the fines envisaged for violation (17,000 or 34,000 hryvnias) with the income level of the vast majority of Ukrainians.
Aleksandr Babich, director of the law firm “Aleksandr Babich”, also associates a small percentage of positive administrative sanctions (from a law enforcement perspective) for violations of the quarantine regime with the reluctance of judges to assume responsibility for responsibility for decisions that could have a negative impact. And also – with the lack of objective possibilities for the correct selection of evidence, the compilation of protocols and, therefore, the algorithm provided by the procedure for the examination of such cases. “If we draw parallels with production for violation of the rules of the road, hooliganism, disobedience to the police, we will see: there is a lot of punishment for all these types of administrative offenses. And there are numerous methodological recommendations approved by the management of the “concerned” departments. Which, in addition, have several editions (clarifications and changes introduced). But there are NO STANDARDS AND ALGORITHMS FOR THE PREPARATION OF ADMINISTRATIVE PROTOCOLS FOR VIOLATION OF QUARANTINE CONDITIONS. As well as generalizations of the judicial practice and recommendations on the examination of this procedure by the servants of Themis. Now, in this area, primary practice is just being formed. Consequently, such a motley reaction of the courts to apparently similar cases, different interpretations, and even different arguments when closing or referring cases for completion to law enforcement. In addition, what is happening at different stages of the trial, “said Alexander Babich. And, in particular, he cites the example of the “first swallowing” in the new judicial practice – the decision of the Kelmenetsky district court in the Chernivtsi region, which justified the “violator of the mask regime”. Reason: Despite the obligation to wear personal protective equipment in public places, people are not required to buy masks. For example, the state would have the right to require their port if it offered free to citizens.
The lawyer considers these explanations rather “strange”. Not convincing, in his opinion, the arguments that guided, closing the administrative procedure, some other Ukrainian courts. “Certain protocols, under various pretexts, were returned to the police even before the admindel had been examined in substance,” declared Alexander Babich, “and, for me, the badly executed documents were not the main reason for refusals. Fair courts self-eliminated from consideration. Obviously, given the large amount of fines provided for offenders. Indeed, the minimum recovery provided for in the new article of the Code of Ukraine on offenses administrative costs (44-3), amounting to 17,000 hryvnia, will certainly be a major blow to the state of ownership of at least 70% of Ukrainian citizens. ”
On the one hand, such an extra-procedural procedure for the return of administrative files is rather doubtful. On the other hand, the “responsiveness” of judges in the context of difficult material circumstances in which many Ukrainians have found themselves due to quarantine restrictions can be “understood and forgiven” by judges.
“Games” of lawyers in quarantine
“Many national lawyers have taken advantage of this situation. At the same time, “CARING FOR RESPECT FOR THE RIGHTS AND FREEDOMS OF CITIZENS” THEY FREQUENTLY COVER OR THE CHALLENGE OF INCREASING THE LEVEL OF ITS “RECOGNITION” BY THE RESONANT WAVE FOR THE COUNTRY AND THE WORLD, WHERE IT IS SIMPLE TO ASK THE COMMISSION TO TAKE THE COMMISSION “Natalia Rudenko. – Hence the attempts to unbalance the situation, to play on inconsistencies and legislative loopholes. The more hype, the more public attention on these people. ”Indeed, we have witnessed the way in which, through the media and social networks, some lawyers and lawyers have argued over bragging rights: we are supposed to help“ retaliate ”against the fine. For the sake of justice, it should be noted that some lawyers offer people free legal assistance, but enough of those who have made it a source of additional income. Ukrinform has also written in detail about this. result, ordinary Ukrainians suffer, who, perhaps, manage to save a fine of 17 thousand hryvnia. But 5 to 10,000 of them must be turned over to the “savior” – a skilled lawyer …
According to Natalya Rudenko, lawyers are adding fuel to the fire, which has rushed into mass prosecution to appeal the Council of Ministers’ “quarantine” resolution. “At the same time, they chose the simplest and most irresponsible route – simply asking to quash the decision,” said the lawyer. – Although you can follow the path of “human rights”. For example, asking the state to provide all citizens with personal protective equipment. And then already ask for their unconditional use. “
By the way, only in the Kiev district administrative court in a few days, more than a dozen requests were received to appeal the decision of the Cabinet of Ministers on the introduction of restrictions during quarantine. The press service of the court informs: the plaintiffs are invited to declare illegal at the same time certain points of the governmental decree prohibiting the regular transport, the visit of the parks, the places, the work of the food establishments, etc., and the document in its together. In addition, the KIEV DISTRICT ADMINISTRATION HAS OPENED AN APPEAL CASE ON THE APPEAL FROM THE MINISTER’S OFFICE ON THE TEMPORARY CLOSURE OF STATE BORDERS. A preparatory meeting in this matter was scheduled for May 18.
However, Natalya Rudenko predicts that a court decision should be expected at the earliest in a few months, after the lifting of the quarantine – even if it continues even after May 11. “The justice system will not rush to resolve these issues and will take every opportunity to delay the delay until the decision is no longer relevant. The appointment of a single preparatory meeting on May 18 does not mean that we are at least one iota closer to a solution. QUICK REACTION OF THE JUDICIAL SYSTEM, THE OPPORTUNITY OF OPERATIONAL PROTECTION OF CITIZENS ‘RIGHTS – A “PAIN OF THE HEAD” FOR ALL LAWYERS. And not only during quarantine. They can’t solve the problem for years, ”says Natalya Rudenko, managing partner of the rhetoric office.
Legal community looking for a legal solution
In the current situation, more than ever, an operational response and solution is necessary. Many lawyers agree: as a pandemic threatens national security, each state should have tools at its disposal to counter any violation, even a difficult one if it helps prevent the spread of infection. After all, the lives and health of millions of people are at stake. Therefore, UKRAINE – EVEN RESPONDING TO PUBLIC OPINION “DOESN’T HAVE THE RIGHT TO BE AWARE OF VIOLATIONS OF QUARANTINE STANDARDS.
In order to prevent legal disputes, the authorities should immediately bring all the regulations relating to the neutralization of COVID-19 into line with current legislation so that the quarantine measures introduced in the country are adequate, effective and efficient. As a “helping hand” from the state, legislators should develop a set of amendments that will assist in the legislative resolution of all matters related to quantitative restrictions. Adopting appropriate amendments to the law will not only help avoid conflict and divergence and prevent “permissiveness” during the current quarantine, but will also provide a clear algorithm for actions in the event of repetition (God forbid ) such problems in the future. But it is not a “short” path, the implementation of which takes at least several months. In the “short term”, law enforcement officials and the courts await clarification and methodological recommendations.
In particular, to clarify the provisions of article 44-3 of the Code of Administrative Offenses, in the opinion of Aleksandr Babich, director of the law firm Aleksandr Babich, clarifications and methodological recommendations will be useful, which will prevent also the police force to abuse it, which, for example, then such or such person “did not like”. Rationing, according to a famous lawyer, is possible at least on three levels:
1. EXPLANATIONS AND RECOMMENDATIONS OF THE SUPREME COURT. “I consider clarification by the highest judicial authority to be the most effective mechanism,” said Alexander Babich in a comment on Ukrinform. “Although the Supreme Court does not consider questions of administrative offenses (the courts of appeal are the highest courts of appeal against administrative protocols), but given the great importance of this question to society, I could provide such generalized interpretations. “
2. MIA METHODOLOGICAL RECOMMENDATIONS. According to Babich, we are talking about instructions that law enforcement officials should use, for example to identify and document traffic violations.
3. GENERALIZATION OF JUDICIAL PRACTICE BY APPEAL INSTITUTIONS AND LOCAL COURTS. “Courts of appeal, like the Supreme Court, have the right to make such generalizations,” says Alexander Babich. – In Ukraine, more than 10,000 protocols have already been developed for violations of quarantine rules. This is a sufficient table for analysis and conclusions. In addition, local courts could give their interpretation. In fact, many district courts have already had the experience of generalizing the practice of judicial examination of certain questions on their own sites. Of course, these clarifications will have no official statutory interpretation status. It is only a “judicial position”. But even this form will help prevent violations and abuses. “
In addition, experts pay attention to the practical actions of law enforcement officials before and during the compilation of protocols on administrative violation. For example, this is how the director of the law firm Alexander Babich, Alexander Babich, paints a “picture” of the usual reaction of the police: “A policeman is patrolling the area. In the best of cases, he turned on Bodik (chest video camera. – Ed.), In the worst case, he is off. A police officer sees a person without a mask in a public place. He is therefore obliged to put an end to the administrative violation. And provide the court with proof of a person’s guilt. What could be the proof? There are usually no witnesses around. The only documents are the police report (subjective presentation) and the protocol itself. And it’s a huge area of abuse. Therefore, I would suggest, for example, RECOMMENDING VESSELS TO TAKE ATTENTION ONLY TO THE OBJECTIVE EVIDENCE OF VIOLATIONS. In other words, we are talking, at least, of recording from a video camera. “
And here, the lawyer again refers to the experience of correcting traffic offenses. In particular, the fact that the courts will take into account the evidence and documents obtained through automatic crime detection systems. Such a practice, which would minimize the effect on court conclusions of the alleged “human factor”, according to Babich, should be extended to administrative violations of “quarantine”. When video recording of the actions of all police officers (and therefore also of offenders) becomes compulsory.
“On the other hand, JURISDICTIONS SHOULD TAKE CARE AND THE SUBJECTIVE POSITION OF THE PERSON WHO WANTS TO BE INVOLVED IN ADMINISTRATIVE RESPONSIBILITY,” advises Alexander Babich. – It is impossible to defend only the position of public authorities, ignoring the basic needs and objective circumstances which could affect the actions or inaction of a person. Perhaps her mask was blown off by the wind or the ropes on which she was held broke … There may also be other objective circumstances … In other words, the courts should take into account factors similar – an explanation by a person of the reasons for what happened. In my view, it is generally necessary to exclude the possibility of judicial review of such cases without an explanation from the likely offender. It is clear that at the same time, abuses on the part of these people are possible, who, for example, will refuse to provide explanations and will not appear in court. But this is only the area where detailed mechanisms to be implemented will be reflected in the generalization of judicial practice and in methodological recommendations, ”summarizes Alexander Babich.
Vladislav Obukh, Kiev
According to the materials: ukrinform.ru