The analysis of court practice (about 100 court decisions that were published in the Unified State Register of Court Decisions) gives reasons to assert the following:
1. the absolute majority (over 80%) of protocols on violations of quarantine rules, sanitary norms and rules are sent by the courts to law enforcement agencies, which prepared the relevant materials, for proper registration and elimination of deficiencies (for revision);
2. in the protocols, law enforcement officers usually do not indicate all the information that is necessary for the court to consider the case (including, but not limited to: specific rules for quarantine of people, sanitary-hygienic, sanitary-anti-epidemic rules and norms provided for by the Law of Ukraine “On Protection population from infectious diseases” or other acts of legislation, or decisions of local self-government bodies on issues of combating infectious diseases), which is the basis for additional revision of such materials;
3. among the resolutions adopted by the courts on prosecution, by which the courts find persons guilty and impose administrative fines on them (from UAH 17,000.00 to UAH 170,000.00), in 50% of cases the person himself admits his guilt and applies to the court with the appropriate statement;
4. in view of the terms of imposing an administrative penalty limited by Article 38 of the Code of Administrative Offenses (three months from the day of the offense) and the need for additional processing of materials, it seems that the persons in respect of whom the protocols were drawn up can avoid the responsibility provided for in Article 44-3 of the Code of Administrative Offenses.
Below are some examples from case law:
І. Resolutions of courts by which persons are found guilty of committing offenses:
– a person in the city of Lviv on the street Zhovkivska, 3, being an official of the “Clothing Repair” establishment, did not stop the work of the establishment, which violated the requirements of subsection 3 of paragraph 2 of the resolution of the Cabinet of Ukraine dated 11.03.2020 No. 211 and protocol No. 9 of the Lviv City Council dated 18.03.2020. According to written explanations, on March 20, 2020, she came to the “Clothing Repair” atelier to sew protective masks for loved ones. After analyzing the nature of the offense committed and the circumstances of its commission, namely: the work of the “Clothing Repair” institution was carried out by the private entrepreneur for the purpose of providing means of antiviral infection, the person of the violator should be released from administrative responsibility due to the minor nature of the offense committed and a verbal warning should be announced to him.
Shevchenkivskyi District Court of the city of Lviv
http://www.reyestr.court.gov.ua/Review/88418760
– on March 19, 2020, in the city of Konotop, a person, being an official of “AV Metal Group” LLC, did not stop the work of the warehouse and sold metal products, which violated the requirements of subsection 3 of paragraph 2 of the Resolution of the Cabinet of Ministers of Ukraine No. 211 dated 11.03.2020 and committed an offense , provided for by Art. 44-3 of the Code of Administrative Offenses. At the court hearing, he pleaded not guilty and explained that the warehouse was open for receiving visitors and there was free access for citizens who could enter and buy metal products one at a time. The person was found guilty and held liable in the amount of UAH 34,000.00.
Konotop city and district court of Sumy region
http://www.reyestr.court.gov.ua/Review/88376803
– the person sold food products from his own hands, which violated the rules regarding the quarantine of people, sanitary and anti-epidemic rules and norms. She admitted her guilt. Fine in the amount of UAH 17,000.00.
Shevchenkiv District Court of the city of Kyiv
http://www.reyestr.court.gov.ua/Review/88396849
– on March 24, 2020, the person who is the owner of the “Household Goods” store did not stop the operation of the store and received visitors, thereby violating the requirements of subsection 3 of the Cabinet of Ministers resolution dated March 16, 2020. No. 215 and committed the offense provided for in Art. 44-3 of the Code of Administrative Offenses. The violator did not appear at the court session, but submitted a corresponding statement to the court, in which he asked to consider the case in his absence, admitted his guilt in full. Fine in the amount of UAH 17,000.00.
Dunayeve district court of Khmelnytskyi region
http://www.reyestr.court.gov.ua/Review/88464300
ІІ. Court rulings by which materials are returned for proper registration (for revision)
– the person carried out the transportation of passengers on the NEOPLAN 122 vehicle exceeding the number of passengers set for transportation determined by paragraph 3 of subparagraph 4 of item 2 of the Resolution of the CMU dated March 12, 2020 No. 211, namely: in the amount of 53 passengers. The protocol on the administrative offense does not indicate what kind of transportation was carried out by the offender, no relevant documents were attached that would claim that he was carrying out prohibited transportation in accordance with the resolution of the Cabinet of Ministers of Ukraine No. 211 dated 11.03.2020.
Yavorivsky District Court of Lviv Region
http://www.reyestr.court.gov.ua/Review/88418794
– the seller of the kiosk at the Nizhyn bazaar did not stop the work of the institution and received visitors. The protocol on the administrative offense does not contain information about which rules were violated by the person and which normative legal act established these rules.
Nizhyn city and district court of Chernihiv region
http://www.reyestr.court.gov.ua/Review/88444660
– in the “AUTOSHOP” store in the city of Uman, the seller did not stop trading in the above-mentioned store during the quarantine period. The protocol does not state the essence of the offense at all. The norm of Art. 4-3 of the Criminal Procedure Code is blanket, and the protocol does not indicate a specific legal norm that was violated.
Uman city district court of Cherkasy region
http://www.reyestr.court.gov.ua/Review/88395745
– being the manager of the PT “Lombard “Noviy Chas” – other types of lending, the person did not stop the work of the institution and received visitors, thereby violating the requirements of paragraph 3.2 of the CMU Resolution No. 211 dated 11.03.2020 and committed an administrative offense. However, the protocol on the administrative offense does not contain information about exactly which rules were violated by the person and which normative legal act established these rules.
Severodonetsk City Court of Luhansk Oblast
http://www.reyestr.court.gov.ua/Review/88463946
– sold five pairs of jeans and four jackets, which violated the quarantine rules. In the protocol on an administrative offense drawn up against a person, there is no information about exactly which rules were violated and by which legal act these rules were established.
Gornostaivsky District Court of Kherson Region
http://www.reyestr.court.gov.ua/Review/88398644
– being an official of the “Seeds” sales point, she did not stop her work, namely, the sale of seeds. The place of commission of the offense is indicated in the report as the “Niva” market in Chernihiv, but its exact or at least approximate address is not indicated, which contradicts the provisions of the Code of Criminal Procedure.
Desnyan District Court, Chernihiv
http://www.reyestr.court.gov.ua/Review/88467307
– in the “Myasny Kombinat” store, which works as a seller of goods, carried out trade in food products without means of personal protection, namely (a medical mask). The specified rule of law is a blanket one, since it only establishes general signs of the rules of conduct, and to establish the signs that are missing, the rule of law refers to the norms of another regulatory act of another branch of law. At the same time, the specified rule of law must be specified when the essence of the offense is stated.
Krasnoarmii city and district court of Donetsk region
http://www.reyestr.court.gov.ua/Review/88391028
– being the person who manages the construction and economic supermarket “33 square meters”, located at the address: Kakhovka, str. Yarmarkova 2, allowed the supermarket to operate under quarantine conditions. They do not contain any data on the fact that local self-government bodies made relevant decisions, their publication, or case files on an administrative offense against a person.
Kakhovsky City and District Court of Kherson Region
http://www.reyestr.court.gov.ua/Review/88398692
– being the seller of the Charka Bar cafe, at the address: Kharkiv, Yuryeva Boulevard, 19-B, did not stop the work of the establishment and received visitors. No evidence was attached to the protocol to confirm the information about the person who is being held administratively liable, namely evidence that the person really works as a seller of the Charka Bar cafe.
Frunzensky District Court of Kharkiv
http://www.reyestr.court.gov.ua/Review/88395584
– a person in the city of Vyshhorod ensured the operation of the trade pavilion “Zootovary”, which violated the Resolution of the CMU No. 211 dated 11.03.2020, namely, carried out retail trade of pet products. However, in the protocol on an administrative offense drawn up against a person, there is no information about exactly which rules were violated and which legal act established these rules.
Vyshgorod District Court of Kyiv Region
http://www.reyestr.court.gov.ua/Review/88459950
ІІІ. Resolutions of courts, by which proceedings in cases are closed in connection with the absence of an offense in the actions of a person
– the person, being an official of the “Comfi” store No. 1 on March 19, 2020, did not stop the work of the establishment and received visitors, thereby violating the requirements of Clause 3 Clause 2 of the Resolution of the Cabinet of Ministers No. 211 dated March 1, 2020, thereby committing an offense provided for in Art. . 44-3 of the Code of Administrative Offenses.
From the evidence provided by the person, it can be seen that as of March 19, 2020, there were 217 units of communication devices for sale in the store (28 mobile phones and 189 smartphones), which is confirmed by the accounting certificate, which is attached to the objections. On March 19, 2020, the store sold 2 mobile phones (smartphones), which is confirmed by cash receipts, the sale of which is not prohibited by the aforementioned resolution of the CMU.
Zhovtovod city court of Dnipropetrovsk region
http://www.reyestr.court.gov.ua/Review/88432922
– being an official of the “Forsaj” store, he did not stop the work of the establishment and received visitors. He pleaded not guilty, because video surveillance is carried out in the store, at that time the store was closed and there were no visitors and no trade was carried out.
Konotop city and district court of Sumy region
http://www.reyestr.court.gov.ua/Review/88398084
– while working and carrying out his entrepreneurial activity in a public catering establishment, he violated the rules regarding the quarantine of people. He did not admit his guilt in the offense committed, he explained to the court that the catering pavilion store was closed, visitors were not received, sushi was sold in the “Olymp” grocery store.
Tetiiv District Court of Kyiv Region
http://www.reyestr.court.gov.ua/Review/88382735
– according to the protocols, a person in the village of Tereshki, Poltava district, sold potatoes and onions from a car in an unspecified place and without a permit, which violated the quarantine regime established by Resolution of the CMU No. 211 dated 11.03.2020, and committed an administrative offense. At the court hearing, he did not admit guilt in the committed offenses and explained that he did not sell goods, but waited for his acquaintance, to whom he brought potatoes and onions at his request, and also disinfected the car.
Poltava District Court of Poltava Region
http://www.reyestr.court.gov.ua/Review/88410209
– in the city of Sumy, a person, being an official of an institution, sold tobacco products, thereby violating the requirements of subsection 3 of paragraph 2 of Resolution of the Cabinet of Ministers of Ukraine No. 211 dated 11.03.2020. He pleaded not guilty at the court hearing and explained that he was selling tobacco products through the window of the department store, which is engaged in retail trade of food products, beverages and tobacco products; did not directly receive visitors.
Kovpakivsky District Court of Sumy
http://www.reyestr.court.gov.ua/Review/88372182
We urge you to strictly observe all rules and regulations. Take care of yourself and be healthy!
If you have any questions or need to provide additional consultations and clarifications or provide other legal assistance – contact us, we are ready to help you!
Attorney Yaroslav Hasiak