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“Presidential penalties”: is the indefeasible responsible for administrative violations?

Bringing former Presidents of Ukraine to responsibility has become a national idea. And if in some cases it is a matter of honor, in others – the idee fixe. Usually, when we talk about the responsibility of the head of state, we mean criminal responsibility. And what about the administrative?

Recently, the braking the news appeared that the President of Ukraine and several officials could be brought to administrative responsibility for visiting a cafe without a mask. And if the decision concerning other visitors of establishment has already been made (the court found them guilty of commission of the offense provided by the Article 44-3 of the Code of Ukraine about administrative offenses (further – CUAO) and imposed on them an administrative penalty at a rate of UAH 17 000 thousand) , the question concerning the President is not so clear.

The fact is that the provisions of Part 1 of Art. 105 of the Constitution of Ukraine provides for the right to inviolability of the President of Ukraine while performing his duties.That is why the judge of the Khmelnytsk City District Court of the Khmelnytsk Region faced a difficult task and he appealed to the Chief Justice to resolve the issue of appealing to the Constitutional Court of Ukraine regarding the official interpretation of Part 1 of Art. 105 of the Constitution of Ukraine, in terms of the possibility of bringing the President of Ukraine to administrative responsibility for committing an administrative offense while performing his duties.

To predict the possible position of the Constitutional Court of Ukraine (hereinafter – the CCU), in the event the Plenum of the Supreme Court makes a relevant decision, it is worth addressing a similar issue, which was investigated by the CCU in 2003. Thus, in the decision as of 10.12.2003 in the case №1-17 / 2003 the CCU came to the conclusion that the provisions of Part 1 of Art. 105 of the Constitution of Ukraine should be understood that the President of Ukraine is not criminally responsible for the period of performance of his duties, and no criminal proceedings may be instituted against him.

A simple analogy, such as “if there is no criminal liability, then administrative liability as well,” may appear mistaken without a thorough understanding of the nature of the institution of inviolability.

The inviolability should not be taken as a separate privilege of the President. The institution of inviolability is a guarantee for the appropriate level of legal protection for period of duties performance.
The right of inviolability of the President of Ukraine should be understood as an organic component of his constitutional status, which aims to provide conditions tp the exercise his powers (paragraph 3 of the decision of the CCU -171-17 / 2003).

The whole process of pre-trial investigation, trial, etc., would objectively impede the ability to properly exercise the constitutional powers of the President.

At first glance, bringing to administrative responsibility does not сreate such obstacles to the President’s activities. People’s deputies, as former holders of the right of inviolability (though it differs), oftenly got in the news for violation of traffic rules, paid fines, sued the police.

However, if the payment of the fine does not cause special obstacles to the activity of the head of state, the imposition of an administrative penalty in the form of community service or administrative arrest, or administrative arrest will definitely “tie the hands of the President” for a while.

I believe that each case should be considered through the prism of the sanction of the article of the CUAO: does it interfere with the purpose of the institution of inviolability.

The comment was given for the publishing house Legal Practice Law ua