What documents should be signed during quarantine and what to do with protocols for violation of this regime
By the Ruling No. 239 as of March, 25, the Cabinet of Ministers expanded the list of enterprises, that are allowed to work during quarantine. On the other hand, certain activities remain under the ban and liability for violation of the quarantine regime remains in force.
However, experts say that these legislative standards enable the law enforcement agencies to abuse.
What issues should be paid a special attention to and how to protect the companies’ rights if law enforcement officers try to bring them to responsibility for violation of such standards, told to Mind the head of the practice of criminal law and business protection, attorney Opanas Karlin.
As you know, starting from March 17, 2020, Ukraine introduced administrative liability for violation of quarantine rules.
Violators – citizens could be fined up from UAH 17,000 to UAH 34,000, and officials – between UAH 34,000 and UAH 170,000.
Rules, the violation of which arises responsibility, are established, in particular, by the Ruling of the Cabinet of Ministers of Ukraine on March 11, 2020, № 211 “On Prevention of the spread of Respiratory Disease COVID-19 caused by Coronavirus SARS-CoV-2 on the territory of Ukraine (as amended from 16th March, 2020 and 25th March, 2020).
The latter practice shows that these legislative novelties open the space for various types of abuse and oppression of business by the police, in particular, unjustified initiation of bringing to administrative responsibility.
The key to successful protection of the rights and legitimate interests of businesses will be properly organized preventative measures, as well as coordinated actions during the recording of administrative violations on the spot and during the legal proceedings: communication with police officers, recording their actions, drafting procedural documents, collecting and presenting evidence, collecting and representing evidence, determination of security strategies, etc.
How to issue a ban / receive a permit for an activity
For entrepreneurs, whose activities are prohibited, it is important to confirm the compliance with such a ban. In particular, it is necessary to issue the relevant local acts (orders, order on observance of quarantine regulations), ensure the installation of relevant information plates (regarding the temporary suspension of visitors reception), etc.
Enterprises whose activities are permitted should also take care not only of the introduction of sanitary and anti-epidemic measures, but also of their proper execution at the level of internal documents and points of information.
This will protect not only from the virus, but also from law enforcement agancies. In particular, we recommend:
• save documentary evidence of the purchase of personal protective equipment;
• introduce a record of conducting trainings of employees on compliance with sanitary and
• anti-epidemic measures and the obligation to use personal protective equipment;
• introduce the recording of the giving to employees of personal protective equipment (statements, registers, etc.);
• introduce penalties for employees who do not comply with the requirements of sanitary and anti-epidemic measures and do not use personal protective equipment.
What to do if the protocol is being drawn up a already
If a protocol is being drawn up regarding you or your employee, you should definitely use the right to provide explanations and comments on the contents of the protocol. It is also important to ensure the collecting evidence yourself.
Considering the existing case law of considering cases of such administrative offenses, the defense strategy in court can be built in the following directions:
- 1. Lack of appropriate, sufficient and admissible evidence of an administrative offense. It’s even better to provide evidence of innocence. Courts emphasize that the administrative protocol itself cannot be a sufficient evidence of an administrative offense. The appropriate evidence for this type of offense can be, for example, the testimony of witnesses – visitors, staff (for example, the Ruling of a judge of the Slavic Court of Donetsk Region dated on 20th of March, 2020 in case No. 243 / 2662/20).
- 2. Non-compliance of the protocol on an administrative offense with the requirements of Article 256 of the Code of Administrative Offenses, which, in accordance with the clarifications of clause 12 of the Rulling of the Plenum of the Superior Specialized Court of Ukraine for Civil and Criminal Cases as of 17th of October, 2014 No. 11, can lead to its return in order to eliminate defects and for proper execution. In addition to formal non-compliance, the following may occur:
a) failure to indicate or incorrect indication of a normative act, the violation of which is recorded;
b) failure to indicate all necessary circumstances and evidences of an administrative offense, that violates not only the norms of national legislation, but the norms of the Convention for the Protection of Human Rights and Fundamental Freedoms, since, on the one hand, it deprives a person of the opportunity to properly prepare for the defense (“Malofeyeva v. Russia”, decision of the ECHR as of May 30, 2013), and on the other hand, it forces the court to undertake the functions of the Prosecutor, independently looking for evidence of the person’s guilt and establishing circumstances not specified in the protocol, and this is unacceptable (“Karelin v. Russia ”, decision of the ECHR as of September 20, 2016).
- 3. Release from administrative responsibility вгу to the insignificance of the offense (for example, the decision of the judge of the Izmail City District Court of Odessa Region dated on 20th March, 2020 in the case No. 946 / 1769/20).
The concept of insignificance is evaluative and may consist in the fact that the acts, although it contains formal signs of an administrative offense, did not and could not cause significant harm to protected public relations.