The report is prepared by a lawyer, expert of the group “Police under control” Yevgen Krapyvin for the expert discussion “Development of legislation on administrative responsibility. New Code – necessity and perspective”, which took place in the Verhovna Rada of Ukraine Institute of Law on April 3, 2017.
Administrative tort law of Ukraine is still based on the Soviet Union Code of Ukraine on Administrative Offences (hereinafter referred to as CUoAO) of 1984, what prevents its reform despite groundwork carried out by experts and scholars.
First of all, we are talking about adoption of a new codified act – the Code on Administrative Offences – one of top-priority measures provided for by the Conception of the Administrative Reform in Ukraine[1] of 1998. This measure wasn’t realized because of a lack of political will among lawmakers and lack of consolidated approach within academic circles and state bodies, which use norms of administrative tort law. At that, during 1998-2013 at least three projects of the CUoAO have been submitted for consideration of the public, but none of them haven’t been supported. Development and adoption of the new code have been “canned” for years[2].
Today, taking into consideration reformation of the law enforcement (creation of anti-corruption bodies, reform of the police, etc.) and criminal justice (approval of the CPC of 2012, introduction of the Institution of Criminal Offences) we understand that administrative tort law has to undergo considerable changes. In this regard we have to talk about bringing the legislation on administrative responsibility into accordance with standards of the EU and practice of the European Court of Human Rights (hereinafter referred to as ECHR), taking into account intentions of Ukraine as for integration into the EU and international legal commitments it has to the Council of Europe.
As for conceptual conditions of administrative tort law we have to note next notions:
First, deliberate mixture of offences in the field of public administration and general crimes (petty larceny, disorderly conduct, etc.) or civil legal violations (unauthorized occupation of a land plot, a stowaway, violation of telecommunication service rules, etc.) doesn’t correspond to European conceptions in the sphere of administrative tort law.
Such laws of tort don’t have direct relevance to the sphere of public administration. They don’t encroach on administrative relations, they are beyond the competence of the public administration bodies and “don’t fit” in the contemporary paradigm of administrative responsibility[3]. Administrative offences and administrative sanctions within the legal field of European countries with “sustained democracy” mean activities of administrative bodies calling persons to account in administrative (extrajudicial) order[4]. European Court of Human Rights constantly emphasizes this point, underlining that certain part of administrative offences in Ukraine appears essentially criminal in nature. It applies mostly to violations in the field of public safety and road traffic, which are in the competence of the National Police of Ukraine.
Procedures of assigning responsibility for administrative offences don’t meet many requirements regarding such procedures, as for respect for human rights and fundamental freedoms, particularly provisions of the Recommendation No. R (91) 1 of the Committee of Ministers of the Council of Europe for member countries about administrative sanctions as of February 13, 1991.
Historically, administrative offences (misconduct, police misconduct, violation) were formed as a step towards higher effectiveness of the criminal law, proper rule of law and criminal procedural economy by highlighting them and punishing not by representatives of the judicial power (judges), but the police, representing the administrative authority[5].
In this way new legislation in the field of administrative responsibility (may be a codified act) has to list solely administrative offences – violations that encroach upon an established order of public administration and are in competence of the public administration bodies. It provides for necessity to delegate power to proceed different administrative cases, which are now proceeded by the court, to subjects of the public authority (bodies and officials), – fail to fulfill administrative requirements; violation of rules for the conduct of pre-election campaigning; violation of restrictions regarding etc.[6]
Second, reform of the administrative tort law can be realized according to the “German” pattern (administrative torts are a variety of criminal offences, which fall within the scope of criminal laws), or a “French” one (administrative tort legislation is parted from the criminal). Both variants are coordinated with the Criminal Justice Reform Conception of 2008, which after adoption of the CPC in 2012 brought closer establishment of the Institution of Criminal Violations, which will include general criminal administrative offences containing criminal legal sanctions and/or proceeded by courts.
Of course there is a mode typical for countries, that don’t separate administrative law at all, – the USA, Great Britain and other countries with Anglo-Saxon standards of jurisprudence, which are widespread across Europe too in countries with the case-law.
Third, next conceptual measures have to be crucial for administrative torts (offences) (O. Banchuk):
- action violates administrative rules (norms in the field of public administration);
- sanction provides for administrative punishment (not by the name, but by the content);
- availability of administrative order regarding calling to account (not judicial).
Next we’ll attract your attention to a necessity of “surgical” changes due to respective decisions of the ECHR and to necessity to take into account recommendations of the Court regarding upgrade of the legislation in the field of administrative responsibility.
We’d like to note, that ECHR define administrative offences as criminal and provide for a punishment by way of administrative detention and communal services (restriction of freedom and personal inviolability according to Article 5 of the Convention on Human Rights and Fundamental Freedoms (hereinafter referred to as CHRFF). This situation stipulates for a necessity to expand guarantees, provided for by Article 6 of the Convention, in proceedings on administrative offences.
The right to fair trial is ensured by guarantees in Article 6 of the Convention, which can be classified as follows: 1) those, which facilitate possibility of a trial, including establishment of a court according to the law, independence and impartiality of the court; 2) those, which contribute to effective judicial protection of a person – fair trial; public hearing; reasonable time of a legal investigation; presumption of innocence of a person, who is called to administrative account; the right to legal assistance; possibility to appeal against judgments[7].
Necessity to resolve the situation by introduction of changes to the legislation is stated in the Recommendation Rec (2004)5 of the Committee of Ministers of the Council of Europe for member countries about verification of draft laws, current laws and administrative practice of their compliance with standards, provided for in the ECHR as of 12.05.2004[8].
Below you will see several positions about a necessity to introduce legislative changes in the field of administrative tort law, which were underlined by the ECHR in its decisions during recent years:
- Proceeding of cases on administrative offences in cases considered as criminal by the ECHR, is carried out with violation of Article 6 of the CHRFF, because the judge is not impartial.
Decision of the ECHR on the «Case of Karelin v. Russia»[9] as of 20.09.2016 the absence of a prosecuting party in proceeding cases on administrative offences according to the Code on Administrative Offence of the Russian Federation (major provisions of the CUoAO of 1984 are similar to the Russian ones) is a violation of the right to fair trial (Article 6 of the CHRFF) in cases, which are considered criminal according to the ECHR.
According to the current CUoAO a report, drawn by police officers on major of cases and sent to the court is the main procedural document on administrative offences and main evidence of committed administrative offence[10]. In a trial the judge performs the role of a prosecutor (the Code doesn’t have this term) and the judge.
ECHR reckons that the practice when the judge performs the role of a prosecutor and representative of the judicial power has (i) the adverse effect on the impartiality of the trial and appeal courts); (ii) the practical implementation of the principle of equality of arms and adversarial procedure.
Thus, this decision of the ECHR concerns all officials, who draw reports on administrative offences and send them to the court according to the CUoAO.
This situation makes it impossible to appeal the judgment by the body, which has sent the material of the administrative case to the court, what M. Kamenev considers as a “corruption generating factor, that helps offenders avoid responsibility and makes judges feel safe as far as their decisions cannot be appealed and inevitably enter into legal force. The decision that entered into legal force almost guarantees the impossibility of prosecuting the judge for his deliberate unlawful decision”[11].
- Administrative offence, which sanction provides for administrative arrest as a punishment, is considered criminal and requires to respect all guarantees of Article 6 of the Convention on Human Rights and Fundamental Freedoms.
Decisions of the ECHR on next cases provide good examples of this position:
- “Case of Gurepka v. Ukraine” as of April 8, 2010[12];
- “Case of Korkev and Karpenko v. Ukraine” as of October 21, 2010[13].
Moreover, criteria defining an offence as of a minor character are elaborated in the explanatory report to the Protocol No. 7 of the ECHR (ratified by the Law No. 475/97-VR as of 17.07.97). This report states that the main criterion for this offence is an imprisonment[14].
- Calling a person to administrative account for violation of an order that haven’t been clearly defined by the national law is incompatible with provision of Article 7 of the Convention (nulla poena sine lege).
This position was developed by the ECHR in its decision on the “Case of Verentsov v. Ukraine” as of April 11, 2013[15]. Verentsov was called to administrative account according to Article 185-1 of the CUoAO (violation of the order of organization and procedure of assemblies, meetings, street marches and demonstrations).
In practice, after decision of the Supreme Court of Ukraine, decisions of the ECHR on “Case of Verentsov v. Ukraine” and “Case of Shmushkovytch v. Ukraine” the police keep on drawing reports on inexistent in Ukraine order of peaceful assembly. Thus, we see the positive dynamics – comparing to 2015, when 69 persons were called to administrative account[16], in 2016 only 15 similar cases ended up in courts – 4 of them were sent back and 11 were investigated. Our research showed that 1 person was punished by a warning and 10 other cases were closed[17].
- Too short terms for investigation of a case on administrative offence provided for by the Code of Ukraine on Administrative Offences cause violation of the right to have time to elaborate defense and the right to choose legal assistance (pp. 1, 3 Article 6 of the CHRFF).
Violation of these provisions was underlined by the ECHR in its decision on the “Case of Kornev and Karpenko v. Ukraine” and “Case of Verentsov v. Ukraine”. Article 277 of the CUoAO provides for terms to proceed administrative offence, stated in Article 185-3 (1 day) and Article 185-1 (3 days), that violate paragraph b p. 3 Article 6 of the CHRFF that guarantees the right to every charged person “to have time and possibilities necessary for preparation of the defense”.
- Investigation by the Appeal Court of the decision on administrative arrest after serving the complete punishment violates rights to appeal, declared by Article 2 of the Protocol No. 7 of the CHRFF.
This conclusion was made by the ECHR on the “Case Shvydka v. Ukraine” as of October 30, 2014[18], where the ECHR saw violation of rights of the claimant to appeal against punishment, because at the moment of submission of the appeal Galyna Shvydka had in fact served her 10 days of administrative arrest.
Not considering that after discharge of a court order by the Appeal Court a person can demand compensation of moral and material damage, the ECHR doesn’t consider such retrospective and exclusively compensatory way of legal defense as substitution for the right to reconsideration of the case, stated in Article 2 of the Protocol No. 7. The Court has declared that the Convention had to guarantee not some theoretical or illusive rights, but rights that are effective in practice (mutatis mutandis, abovementioned decision on the “Case of Airey v. Ireland”, p. 24, and decision on the “Case of Garcia Manibardo v. Spain”, application No. 38695/97, p. 43, ECHR 2000-ІІ).
- Violation of the principle of legal certainty, which is based on unforeseen administrative procedure of forced delivery, what equals to apprehension of a person according to the law (restriction of freedom and personal inviolability according to Article 5 of the CHRFF)
European Court on Human Rights made a decision on February 18, 2010 on the “Case of Garkavy v. Ukraine” and stated that any person should not be deprived of a freedom except for cases mentioned in p. 1 Article 5 of the CHRFF. According to legal notions of the European Court on Human Rights detention in custody without special legal reason or without clear rules controlling such questions and without respective leave of a court, is incompatible with a principle of legal certainty and the principle of protection against abuse which permeate the Convention[19].
CUoAO provides for not just an institution of detention (a measure to ensure proceeding in cases of administrative offences), but also a delivery of the person to the police with a purpose to draw a report on administrative offence if it was impossible to draw it on the site of occurrence and if it is obligatory to draw a report (Article 259 CUoAO).
According to p. 9 p. 1 Article 23 of the Law of Ukraine “On the National Police” police is authorized to deliver in cases and in the order, defined by the law, detainees, suspected of criminal offences and persons, who committed administrative offences. It means that police officers are authorized to force those suspects to service premises of the territorial department of the police or other service premises.
Whether the person commits an administrative offence, defined by p. 1 Article 262 of the CUoAO (disorderly conduct, domestic violence, etc.), police officer can make a decision on administrative detention of such person and in that case it is subjected to the delivery. Such argumentation is not very convincing considering that Article 259 of the CUoAO “Delivery of the offender” provides for a single reason for delivering citizens: “in order to draw a report on administrative offence if it was impossible to draw it on the site of occurrence and if it is obligatory to draw a report”
It means that if on the place of occurrence there is an ability to draw a report on administrative offence, it is prohibited to deliver a person[20].
Thus, we are aware of s well-known decision of the Constitutional Court of Ukraine No. 10-рп/2011 as of 11.10.2011, which has stated that despite the fact that delivery differs from the administrative detention, it is a measure of compulsion related to the constitutional right to freedom and personal inviolability.
ECHR stated in its decisions for several times that when talking about deprivation of a freedom it is highly important to ensure general principle of legal certainty (decisions on the “Case of Baranovsky v. Poland” as of Narch 28, 2000, “Case of Novik v. Ukraine” as of December 18, 2008). So, we are talking about violation of the principle of legal certainty, because even after mentioned decision of the CCU, the question of differentiation between delivery and detention, their purposes and reasons wasn’t settled on legislative level.
In our opinion, question of forced delivery of the person by the National police must be resolved by the Constitutional Court of Ukraine and the ECHR which occasionally express its opinion about related topics.
[1] Pro zakhody shchodo vprovadzhennia Kontseptsii administratyvnoi reformy v Ukraini: Ukaz Prezydenta Ukrainy vid 22 lypnia 1998 r. № 810/98 // Ofitsiinyi visnyk Ukrainy. – 1998. – № 21. – S. 32.
[2] Hurzhii T.O. Perspektyvy rozvytku administratyvno-deliktnoho zakonodavstva Ukrainy // T.O. Hurzhii / Administratyvne pravo i protses. – № 3(9). – 2014. – Yuvileinyi. – S. 156.
[3] Ibid. – S. 158.
[4] Banchuk O.A. Zakonodavstvo pro administratyvni delikty yevropeiskykh derzhav: zahalna kharakterystyka // O.A. Banchuk / Administratyvne pravo i protses. – №1(11). – 2015. – S. 102.
[5] Ibid. – S. 97.
[6] Hurzhii T.O. Perspektyvy rozvytku administratyvno-deliktnoho zakonodavstva Ukrainy // T.O. Hurzhii / Administratyvne pravo i protses. – № 3(9). – 2014. – Yuvileinyi. – S. 160.
[7] Iryna Boiko. Zastosovnist statti 6 KZPL pry rozhliadi sprav pro administratyvni pravoporushennia / Visnyk Natsionalnoi asotsiatsii advokativ Ukrainy. – №9(26). – veresen, 2016 r. – S. 16.
[8] Rekomendatsiia Rec(2004)5 Komitetu ministriv Rady Yevropy derzhavam-chlenam shchodo perevirky zakonoproektiv, isnuiuchykh zakoniv ta administratyvnoi praktyky na vidpovidnist standartam, vykladenym v Yevropeiskii konventsii z prav liudyny, ukhvalena na 114-i sesii Komitetu ministriv vid 12 travnia 2004 roku [Elektronnyi resurs]. — Rezhym dostupu: http://zakon5.rada.gov.ua/laws/show/994_574
[9] CASE OF KARELIN v. RUSSIA [Elektronnyi resurs] / HUDOC. Rezhym dostupu: http://hudoc.echr.coe.int/eng#{“itemid”:[“001-166737”]}
[10] Loshytskyi M. V. Aktualni pytannia udoskonalennia zakonodavstva z oformlennia orhanamy vnutrishnikh sprav materialiv pro administratyvni pravoporushennia / M. V. Loshytskyi, T. P. Minka // Naukovyi visnyk Dnipropetrovskoho derzhavnoho universytetu vnutrishnikh sprav. – 2015. – № 1. – S. 20.
[11] Mykhailo Kameniev. Prytiahnennia do administratyvnoi vidpovidalnosti politsiieiu v kn.: Prava liudyny v diialnosti ukrainskoi politsii – 2016. Naukovo praktychne-vydannia / Uporiad. ta red. Krapyvin Ye.O. – K. : Sofiia-A, 2017 r. – S. 88.
[12] Rishennia Yevropeiskoho sudu z prav liudyny u spravi «Hurepka proty Ukrainy» vid 8 kvitnia 2010 r. // Praktyka Yevropeiskoho sudu z prav liudyny. Rishennia. Komentari. – 2011. – № 3. – S. 191–201.
[13] Rishennia Yevropeiskoho sudu z prav liudyny u spravi «Korniev i Karpenko proty Ukrainy» vid 21 zhovtnia 2010 r. // Praktyka Yevropeiskoho sudu z prav liudyny. Rishennia. Komentari. – 2011. – № 4. – S. 87–106.
[14] Pysarenko N.B. Impact of the resolution of the European court of human rights on formation of the position regarding the application of the separate provisions of the legislation on administrative offences / N.B. Pysarenko // Administratyvne pravo i protses. – №2(12). – 2015 – S. 17.
[15] Rishennia Yevropeiskoho sudu z prav liudyny u spravi «Vierientsov proty Ukrainy» vid 11 kvitnia 2013 r. // Praktyka Yevropeiskoho sudu z prav liudyny. Rishennia. Komentari. – 2013. – № 3. – S. 73–104.
[16] Yurii Chumak. Dotrymannia prava na myrni zibrannia v diialnosti politsii v kn.: Prava liudyny v diialnosti ukrainskoi politsii – 2016. Naukovo praktychne-vydannia / Uporiad. ta red. Krapyvin Ye.O. – K. : Sofiia-A, 2017 r. – S. 227.
[17] Mykhailo Kameniev. Prytiahnennia do administratyvnoi vidpovidalnosti politsiieiu v kn.: Prava liudyny v diialnosti ukrainskoi politsii – 2016. Naukovo praktychne-vydannia / Uporiad. ta red. Krapyvin Ye.O. – K. : Sofiia-A, 2017 r. – S. 86.
[18] Rishennia Yevropeiskoho sudu z prav liudyny u spravi «SHvydka proty Ukrainy» vid 30 zhovtnia 2014 r. // Ofits. visn. Ukrainy. – 2015. – № 22. – St. 625.
[19] Rishennia Konstytutsiinoho Sudu Ukrainy vid 11 zhovtnia 2011 roku № 10- rp/2011 u spravi za konstytutsiinym podanniam 50 narodnykh deputativ Ukrainy shchodo vidpovidnosti Konstytutsii Ukrainy (konstytutsiinosti) okremykh polozhen statti 263 Kodeksu Ukrainy pro administratyvni pravoporushennia ta punktu 5 chastyny pershoi statti 11 Zakonu Ukrainy «Pro militsiiu» (sprava pro stroky administratyvnoho zatrymannia). Sprava № 1-28/2011. [Elektronnyi resurs]. — Rezhym dostupu : http://zakon0.rada.gov.ua/laws/show/ v010p710-11/print1454405809073231.
[20] Bortnyk N. P., Yesimov S. S., Kryzhanovska V. A. Normatyvno-pravove rehuliuvannia dostavlennia hromadian u politsiiu: teoretychni aspekty // N. P. Bortnyk, S. S. Yesimov, V. A. Kryzhanovska/ Administratyvne pravo i protses. – №1(15). – 2016. – S. 87.