As part of the legal education of citizens and awareness-raising efforts, the Human Rights Ombudsman provides clarification on current concerns of applicants in terms of existing rights and obligations when brought to administrative responsibility.
The proceedings in cases of administrative offences, the types of administrative offences, and the responsibility for their commission are established by the Code of Ukraine on Administrative Offences (as of 19 November 2013, hereinafter – CAO), which is applicable in the Republic until the appropriate legislation is adopted in the DPR.
According to the CAO, an administrative offence (misconduct) is an unlawful, culpable (intentional or negligent) act or omission that infringes on public order, property, rights and freedoms of citizens, on the established procedure and for which administrative responsibility is stipulated by law.
A protocol is drawn up on the commission of an administrative offence, except from cases provided for in Article 258 of the Code.
The protocol on an administrative offence is to be done in two copies; one of them is taken, against receipt, by a person held administratively liable.
The rights and obligations of the person against whom the administrative case is being conducted are defined in Art. 268 of CAO. When drawing up the protocol, the person held administratively liable shall be explained his/her rights and obligations provided for in Article 268 of the Code, which is included in the report. One of the important guarantees of the rights of a person who is held administratively liable is the right to use the legal assistance of a lawyer or other legal specialist, who is legally entitled to provide legal assistance in person or on behalf of a legal entity. A person held administratively liable has the right to provide explanations and comments on the contents of the report that are attached to it, as well as state the reasons for his/her refusal to sign it (part 3 of article 256 of CAO). When considering a case, a person held administratively liable has the right to speak in his/her native language and use the services of an interpreter if they do not speak the language of the proceeding. In addition to the above, persons in respect of whom administrative proceedings have been instituted also have the right to familiarize themselves with the case materials, give explanations, present evidence, and file petitions.
It is worth noting that according to the provisions of Art. 44 of the Constitution of the Donetsk People’s Republic, no one is obliged to testify against themselves, their spouse and close relatives determined by law.
Also, in order to ensure guarantees of rights and freedoms, an administrative offence case is considered in the presence of a person held administratively liable. It is possible to consider the case in the absence of such a person, provided that he/she has been duly notified of the place and time of the hearing and that he/she has not filed a motion to postpone the hearing of the case. As for obligations, according to Part 3 of Art. 268 of CAO, the offender must appear for consideration of the case. When considering cases of administrative offences under part 1 of Article 44, Articles 51, 146, 160, 172-4 – 172-9, 173, part 3 of Article 178, Articles 185, 185-1, Articles 185-7, 187 of CAO, the presence of a person held administratively liable is mandatory. In case of ignoring the order to appear in court by an internal affairs body or a judge of a regional, district, city or district court, one may be brought in by the internal affairs body (police).
In addition, Part 1 of Art. 307 of CAO provides for the obligation of persons subjected to an administrative fine to pay the fine not later than fifteen days from the date of delivery of the decision to impose a fine, and if the decision is subject to appeal or a procurator’s petition, not later than fifteen days from the day of notification of dismissal of an appeal. According to Part 3 of Art. 299 of CAO, the decision on imposing an administrative penalty in the form of a fine is subject to enforcement upon the expiration of the period established by the first part of Article 307 of the said Code.
If one believes that the provisions have been violated, or his/her rights when drawing up the report and his/her arguments were not taken into account when considering the case, he/she has the right to appeal the decision in the case of an administrative offence. The procedure to appeal against a decision on an administrative offence and or to submit a procurator’s petition is regulated by Articles 287-289 of the CAO.