Liability for violation of curfew
In connection with the military aggression of the Russian Federation against Ukraine, martial law has been introduced in Ukraine and executive authorities have been instructed to introduce and carry out the measures and powers provided for by the Law of Ukraine "On the Legal Regime of Martial Law" necessary to ensure the defense of Ukraine, the protection of the safety of the population and the interests of the state.
The procedure for implementing measures during the introduction of a curfew and the establishment of a special light masking regime in certain areas where martial law has been imposed was approved by Resolution No. 573 of the Cabinet of Ministers of Ukraine dated July 8, 2020 (hereinafter referred to as the Procedure).
Clause 5 of the Procedure establishes that the curfew and the establishment of a special light-masking regime are introduced by issuing an order by the military command or the military administration (in the case of its formation), which is brought to the attention of the military administrations (in the case of their formation) or the Defense Council of the Autonomous Republic of Crimea, oblasts, cities of Kyiv and Sevastopol, the Council of Ministers of the Autonomous Republic of Crimea, local executive bodies, local self-government bodies, the Ministry of Economy, the Ministry of Social Policy, the Ministry of Infrastructure , the Ministry of Health, the Ministry of Foreign Affairs, JSC "Ukrainian Railway", the relevant bodies of the State Special Transit Service , the National Guard, the State Border Service, the National Police, the Security Service of Ukraine , the Federal Security Service , State Migration Service, State Emergency Service, military commands, formations, military units of the Armed Forces and other military formations formed in accordance with the laws of Ukraine.
At the same time, in accordance with the second paragraph of Clause 8 of the Order, in the territory where the curfew has been introduced, it is prohibited to stay on the streets and other public places during the specified period of the day for persons without issued passes, as well as the movement of vehicles.
It is allowed to stay during a certain period of the day on the streets and in other public places, where a curfew has been introduced, without issued passes to persons and the movement of vehicles of the Armed Forces, the State Special Transport Service, the National Guard , the State Border Service , the National Police, the SBU, the State Fiscal Service, the State Migration Service, the State Emergency Service, which are involved before the implementation of measures during the introduction of the curfew, to vehicles of specialized purpose that perform an urgent official task, provided that special light signaling devices are turned on, as well as to lawyers appointed by regional/interregional centers for the provision of free legal aid to provide free secondary legal aid to detainees in according to the procedure established by the Criminal Procedure Code of Ukraine and the Code of Ukraine on Administrative Offenses, to persons whose arrival time falls on a certain period of the day, in particular, on their own means of transport.
However, the Code of Ukraine on Administrative Offenses does not establish liability for violation of the curfew and special light masking regime during martial law.
In order to eliminate the gap in the legislation, on December 9, 2023, the Verkhovna Rada of Ukraine, for the 2nd year of the full-scale invasion, adopted as a basis draft law No. 3510-IX "On Amendments to the Code of Ukraine on Administrative Offenses and Other Laws on Establishing Administrative Liability for Violation of Requirements or Failure to Fulfill Certain Measures" of the legal regime of martial law" (hereinafter - Draft Law ).
According to the authors, the purpose of the Draft Law is to ensure public (public) order during martial law, as well as the implementation of the powers of the police, in cooperation with military administrations, in ensuring and implementing measures of the legal regime of martial law.
The draft law provides for the addition of Article 210-2 to the Code of Ukraine on Administrative Offenses , according to which for violation of the curfew (prohibition of being on the streets and other public places during a certain period of the day without specially issued passes and certificates) liability will be imposed in the form of a fine from 8 500 to 17,000 hryvnias. In the event of a repeat offense, the fine will be from 17,000 to 34,000 hryvnias.
For a violation by a business entity of the special light-masking regime or work regime during martial law established in the relevant territory , a fine in the amount of 51,000 to 102,000 hryvnias is provided for the head of the business entity, a natural person-entrepreneur. If such actions were committed repeatedly, the fine will be from 170,000 to 340,000 hryvnias.
It is planned to entrust the consideration of cases of such administrative offenses to the district, district in the city, city or city-district courts.
Moreover, in case of violation of the requirements or non-fulfillment of the measures of the legal regime of martial law, the internal affairs bodies are allowed to carry out administrative detention.
The bill also provides for military administrations to be empowered to establish or temporarily change the mode of operation of business entities of all forms of ownership, except state ownership.
Taking into account the above, the adoption of the Draft Law is important and necessary for modern realities, since the lack of responsibility for violation of the curfew, special light-masking regime, or work regime during martial law leads to the nullification of the introduction of such measures, which in turn undermines the defense capability of the state, public order and the safety of the population as a whole.
Senior Lawyer
Oleh Lyhin
