Legality of bringing to administrative responsibility for an offense under Art. 130 Code of Ukraine on Administrative Offenses: retrospective analysis
Abstract
The provisions of a number of legislative acts have been analyzed in detail, as a result of which driving under the influence of alcohol, drugs or other intoxicants or under the influence of drugs that reduce attention and speed of reaction is recognized as not an administrative but a criminal offense. Some intermediate conclusions have been made. Driving under the influence of alcohol, drugs or other intoxicants or under the influence of drugs that reduce attention and speed of reaction, in the period from July 1, 2020 to March 17, 2021: 1) was recognized not as an administrative offense, but as a criminal offense; 2) detection, termination and documentation of such a criminal offense was carried out mainly by patrol police officers, and not by investigators, as required by current criminal procedure legislation; 3) a report on an administrative offense and other administrative-procedural documents were drawn up upon the fact of committing a criminal offense; 4) the prosecution of a person did not take place as a result of a pre-trial investigation, but within the framework of proceedings in cases of administrative offenses.
It is proved that the above facts contradict the content of the principle of legality, in particular, "ignored" the rule of compliance with current legislation, including the rules of criminal procedure, which is the main component of the content of the principle of legality. It is noted that the actions of the police in identifying persons driving under the influence of alcohol, drugs or other intoxicants or under the influence of drugs that reduce attention and speed of reaction, were directed at a specific individual, so we should talk about violations of the rights and the freedoms of citizens with regard to the unlawful application of coercive measures and illegal prosecution.
It was stated that the clarification provided in this regard by the Committee on Law Enforcement of the Verkhovna Rada of Ukraine is neither a source of law nor a normative legal act and is not binding, but instead serves a recommendatory function, therefore, the involvement of persons for committing a specific criminal offense under the procedure of proceedings on administrative offenses has no legal grounds.
Downloads
References
Sopilnyk L.I., 2012. Theory and practice of administrative and legal regulation of road safety in Ukraine [Teoriia ta praktyka administratyvno-pravovoho rehuliuvannia orhanizatsii bezpeky dorozhnoho rukhu v Ukraini]. Abstract of Ph.D. dissertation. Kharkiv National University of Internal Affairs.
Kuterha M.V., 2016. Ensuring road safety by administrative and legal means [Zabezpechennia bezpeky dorozhnoho rukhu administratyvno-pravovymy zasobamy]. Abstract of Ph.D. dissertation. Interregional Academy of Personnel Management.
Burbelo B.Yu., 2011. Organizational and legal principles of interaction of road safety entities [Orhanizatsiino-pravovi zasady vzaiemodii subiektiv zabezpechennia bezpeky dorozhnoho rukhu]. Abstract of Ph.D. dissertation. Dnipropetrovsk State University of Internal Affairs.
Husarov S.M., 2002. Administrative and legal principles of management activities of the State Automobile Inspectorate of Ukraine to ensure road safety [Administratyvno-pravovi zasady upravlinskoi diialnosti derzhavnoi avtomobilnoi inspektsii Ukrainy shchodo zabezpechennia bezpeky dorozhnoho rukhu]. Abstract of Ph.D. dissertation. National University of Internal Affairs.
Mykytiuk M.A., 2008. Powers of the State Automobile Inspectorate of the Ministry of Internal Affairs of Ukraine: problems of theory and practice of implementation in the field of road safety [Vladni povnovazhennia Derzhavnoi avtomobilnoi inspektsii Ministerstva vnutrishnikh sprav Ukrainy: problemy teorii ta praktyky realizatsii u sferi zabezpechennia bezpeky dorozhnoho rukhu]. Abstract of Ph.D. dissertation. Lviv State University of Internal Affairs.
Salmanova O.Yu., 2002. Administrative and legal means of ensuring traffic safety by the police [Administratyvno-pravovi zasoby zabezpechennia militsiieiu bezpeky dorozhnoho rukhu]. Abstract of Ph.D. dissertation. National University of Internal Affairs.
Husieva Ye.I., 2018. Administrative and legal regulation of citizen participation in road safety [Administratyvno-pravove rehuliuvannia uchasti hromadian u zabezpechenni bezpeky dorozhnoho rukhu]. Abstract of Ph.D. dissertation. Zaporizhzhia National University.
Kravchuk M.V., 2002. Theory of state and law. Problems of the theory of state and law [Teoriia derzhavy i prava. Problemy teorii derzhavy i prava]. Ternopil: Kart-blansh.
Ostapenko O.I., 2006. Administrative activities [Administratyvna diialnist]. Lviv: LvDUVS.
Pochanska O.S., 2020. Content and correlation of legal principles aimed at ensuring and protecting the rights and freedoms of citizens sentenced to imprisonment in Ukraine [Zmist i spivvidnoshennia pravovykh pryntsypiv, spriamovanykh na zabezpechennia ta zakhyst prav i svobod hromadian, zasudzhenykh do pozbavlennia voli v Ukraini]. Êvropejsʹkì perspektivi – European Perspectives, No. 3, pp. 130-142.
Yevropina L.Yu., 2016. The legality as a fundamental principle prosecutorial activities [Zakonnist yak fundamentalna zasada prokurorskoi diialnosti]. Vìsnik Nacìonalʹnoï akademìï prokuraturi Ukraïni – Journal of the National Prosecution Academy of Ukraine, No. 4, pp. 24-29.
Skakun O.F., 2010. Theory of law and the state [Teoriia prava i derzhavy]. Kyiv: Alerta.
Koziubra M.I., 2015. General theory of law [Zahalna teoriia prava]. Kyiv: Vaite.
Copyright (c) 2021 K. O. Chyshko
This work is licensed under a Creative Commons Attribution 4.0 International License.
