October 12, 2022
On October 12, 2022, the First Senate of the Constitutional Court of Ukraine adopted a Decision in the case upon the constitutional complaint of Roman Unukovych regarding the compliance of a separate provision of Article 204-3.1.2 of the Code of Ukraine on Administrative Offenses with the Constitution of Ukraine.
Having considered the case, the Court found unconstitutional the provision of Article 204-3.1.2 of the Code, namely the provision “with the confiscation of such goods” (regarding the lack of alternative to the confiscation of such goods).
The impugned provision establishes that “violation of the procedure for moving goods to or from the area of an anti-terrorist operation entails the imposition of a fine on persons who move such goods, from ten to one hundred tax-free minimum incomes of citizens with the confiscation of such goods.”
R. Unukovych argued that this type of sanction, such as a fine with confiscation of goods, has no alternative and “does not leave the court with the opportunity to reduce the measure of administrative responsibility defined by the article, to decide whether to apply confiscation partially or not at all, taking into account the specific details of each case and mitigating circumstances, and obliges the court to apply confiscation in each case of proving the guilt of a person in committing this administrative offense”.
In the Decision, the Constitutional Court of Ukraine took into account the legal positions of the Court, which are relevant for this case, as well as the practice of the European Court of Human Rights, according to which such administrative penalties as administrative arrest and significant administrative fines are commensurate with criminal punishment.
According to the Constitutional Court of Ukraine, the state (a body of state power) using appropriate measures to control the movement of goods to or from uncontrolled territories of Ukraine has a legitimate goal, because control over the movement of goods not only affects the level of the state’s defense capabilities, the possibility of deterring armed aggression, but also helps to reduce the number of other crimes/offences.
At the same time, the Court noted in the Decision that in order to achieve a legitimate goal in the case of applying restrictions on the realization of constitutional rights and freedoms, the legislative regulation of the procedure for bringing a person to legal responsibility must necessarily be based on the constitutional principle of individualization of legal responsibility.
The Constitutional Court of Ukraine noted that it follows from the content of Article 204-3.1 of the Code that the legislator did not determine a fair measure of administrative responsibility to achieve a legitimate goal, as a result of which the courts, taking into account the imperative nature of the impugned provision of the specified Article of the Code, cannot ensure the individualization of such responsibility depending on from the circumstances of the case in view of the impossibility of changing the type of administrative punishment taking into account the nature of the committed illegal act, the form of guilt, the characteristics of the person, the possibility of compensation for the damage caused, the presence of circumstances mitigating or aggravating responsibility.
As seen from the case file, a fine in the amount of ten tax-free minimum incomes of citizens with confiscation of the transferred goods – cash in the total amount of 3,500 dollars – was imposed on R. Unukovych without taking into account the evidence of the legitimacy (legality) of acquiring the transferred funds, taking into account the imperative nature of the rule on confiscation of the transferred goods.
The Constitutional Court of Ukraine believes that the application of the provision of Article 204-3.1 of the Code makes it impossible for the court to resolve the issue of the expediency of applying to the guilty person a penalty in the form of confiscation of goods and does not ensure the achievement of a fair balance between the requirements of public interests and the protection of a person’s property rights, and, therefore, this prescription of the Code allows unjustified deprivation of such a right, as it establishes that any product is subject to mandatory confiscation in any case in full, regardless of the legality of its source of origin, the purpose of further use and the negative impact of such confiscation on a person’s property.
In the Decision, the Court also emphasized that the provision of the Code, declared unconstitutional, shall cease to have effect six months from the date of adoption of this Decision by the Court.
The Verkhovna Rada of Ukraine from the date of adoption of this Decision, but no later than six months from the date of adoption of this Decision by the Constitutional Court of Ukraine, shall bring the normative regulation established by the provision of Article 204-3.1.2 of the Code, which is declared unconstitutional, into compliance with the Constitution of Ukraine and this Decision.
The Decision of the Constitutional Court of Ukraine is binding, final and cannot be appealed.