According to the data of the Unified State Register of Court Decisions, in 2017 the courts reviewed approx 1500 cases on corruption administrative offenses.
According to the results of consideration of corruption protocols, courts of first instance mostly made decisions in favor of the persons for whom they were drawn up. These include court decisions on the absence of an administrative offense in the actions of the composition and exemption from administrative responsibility due to insignificance
(read more about dismissal due to insignificance in the article "Corruption Administrative Offense: How to Limit Oral Remarks?").
KUPAP and prosecutor's office reform
All court proceedings concerning corruption cases take place with the obligatory participation of the prosecutor. According to the long-standing and unchanging tradition of all state bodies, decisions not in their favor must be appealed. In 2017, prosecutors appealed 200 rulings of the court of first instance, ie every 7 rulings in the case of corruption administrative offenses.
However, back in 2014, as part of the reform of the prosecutor's office, the legislator changed the powers of the prosecutor. The amendments to the Code of Ukraine on Administrative Offenses (hereinafter - the Code of Administrative Offenses) also concerned the powers of the prosecutor to appeal the decision of the court of first instance on a corruption administrative offense.
The Code of Administrative Offenses provides that the prosecutor, deputy prosecutor, supervising the observance and proper application of laws in administrative proceedings, among other things, has the right to appeal the decision and decision on the complaint in the case of an administrative offense.
The Code of Administrative Offenses clearly defines the range of persons who may appeal the decision in the case of an administrative offense: it is exclusively 1) the person in respect of whom the decision was made, his legal representative, defense counsel; 2) the victim, his representative; 3) the prosecutor in the cases provided by the Code of Administrative Offenses.
What powers of the prosecutor remain?
The prosecutor supervises the observance of laws in the application of measures of influence for administrative offenses by exercising the powers to supervise the observance of laws in the application of coercive measures related to the restriction of personal freedom of citizens.
Thus, the prosecutor still retains the authority to monitor compliance with the law in the application of coercive measures related to the restriction of personal liberty of citizens.
For example, a court decision on the administrative arrest of a person for petty hooliganism is considered a decision related to the restriction of personal freedom of citizens. If the prosecutor considers that the court decision is illegal, he has the right to appeal it.
Is the case of a corruption administrative offense related to the restriction of a citizen's personal freedom? No, as the sanctions of the relevant articles of the Code of Administrative Offenses do not provide for liability in the form of administrative arrest. In this case, the prosecutor does not supervise compliance with the law and has no right to appeal against a decision on a corruption administrative offense.
What to do if the appellate court has opened proceedings on the prosecutor's appeal?
Despite the lack of authority, prosecutors still file appeals, as evidenced by case law (for example: the decision of the Court of Appeal of the Nikolaev area from 03/01/2018, decision of the Court of Appeal of Vinnytsia region from 02/28/2018, the decision of the Court of Appeal of the Zaporozhye region from 02/22/2018). Prosecutors mainly challenge decisions on the absence of an administrative offense, exemption from administrative liability due to insignificance and the application of administrative penalties in the minimum amounts.
In most cases, the courts of appeal make decisions to return the appeal to the prosecutor, explaining the lack of authority to appeal. However, there are exception when the appellate court opens proceedings and conducts consideration on the prosecutor's appeal.
In this case, it is necessary to prepare an objection to the prosecutor's appeal. In objections it is necessary to substantiate that: 1) the prosecutor has the right to appeal against the decision of the court of first instance only during supervision of observance of laws at application of the measures of coercive character connected with restriction of personal freedom of citizens; 2) the case of a corruption administrative offense is not related to the restriction of personal freedom of a citizen, which deprives the prosecutor of the right to appeal.
Ps The prosecutor also may not appeal the decisions of the court of first instance under other articles of the Code of Administrative Offenses, if their sanctions do not provide for liability in the form of administrative arrest. Thus, restrictions apply not only to "corrupt" articles.