After the introduction of martial law, the resolution of the Cabinet of Ministers of Ukraine No. 303 dated 13.03.2022 introduced a moratorium on scheduled and unscheduled inspections of control bodies for the period of martial law.
At the same time, the resolution provided for some exceptions that allowed the control bodies to conduct unscheduled inspections.
Over the past two years, a number of regulatory and legal acts have been adopted, which allow unscheduled inspections for specific reasons, in particular, by such bodies as the State Production and Consumer Service, DIAM, State Labor.
Regarding unscheduled inspections by specific control bodies
State Food and Consumer Service
The State Production and Consumer Service cannot conduct scheduled inspections, but it can conduct unscheduled inspections in terms of compliance with sanitary legislation, sanitary and epidemic well-being of the population; in the field of legislation on the prevention and reduction of the use of tobacco products, as well as verification of compliance with the legislation on food products.
The State Production and Consumer Service can carry out such checks only if there is a certain basis for conducting checks, for example, for checking compliance with the legislation on food products, there must be the following grounds:
- a written statement of the business entity to carry out an inspection at its request;
- mandate of the Prime Minister of Ukraine to check business entities in the relevant field in connection with detected systemic violations and/or the occurrence of an event that has a significant negative impact on other people, the protection of the natural environment, and the security of the state;
- an application by an individual about a violation that caused harm to him or the state security, with the addition of documents or their copies confirming such violations (if available);
- verification of the business entity's compliance with orders to eliminate violations issued as a result of the preliminary inspection;
- in case of detection of non-compliance or reasonable suspicion of non-compliance, on the basis of notifications received from:
1) countries, international organizations, in particular, messages received through the rapid notification system (RASFF);
2) health care institutions, business entities that conduct medical practice and state bodies about events and situations that pose a threat to life and health, sanitary and epidemic well-being of the population;
3) accredited laboratories, which are authorized to carry out for the purposes of state control laboratory research (tests) of selected samples of food products and any substances related to the production and/or circulation of food products, in the event that the results of laboratory research (tests) testify to the non-compliance of such substances with the established requirements;
4) an official veterinarian, authorized veterinarian, slaughterhouse worker - assistant state veterinary inspector about detected signs of violation by the market operator of the legislation on food products, feed, animal health and welfare.
Based on the results of an unplanned event, the State Production and Consumer Service can issue an order on the need to eliminate the detected violations, apply a fine and even temporarily suspend the work of an enterprise or a catering establishment.
It is necessary to pay attention to the basis for the inspection, which must be specified in the certificate (direction) on the inspection.
Before the start of the measure, inspectors are obliged to show the head of the enterprise a certificate (referral) about conducting an inspection and an official certificate and provide a copy of the certificate (referral).
The head of the enterprise has the right to prevent officials of the state supervision body from carrying out the event if they have not presented these documents.
State Labor
The Law of Ukraine "On the Organization of Labor Relations in the Conditions of Martial Law" during the period of martial law allows unscheduled inspections to be carried out in compliance with labor legislation, as well as on issues of identifying unregistered labor relations and the legality of termination of employment contracts.
Unscheduled inspections are carried out on the following grounds:
- an application by a natural person about a violation that caused damage to him, the surrounding natural environment, or the security of the state, with the addition of documents or their copies confirming such violations (if available).
In this case, the unscheduled event is carried out by the territorial body of the State Labor Service upon the approval of the central body of the State Labor Service.
- mandate of the Prime Minister of Ukraine to check business entities in the relevant field in connection with detected systemic violations and/or the occurrence of an event that has a significant negative impact on other people, the protection of the natural environment, and the security of the state;
- the occurrence of an accident, fire, death of the victim as a result of an accident or occupational disease, which was connected with the activities of the enterprise;
- appeals by officials of local self-government bodies about the violation by the business entity of the requirements of legislation in cases where the right to submit such an appeal is provided for by law;
- at the request of the Kyiv city military administration or regional military administration;
- in connection with the failure of the business entity to comply with orders to eliminate violations of legal requirements issued after May 1, 2022.
During the period of martial law, in the case of compliance in full and within the prescribed period of prescriptions on the elimination of violations discovered during unscheduled inspections, the fines provided for in Article 265 of the Labor Code of Ukraine shall not be applied.
That is, in case of detection of violations, the labor inspector must hand the employer an order to eliminate them and set a deadline for this, but he cannot immediately apply a fine. If the employer ignores legal requirements to eliminate violations, the inspector has the right to hold such employer accountable for refusing to comply with the order.
State Inspection of Architecture and Urban Planning of Ukraine (DIAM)
The Ministry of Development of Communities, Territories and Infrastructure of Ukraine issued Order No. 424 dated 19.05.2023 "On conducting unscheduled measures of state architectural and construction control (supervision) during the period of martial law."
The order provides for the following procedure for checking the DIAM:
- Receiving requests from individuals or legal entities, state architectural and construction control bodies, law enforcement agencies regarding the need for unscheduled inspections.
- Within 5 working days from the date of receipt of the appeal, the Ministry sends a request with relevant materials to DIAM to provide a written justification for the presence of a threat that has a negative impact on the rights, legitimate interests, life and health of a person, protection of the natural environment, ensuring the security of the state and the need to hold a corresponding unplanned event or the absence of grounds for it.
- An order of the Ministry of Infrastructure is issued to approve the implementation of unplanned measures of state architectural and construction control (supervision).
After that, DIAM issues an order "On conducting an unscheduled inspection."
At the same time, judicial practice shows that before the adoption of the above order, unscheduled events were prohibited. In particular, conducting an inspection on the basis of a letter from the Ministry of Development of Communities, Territories and Infrastructure of Ukraine is not legal, because it cannot be considered a decision of the central executive body within the meaning of paragraph 2 of Resolution No. 303, neither in form nor in content.
State Emergency Service
There is no corresponding decision of the relevant ministry regarding the possibility of unscheduled inspections.
That is, unscheduled inspections of the State Emergency Service are currently prohibited and are not carried out. At the same time, the Ministry of Economy and the State Emergency Service conclude that conducting unscheduled inspections based on the submission of a written application by the business entity to the relevant body to carry out such an inspection at its request does not contradict the Resolution."
State Coinspection
There is no corresponding decision of the relevant ministry regarding the possibility of unscheduled inspections.
At the same time, control measures in the field of environmental protection are carried out, protocols on administrative offenses are imposed, claims for damages are presented, and lawsuits are filed.
In particular, regarding the following offenses: illegal cutting of trees; clogging of forestry lands with production waste; emissions of pollutants into the atmosphere without the appropriate permit; arbitrary use of subsoil in the absence of a special permit, etc.
That is, the nature of offenses is such that for their establishment it is not necessary to carry out checks on the territory of some enterprise, rather, it is established during the monitoring of the environment (open and accessible).
Also, a single case law shows that the bodies of the State Inspectorate conducted inspections on the basis of an individual order of the Ministry of Environmental Protection and Natural Resources of Ukraine "On conducting an unscheduled measure of state supervision (control)" (i.e. issued in connection with the inspection of a specific enterprise), and the court recognized such an inspection as legal.
As you can see, despite the moratorium, some regulatory bodies can still conduct unscheduled inspections. Therefore, the business still needs to be ready for possible visits of the inspector, to learn the rights and obligations'teams of inspectors, prepare employees for inspections, and put in order all the necessary permit documents.
