Let's find out what is meant by reasonable suspicion and what unscheduled measures the State Service for Food Safety and Consumer Protection can take on this basis.
The Law of Ukraine “On dstate control over dobtaining legaldFood safety informationdukti, feed, side effectsduanimal huntingdmarriage, withdOrovya and Blagopolin"animals" grants the State Service for Food and Consumer Protection broad powers, including the right to carry out unscheduled state control measures.
One of the reasons for conducting such unscheduled measures is the existence of a reasonable suspicion of non-compliance by the State Service for Food and Consumer Protection.
Let's remember the main list of state control measures that the State Service for Food and Consumer Protection can carry out within this framework Lawin:
- audit;
- sampling;
- inspection;
- physical examination;
- compliance check;
- documentary check;
- pre-slaughter and post-slaughter examination;
- laboratory research (test).
The right of territorial bodies of the State Service for Food Safety and Consumer Protection to carry out such measures unscheduled, in the event of a reasonable suspicion of non-compliance, is enshrined in Part 4 of Article 18 Lawin.
This means that the State Service for Food Safety and Consumer Protection may make an unscheduled visit not only to conduct an inspection (documentary, physical, or compliance), but also to carry out other state control measures, if there is a reasonable suspicion.
“Reasonable suspicion of non-compliance” – what is it?
No Law No. 2042-VIII, nor any other regulatory legal act contains neither the definition of "reasonable suspicion of non-compliance", nor the criteria for how such justification is established. At the same time, the legislator nevertheless provided for a list of grounds for the emergence of such suspicion.
So, by order of the Ministry of Agrarian Policy and ondUkrainian oblasts ind 03.01.2023 No. 5 The List of grounds for carrying out unscheduled measures of state control over compliance with legislation on food products, feed, animal by-products, animal health and welfare for the period of martial law was approved.
According to clause 4, clause 5 Listone of the reasons for holding unscheduled events is the emergence of a reasonable suspicion of non-compliance, based on reports received from:
- countries or their associations, international organizations,
- through the RASFF (The Rapid Alert System for Food and Feed) rapid alert system;
- healthcare institutions and individual entrepreneurs conducting business activities in medical practice, executive authorities about events and situations that pose a threat to the life, health, and sanitary and epidemiological well-being of the population;
- reference, accredited laboratories that conduct laboratory tests of samples of food products, feed, hay, straw, animal by-products, substances related to the production, circulation of food products and feed, animal health and welfare for the purposes of state control;
- official veterinarian, veterinarian, slaughterhouse employee authorized to perform the duties of an assistant state veterinary inspector.
Although the legislator does not establish criteria for the validity of such a notification, we believe that it should not be just a formality, but should contain a detailed description of the factual circumstances of the violation with mandatory reference to evidence and current legislation.
In fact, if the territorial body of the State Service for Food Safety and Consumer Protection receives a notification from any of these entities about detected inconsistencies with proper justification and evidence, this will become the basis for conducting an unscheduled state control measure.
According to clause 1 The Resolution of the Cabinet of Ministers “On the Termination of thedive drusty irondu (control) and dstate market supervisiondu in inmartial law languagesin» No. 303 ind 13.03.2022 Conducting planned/unplanned state control measures for the period of martial law has been suspended.
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During the period of martial law, unscheduled state control measures are still being carried out. possible subject to the simultaneous observance of two conditions:
During the period of martial law, such unscheduled measures are carried out exclusively on the basis of decisions of the State Service for the Protection of Food and Consumer Protection. Territorial bodies of the State Service for the Protection of Food and Consumer Protection are not authorized to issue such orders during the period of martial law. |
The requirements for an order from the State Service for Food and Consumer Protection and a referral (or certificate) for holding an unscheduled event, which is also issued in a mandatory manner, are established in Art. 7 Lawin Ukraine "On the Basic Principlesdand drusty irondu (control) in withfHey, Mr.dAryan d"Improvements".
The referral (certificate) must necessarily indicate:
number and date of the order of the State Service for Food and Consumer Protection; list of officials who will conduct the event, indicating their position and full name; start date and end date of the event; type (unscheduled) and form (inspection, audit, survey, inspection, etc.) of the event; grounds and subject of the event
information about the implementation of the previous event (type of event and time of its implementation)
Before the event begins, officials persons of the State Food and Consumer Protection Service are obliged to:
- to present certificate (referral) with all required information;
- to present an official ID card certifying an official of the State Service for Food and Consumer Protection,
provide the business entity with a copy of the certificate (referral).
If you are sure that there are no grounds for such a visit, the administrative documents contain shortcomings, errors, or are completely absent from the officials of the State Service for Food, Agriculture and Consumer Protection, you have the right to refuse admission of such officials to an unscheduled event and to appeal the order to hold such an event in court.
Failure to allow officials of the State Service for Food and Consumer Protection to enter leads to a fine.
You will be able to appeal the decision to impose such a fine and return it only after the court has issued a decision declaring the order to impose an unscheduled measure unlawful.
Therefore, the legislation does not contain clear requirements or any criteria for such a basis for conducting unscheduled measures as "the emergence of a reasonable suspicion of non-compliance."
This suspicion is usually formed on the basis of information received from subjects, the list of which is fixed in Order of the Ministry of Agrarian Policy ond 03.01.2023 No. 5, notifications of detected non-compliance.
Quite often, competent authorities do not follow the established procedure for conducting unscheduled events, taking into account the peculiarities of martial law, which is a direct violation of the law and is a basis for appealing such actions and decisions in court.
Thus, if the State Service for Food Safety and Consumer Protection nevertheless visits the enterprise with unscheduled events, before allowing officials to carry out such events, we advise you to thoroughly check the legality of their conduct, in particular:
- whether there are indeed reasonable and sufficient grounds for suspicion of non-compliance of the enterprise;
- whether the competent authority has complied with all necessary conditions for conducting such events in wartime.
If violations are detected by the regulatory body, immediately appeal such actions and decisions of the State Service for Food and Consumer Protection in court.
The original article was published in the journal Quality management.
