According to the norms in force in the country, after July 16, 2024, Territorial centers of recruitment and social support will be able to fully “communicate” with conscripts through postal correspondence. One of the negative consequences of such “communication” in the event that the letter from the TCC and JV does not find its addressee, may be an administrative fine.
Lawyers of the “Repeshko and Partners” Bar Association commented on the administrative fines expected by Ukrainians in this case and how to appeal them.
If the Ministry of Defense of Ukraine is unable to obtain information about a person by synchronizing with other state electronic registers, it may be prosecuted for not reporting such information. The Law of Ukraine dated May 9, 2024 amended the Code of Ukraine on Administrative Offenses in terms of increasing liability for violations of military accounting rules and legislation on defense, mobilization training, and mobilization.
Currently, according to Art. 210 of the Code of violations of military accounting rules by conscripts, conscripts, and reservists in a special period, the amount of the fine is from UAH 17,000 to UAH 25,500.
For Article 2101 According to the Code of Violations of the Law on Defense, Mobilization Training and Mobilization in a Special Period, the amount of the fine also ranges from UAH 17,000 to UAH 25,500.
The body authorized to consider the case of the specified offense is the territorial centers of staffing and social support. On behalf of the TCC and the JV, the heads of the TCC and the JV consider cases of administrative offenses and impose administrative penalties.
It is possible to find out that a person has been fined by TCC and SP from several sources.
- Directly at the Territorial Center of Equipment and Social Support during the visit.
- From the Unified State Register of Executive Proceedings for link
- In the Action application – services section, tab – executive proceedings.
But the thing is, if the citizen found out about the fine using the last two points, then we are talking about the stage of enforcement proceedings, namely that the mechanism of forced collection of funds is in effect.
So, if you know or suspect that you have been fined by the TCC and SP for violating the mobilization legislation, you need to take the following steps.
First of all, you need to get a copy of the decision on the imposition of an administrative fine. If the resolution is fresh – it is a few days old, then it is possible to get its text only in the TCC and the joint venture in which it was issued. If you learned about its existence from the last two sources indicated above, if you do not want to go to the TCC and SP, it is possible to obtain the text of the resolution by contacting the relevant department of the executive service in which this resolution is located in order to collect the amount of the fine. In the same Unified State Register of Executive Proceedings, the body that carries out compulsory collection is always indicated. Usually this is a department of the state executive service or a private executor at the debtor’s place of registration.
It should be noted that the parties to the enforcement proceedings have the right to familiarize themselves with the materials of the enforcement proceedings. In such a case, the debtor – the person being prosecuted – has the right to full access to the materials of the enforcement proceedings. Now it is easier to do than ever, because the executor provides an identifier, entering which, the debtor on the website gets full online access to the materials of the enforcement proceedings, even from his home.
Why do we need the text of the decision on bringing to administrative responsibility? The thing is that in order to appeal the said resolution, you need to have both its clear details (the date of adoption, the authority that adopted it, under which article the penalty was imposed), and to understand the grounds for imposing a fine. Without knowledge of the listed points, it is not possible to appeal the resolution!
In principle, the resolution of the TCC and SP on bringing to administrative responsibility may not be appealed by paying a fine. But there is one very important point – criminal liability. There are a number of articles in the Criminal Code of Ukraine that are also related to mobilization and conscription. Thus, Article 336 of the Criminal Code of Ukraine provides for punishment for evading conscription for military service during mobilization, for a special period, for military service upon conscription of reservists in a special period. At the same time, Article 337 of the Criminal Code of Ukraine provides punishment for evasion of a conscript, conscript, or reservist from military registration after a warning issued by the relevant head of the territorial recruitment and social support center, the heads of relevant bodies of the Security Service of Ukraine, relevant units of the Foreign Intelligence Service of Ukraine. In general, the last article clearly mentions criminal liability after a warning issued by the head of the TCC and the JV.
Therefore, the next step after the imposition of an administrative fine may be criminal liability.
We believe that the administrative fines of TCC and JV must be appealed, at least based on the fact that for this body, in such a large number of resolutions on bringing to administrative responsibility, this is something new and quite massive. And everything that is new, especially in large quantities, leads to the probability of making mistakes that can affect whether or not a person is brought to administrative responsibility. This is a purely practical remark, which has been tested in practice on the same resolutions for traffic violations or domestic violence. In a few months, errors in the adoption of resolutions will be significantly less, but the first ones have a chance to be canceled.
The resolution of the TCC and SP in the case of an administrative offense enters into force after the expiration of the period for appealing this resolution (in this case, to the court), which is ten days from the date of the resolution. We emphasize once again – from the day the decision was issued, not from the day the violator received a copy!
If the decision is received within ten days from the date of issuance, contact the court as soon as possible! In the event that the resolution is received beyond the ten-day period, even at the stage of executive proceedings, if the specified period is missed due to valid reasons, this period may be renewed by the court at the request of the person in respect of whom the resolution was issued. But for this, it is necessary to submit a separate application for extension of the deadline for appeal, in which to indicate the reasons for the validity of missing the deadline. Such a statement is submitted together with the statement of claim. If at that time you were on a business trip, or one of your family members was ill, you must attach the corresponding supporting document to the application!
Another tip – if you are collecting any evidence, do not wait to receive it, because you may miss the ten-day appeal period. We recommend that you endure it even after receiving a copy from the state or private executor – the sooner you submit the documents to cancel the resolution of the TCC and SP, the better, and the greater the chance that the court will at least grant the application for extending the appeal period, because without it, the chances of the fine being revoked does not have
Now the second main point is where to write and what to write. To appeal the fine, it is necessary to submit an administrative lawsuit to the district, city or other court of general jurisdiction at the place of registration of the conscript or at the place of residence of the TCC and SP. Since the person here has the right to choose, it is a purely practical recommendation – the further the court is from the center of the region or a large city, the simpler it is and the faster it processes cases, because the workload of a judge in a district court of a large city can amount to 300-400 cases at the same time, while there are 100-150 cases in the court of a small town.
Articles 160 – 161 of the Administrative Procedure determine how the application to the court should look and what should be attached to it and in what form. For filing an administrative claim in such a case, a court fee is paid, the amount of which for 2024 is UAH 1,211.20.
Now the main thing is what will be the justification in the lawsuit and exactly why it is necessary to cancel the resolution on the imposition of an administrative fine. Again, if you have documents that confirm your illness or the illness of a family member, a long business trip, including abroad, all this must be submitted to the court. It is also necessary to carefully study the resolution on bringing to administrative responsibility for the purpose of finding contradictions or shortcomings in it. For this, it is also necessary to familiarize yourself with the Instructions for drawing up TCC and SP protocols and filing materials on administrative offenses No. 3 dated January 1, 2024.
Also, it is necessary to remember that According to Art. 268 of the Labor Code of Ukraine, a person who is brought to administrative responsibility can: get acquainted with the case materials; provide explanations; submit evidence; make a request; to use the legal assistance of a lawyer during the consideration of the case.
The courts are of the opinion that the fact of late notification or non-notification of the person who is brought to administrative responsibility about the time and place of consideration of the administrative offense case is the basis for recognizing the resolution in the administrative offense case as illegal as issued in violation of the established procedure . Therefore, the person on whom the TCC and the SP want to impose an administrative fine must be properly summoned to the TCC and the SP specifically for consideration of the administrative case.
Judicial practice proceeds from the fact that consideration of a case on an administrative offense in the absence of a person who is brought to administrative responsibility is possible only in the case of the availability of data confirming the proper notification of such a person about the place and time of consideration of the case. Time will tell how exactly the issuing of resolutions on the imposition of administrative fines on TCCs and SPs will go, but since the fine is administrative, even when imposing it, the body must first of all be guided by the norms of the Code of Ukraine on Administrative Proceedings, and only then by the Instructions for drawing up TCCs and SP protocols and registration of materials on administrative offenses No. 3 from January 1, 2024, because the code has a higher force than the instruction.
Courts usually take the position that even the information available in the administrative case file, namely the printout of the text message sent by the TCC and SP to the conscript’s mobile number, do not give the court reasonable grounds for establishing the fact that the citizen was properly notified of the place and time consideration of the case in the established procedural manner.
However, the following should be noted. According to the Code of Ukraine on Administrative Offenses, the fine must be paid by the violator no later than fifteen days from the date of delivery of the decision on the imposition of a fine.
On the basis of the second part of Article 308 of the Code of Administrative Offenses of Ukraine, in the event of non-payment of the fine within 15 days from the date of receipt of the resolution, and in the event of an appeal against such a resolution – no later than fifteen days from the date of notification of the abandonment of the complaint without satisfaction for the purpose of enforcement of this resolution by state bodies of the executive service, the fine determined by the resolution on the case of an administrative offense will be charged in double amount.
That is, if the TCC and SP imposed a fine in the amount of UAH 20,000 on you, and you received a copy of the resolution and did not pay it within 15 days, or the court refused to cancel the resolution on imposing a fine and you also did not pay it within 15 days, even with due to lack of funds, this amount is automatically doubled and will already reach UAH 40,000.
If the resolution of the TCC and SP on imposing an administrative fine is canceled by the court, then accordingly the fine does not need to be paid, the executive proceedings that were opened are closed.
