Unexpected administrative fines: what can turn into punishment without warning (part 2)

In everyday life, situations occur that at first glance seem insignificant or purely everyday, but in the legal sphere can have unexpected consequences. The second part of our material continues the consideration of just such examples, some of which you can read in the previous article. We are talking about cases that do not fall into the typical interpretations of laws, but relate to everyone’s behavior. We do not invent artificial scenarios, we do not look for exotic exceptions – we are talking about situations that anyone can easily get into: in the yard, on the street, in a store, while traveling or in communication with strangers.

The editors of IA “FACT” have collected a new selection of situations and again turned to the lawyers of the “Repeshko and Partners” Bar Association for professional explanations: does such behavior entail responsibility. If so, which one exactly, and what should be taken into account in order not to become the object of a fine or administrative penalty. Commentaries from lawyers allow us to see exactly how the law reacts to atypical, but very real cases.

Application “Action” and driver’s license

Sometimes drivers are faced with the fact that when stopped by police officers, they provide a driver’s license in electronic form, using the “Action” relationship. However, they receive a fine for not having a driver’s license, because police officers require such a license only in a paper-plastic version.

“Action” has entered the lives of many citizens – it is very convenient and fast. There is no need to take numerous documents when leaving home – all at once in one smartphone. However, at the beginning of 2021, changes were made in Ukraine to the Code of Ukraine on Administrative Offenses (KUpAP), which relate to the presentation of driver’s licenses. They officially established the possibility of using electronic documents on a par with paper ones. We are talking about those cases when the driver is stopped by the police and he must present the documents for the vehicle.

According to the new version of part 1 of Article 126 of the Code of Criminal Procedure, driving a vehicle is considered a violation if the driver does not have with him or did not present in a way that allows the police officer to read and record data containing:

– in the driver’s license of the corresponding category,
– in the vehicle registration document,
– in the policy (agreement) of compulsory civil liability insurance for owners of land vehicles (or in the Green Card insurance certificate),
and also if the driver did not present an electronic driver’s license,
electronic vehicle registration certificate,
valid internal electronic contract of the specified type of insurance in the visual form of the insurance policy, as well as other documents provided for by law.

This means that the driver must provide the police with access to the information from the documents either in paper form or in electronic form. But it should be done in such a way that the police officer could not just see, but read and record the data. If this does not happen – for example, if the document is lost, left at home or the phone is turned off – this situation is considered a criminal offense. In this case, the driver is fined in the amount of twenty-five tax-free minimum incomes of citizens.

An electronic driver’s license and an electronic vehicle registration certificate are the same documents from the “Action” relationship. So, if the police officer who stopped you insists on a paper driver’s license, recommend that he read the relevant article of the code. If a police officer is not only persistent, but also has bad vision or does not read carefully enough, then the protocol drawn up on the above grounds can be challenged in court – in Ukraine, electronic driving documents are officially recognized on a par with paper or plastic ones.

According to p. 2.1a of the Traffic Code, the driver must have a driver’s license with him and show it at the request of the police.  Traffic regulations do not indicate in what form the same driver’s license must be. And that is why the courts side with the “offenders” and recognize that there is no criminal offense in the actions of the drivers in relation to the prepared protocols on administrative violations on the grounds of issuing a driver’s license from “Dia”.

Listening to Russian music

Music accompanies us all our lives – in joyful events and in times of sadness, accompanies us in everyday life and fills us with strength and inspiration on weekends. But lately there have been many news stories in the information space about someone listening to Russian-language music, and this is not surprising to many citizens in the fourth year of the full-scale invasion of Ukraine by Russian troops. It should be known that on June 19, 2022, the Verkhovna Rada of Ukraine adopted the Law “On Amendments to Certain Laws of Ukraine Regarding the Support of the National Musical Product and Restriction of the Public Use of the Musical Product of the Aggressor State.” According to this law:

“It is prohibited on the territory of Ukraine to publicly perform, publicly show, publicly demonstrate, publicly announce (making public, including through any means of communication such that any person can access them from any place and at any time of his own choice) phonograms, videograms and music clips that: contain a recorded performance of a musical non-dramatic work with a text performed by a singer who is or was in any period after 1991 a citizen of a state recognized by the Verkhovna Rada of Ukraine as an aggressor state (hereinafter – the aggressor state), with the exception of former citizens of the aggressor state, who are or at the time of death were citizens of Ukraine and do not have (did not have at the time of death) the citizenship of the aggressor state, and/or produced by a natural person and/or a legal entity that, at the time of their publication, was, respectively, a citizen or registered in a state that at any time recognized as an aggressor state”.

Separate changes were related to public transport and drivers who love to listen to “Vladimir Central” with a breeze. From now on, the bus driver is forbidden to turn on music, movie sounds or other sound signals in the bus cabin, except for information about the trip (sound can be transmitted to individual headphones of passengers, and to the cabin – only during irregular transportation with the consent of all passengers). At the same time, the taxi driver is prohibited from turning on music or other sound signals in the cabin without the consent of all passengers.

As for the punishment for this offense, in accordance with Article 155 of the Code of Administrative Offenses, violation of the rules of trade, performance of work and provision of services by employees of trade, public catering and services, citizens engaged in entrepreneurial activities – entails the imposition of a fine from one to ten tax-free minimum incomes of citizens (17-170 UAH). The same actions committed by a person who was subject to administrative fines for the same violations during the year – entail the imposition of a fine from five to twenty-seven non-taxable minimum incomes of citizens (85-459 UAH).

The actions of citizens in this case fall under Article 173 of the Code of Criminal Procedure – petty hooliganism, which provides:

“Minor hooliganism, i.e. swearing in public places, insulting citizens and other similar actions that violate public order and peace of citizens – entails the imposition of a fine of three to seven non-taxable minimum incomes of citizens (51-119 UAH) or community service for a period of forty to sixty hours, or corrective work for a period of one to two months with a deduction of twenty percent earnings, or administrative arrest for up to fifteen days”.

Note that due to the current situation, a draft law has been submitted to the Verkhovna Rada, which provides for an increase in fines for listening to Russian content.

At the same time, listening with headphones is not punishable – in this case, it does not affect public order and concerns only the person listening to the content. But the drivers of vehicles, from which loud Russian songs are heard, can also be prosecuted for the same petty hooliganism.

By the way, responsibility under Art. 173 of the Code of Criminal Procedure comes from the age of 16. Therefore, if the administrative protocol is drawn up for teenagers aged 16-18, the following measures of influence may be applied to them:

• an obligation to publicly or otherwise apologize;
• warning;
• reprimand or severe reprimand;
• transfer of a minor to the supervision of parents or persons who replace them, or to the supervision of a pedagogical or labor team with their consent, as well as to individual citizens at their request.

Not at all a tale about a fisherman and a fish

Fishing is a classic outlet for the male part of the population in the midst of gray everyday life. Although for some it is an additional means of livelihood or an option to diversify the everyday menu. However, few people know that many things in fishing are clearly prescribed and regulated. Yes, there are “Rules of amateur fishing”, approved by the order of the Ministry of Agrarian Policy and Food of Ukraine on September 19, 2022 No. 700.

According to these rules, an amateur fisherman is a citizen of Ukraine, a foreigner, as well as a stateless person who is in the territory of Ukraine on legal grounds and intends to or is engaged in recreational fishing. Amateur fishermen are allowed to carry out recreational fishing free of charge in the order of general use of aquatic biological resources for personal needs (without the right to sell) with fishing tools and methods of extraction (catch) not prohibited by these Rules and in the minimum sizes allowed for extraction (catch) of species of aquatic biological resources during the implementation of recreational fishing, defined Appendix 1 to these Rules, according to the rates of extraction (catch) of permitted types of aquatic bioresources per day for one amateur fisherman (hereinafter – the daily rate of catch), determined by Appendix 2 to these Rules”;

Harvesting (fishing) with the following fishing gear is prohibited:

• nets and traps of all types and designs, as well as other net fishing gear, with the exception of the “hook” design shells and pods, established by these Size Rules;
• firearms;
• pneumatic weapons, with the exception of underwater guns;
• harpoons, spurs, bows, crossbows and other sharp fishing tools, with the exception of hook fishing tools and elements of underwater guns not prohibited by these Rules;
• pressing, trap-like fishing tools;
• electrofishing systems (electric fishing rods, electroguns, electric shockers, ultrasonic devices, etc.);
• hooks, including fly rods, bottom, float, winter fishing rods, fishing rods (circles) and spinning rods of all types using artificial or natural bait, if the total number of hooks exceeds seven units per fisherman;
• single interconnected, double and triple hooks without a spinner, natural or artificial lure;
• with a seine with a diameter of more than 100 cm or a “grip” (“spider”), the size of which exceeds 1 × 1 m with a mesh mesh step of more than 10 mm for extraction (catch) of crayfish, live bait and lures;
• mechanical devices (means) for pulling nets and other net tools for harvesting (fishing) under the ice;
• mechanical, semi-mechanical means and fishing tools, including all types of trawls and seines;
• with a net (mesh) with a diameter of more than 70 cm or any other shape, with a total length of sides of more than 220 cm, with a mesh pitch of less than 8 mm for harvesting (catching) mussels, rapans and shrimps, and a mesh pitch of less than 3 mm for harvesting (catching) hamarus and moth;
• conch shells of the “hook” design with a diameter of more than 70 cm, a mesh pitch of more than 22 mm in the amount of more than one unit per fisherman;
• other fishing gear prohibited by law.

At the same time, extraction (fishing) in the following ways is prohibited:

• discoloration;
• jamming;
• with the use of explosive, poisonous, gaseous, narcotic substances;
• with the use of scuba diving and other autonomous breathing devices;
• from motor vessels with the power plant on, using more than one fishing gear per fisherman;
• construction of dams and other types of barriers that partially or completely block the channel of a fishing water body (its part) and prevent the free movement of aquatic biological resources;
• full or partial discharge of water from a fishing water body (its part);
• crayfish in the dark time of the day (after an hour after sunset and before an hour before sunrise) with the use of illumination;

Extraction (fishing) is prohibited in the following places: on spawning grounds during the spawning period, including from the shore; within the regime zones of bridges that are guarded; within the security zones of electrical networks;  in other places prohibited by law.

In addition, extraction (fishing) is prohibited during the following periods:

• in the dark hours of the day (later than an hour after sunset and earlier than an hour before sunrise) from vessels in the Black and Azov seas;
• in the dark hours of the day (later than an hour after sunset and earlier than an hour before sunrise) in internal fishing water bodies (parts thereof) within the shipping lane;
• in the autumn-winter period (from the freezing point to the melting of the ice) with fishing tools equipped with hooks, the distance from the hook to the tip of the sting exceeds 10 mm;
• during the spawning period.

At the same time, the exact terms of the spawning ban depend on the region and reservoir, so fishermen should familiarize themselves with the relevant data in Appendix 3 to the Rules of recreational fishing. Article 85 of the Code of Administrative Offenses expressly stipulates that violation of fishing rules entails a warning or the imposition of a fine on citizens from two to ten tax-free minimum incomes of citizens (34-170 UAH) and a warning.

It should be known that a gross violation of fishing rules (fishing with the use of firearms, electric current, explosive or poisonous substances, other prohibited fishing gear, industrial fishing gear by persons who do not have a fishing permit, catching aquatic living resources in amounts exceeding the established limits or the daily catch rate established by the rules of amateur and sport fishing) entails the imposition of a fine on citizens from twenty to forty non-taxable minimum incomes of citizens (340 – 680 UAH) with confiscation of tools and means of committing the offense, which are the private property of the offender, and illegally extracted aquatic living resources or without such.