The quarantine with a significant list of restrictions for citizens and business was introduced by the Cabinet of Ministers of Ukraine by the Resolution No. 211 as of March 11, 2020 “On Preventing the Spread of COVID-19 Acute Respiratory Disease Caused by the SARS-CoV-2 Coronavirus in Ukraine” (as amended). For more information regarding the nature of restrictions, please find our newsletters.
The issue whether enough or, per contra, too many restrictions have been introduced to prevent the spread of coronavirus disease in Ukraine, should be settled by experts on spread of infectious diseases. However, let us, the lawyers, enlarge upon the analysis of the legality of the introduced measures, as well as the responsibility for these measures.
The legality of introducing the quarantine restrictions in Ukraine raises many questions, which were elaborated in our newsletter.
It should be noted that similar questions regarding quarantine restrictions arise also in other countries. For example, in the Czech Republic (which was already mentioned in the newsletter ) and Romania. Thus, in Romania the Decree of the President introducing a state of emergency and restrictive measures was declared unconstitutional since the President exceeded the scope of authorities provided to him by law while delivering such a decision.
In Ukraine the main issue as regards the introduced quarantine measures is the actual limitation of rights and freedoms granted by the Constitution of Ukraine (the right to freedom of movement, the right to freedom of peaceful assembly, the right to own, use and dispose one’s property, the right to engage in entrepreneurial activity and the right to work), which was introduced by the Cabinet of Ministers of Ukraine in violation of the provisions of Article 64 of the Constitution of Ukraine in the absence of a martial law or state of emergency.
This means that restrictions were introduced not on the grounds, within the powers, and under the procedure determined by the Constitution and the laws of Ukraine, and consequently, violated the requirements of part 2 of Article 19 of the Constitution of Ukraine.
Provisions of part 2 of Article 19 of the Constitution of Ukraine regarding the requirements of compliance of public authorities and their officials with the law and the Constitution of Ukraine are not declarative, as it often seems at the first glance. Unlawful decisions, actions, or inactivity of public authorities and their officials are considered to be a ground for bringing to responsibility.
Quite often the civil law aspect of liability is mentioned in the context of responsibility for unlawful decisions, actions, or inactivity of public authorities and their officials.
According to Article 56 of the Constitution of Ukraine: “Everyone shall have the right to compensation, at the expense of the State or local government bodies, of the material and moral damage caused by unlawful decisions, actions, or inactivity of public authorities, local government bodies, their officials and officers while exercising their powers”.
The current situation with consequences for citizens and business resulted from the illegal introduction of quarantine restrictions, obviously, may be considered either in the angle of general provisions on compensation of the damage caused by the public authority and its officials (Article 56 of the Constitution of Ukraine and Articles 1173-1174 of the Civil Code of Ukraine), or special provisions on compensation of the damage due to the adoption of an unlawful regulatory legal act (Article 1175 of the Civil Code of Ukraine). The relevant situation may also be considered as a violation of international guarantees, as we have already mentioned in our newsletter .
However, following the letter of the law in the cases under consideration, civil liability provides for compensation at the expense of the state, i.e., actually, from an economic point of view, such a compensation comes from the pocket of each taxpayer.
Accordingly, since the material aspect of the liability of the official, who adopted the illegal decision, is actually becomes the burden of the taxpayers, the function of responsibility in the viewpoint of ensuring the restrain of the official from adopting illegal decisions is not performed with time.
At the same time, it would be quite interesting to think over this situation as regards the illegally introduced quarantine restrictions from the viewpoint of the criminal law aspect of personal liability of officials who adopted the relevant decision.
When it comes to taxes subject to be paid by the business, quite often there are references to Article 212 of the Criminal Code of Ukraine on tax evasion. It goes without saying that ensuring the proper and full payment of taxes by the taxpayer is important, since the tax evasion causes damage on society and the state.
However, here the other side of the “chain” should be mentioned: taxes are the state budget revenues and the ensuring of such incomings is entrusted to public authorities and their officials for the proper functioning of the state and society. Accordingly, due to improper ensuring of such budget revenues by the state, the same damage is inflicted on society. Hence, obviously, the reduction of the state budget revenues should also be a ground for bringing to criminal liability.
Under the criminal law, actions that may be a ground for bringing to criminal liability are defined in Article 211 of the Criminal Code of Ukraine:
“When the official issues a regulatory legal acts, which decrease budget revenues or increase budget expenses contrary to the law, given that budget funds in large amounts were the matter of such actions”.
“The same actions, the matter of which were budget funds in especially large amounts, or recidivated”.
So whether the adoption of the Resolution of the Cabinet of Ministers of Ukraine No. 211 as of March 11, 2020 (as amended), introducing prohibitions or significant restrictions of activity of numerous business entities in many areas, may be potentially considered as issuance of the regulatory legal act, which decreases budget revenues?
The Resolution of the Cabinet of Ministers of Ukraine No. 211 as of March 11, 2020 (as amended), which is obviously aimed at regulation of public relations, includes legal provisions, is of non-personal nature and is intended to multiple application. It means that the stated above Resolution is a regulatory legal act.
As a result of the adoption of this Resolution, the amount of taxes and fees payable was significantly decreased, and consequently – the amount of state budget revenues was also significantly decreased. Thus, according in April budget revenues in the form of taxes were decreased by 11, 6 %, that constitutes UAH 13, 64 billion.
It means that the Resolution of the Cabinet of Ministers of Ukraine No. 211 as of March 11, 2020 may be considered as the regulatory legal act, which decreases the budget revenues in especially large amounts (exceeding in 3000 times the tax-free minimum income, which is equivalent to UAH 3 153 000).
At the same time, as regards the regulatory legal act the Criminal Code of Ukraine refers to “issuance by the official”.
As defined by part3 of Article 18 of the Criminal Code of Ukraine the officials are “individuals who permanently, temporarily or under special powers exercise the functions of agents of the public authority or local government body, as well as individuals who permanently or temporarily hold positions related to the performance of organizational and administrative or administrative and economic functions in public authorities, local government bodies, in the enterprises, institutions or organizations, or exercise such functions under the special powers granted by an authorized public authority, local government body, central public administration body with the special status, authorized body or authorized official of the enterprise, institution, organization, court or by the law”. Both the Prime Minister and the ministers correspond to the definition of officials given in the Criminal Code of Ukraine, since they perform the functions of agents of the collegial body of executive power on a permanent basis.
Along with that, the concept of “issuance of a regulatory legal act” is not clearly defined neither in the Criminal Code of Ukraine nor in other laws. Therefore, we should refer to the analysis of provisions of the Law of Ukraine “On the Cabinet of Ministers of Ukraine” regarding the procedure of adoption and signing of Resolutions of the Cabinet of Ministers of Ukraine.
According to part 5 of Article 49 of the Law of Ukraine “On the Cabinet of Ministers of Ukraine”: “Acts of the Cabinet of Ministers of Ukraine shall be signed by the Prime Minister of Ukraine”.
At the same time, in accordance with part 1 of Article 51 of the Law of Ukraine “On the Cabinet of Ministers of Ukraine”: “Resolutions and decrees of the Cabinet of Ministers of Ukraine shall be issued at its meetings by voting of the majority of officials of the Cabinet of Ministers of Ukraine which are determined in accordance with Article 6 of this Law. If the draft of the decision was supported by exactly half of the officials of the Cabinet of Ministers of Ukraine and the Prime Minister of Ukraine voted in favor of this draft as well, the decision shall be considered as adopted”.
Along with that, there are general provisions of part 1 of Article 45 of the Law of Ukraine “On the Cabinet of Ministers of Ukraine”, which stipulate the following: “Members of the Cabinet of Ministers of Ukraine shall bear joint responsibility for the results of activity of the Cabinet of Ministers of Ukraine as a collegial body of executive power”.
Therefore, the adoption of such a regulatory legal act as the Resolution of the Cabinet of Ministers is executed collegially by voting of majority of ministers and the Prime Minister. Hence, the relevant individuals are those officials who are responsible for the adoption of such a regulatory legal act.
It means that there may be grounds for bringing mentioned above individuals to criminal liability followed by the punishment and imprisonment for a term of two to six years with the deprivation of the right to hold certain positions or be engaged to certain activities for a term up to three years.
However, strict construction of Article 211 of the Criminal Code of Ukraine is the following: “When the official issues a regulatory legal act”. Therefore, it is literally referred to the adoption of a regulatory legal act by sole individual.
On the one hand, under textual interpretation it may be assumed that the provisions of the Criminal Code of Ukraine do not allow to bring somebody to collegial criminal liability for issuing regulatory legal acts, which decrease budget revenues. However, practice shows that there are cases of bringing at least the heads of collegial bodies to criminal liability under Article 364 of the Criminal Code of Ukraine for decisions adopted collegially. Therefore, on the basis of analogy it may be concluded that despite the lack of direct reference to a number of officials, it is quite possible to bring ministers to liability for decisions adopted on behalf of the Government or at least the Prime Minister, who binds (signs) the resolution of the Cabinet of Ministers of Ukraine. Undoubtedly, for the purposes of determining the guilt, an individual’s will must be clearly recorded and such a will may be identified. For example, in the case of adopting a regulatory legal act by the Cabinet of Ministers of Ukraine, the will of each member of the Government may be identified by the Minutes of the meeting of the Cabinet of Ministers of Ukraine, which shall be executed pursuant to part 8 of Aricle 46 of the Law of Ukraine “On the Cabinet of Ministers of Ukraine”. Apart from that, it is possible to consider the collegiality of the adopted decision as a basis for qualifying the cumulation of criminal offenses. Thus, in the case when the Criminal Code of Ukraine does not directly determine the special qualified elements of crime for a “group of individuals”, “organized group”, the Criminal Code of Ukraine in theory and law enforcement agencies in practice often speak in terms of creating a criminal organization as a separate element of crime under Article 255 of the Criminal Code of Ukraine and accordingly qualify it as the cumulation of crimes.
The court practice under Article 211 of the Criminal Code of Ukraine is absent as such. According to the data from the Unified State Register of Court Decisions, we failed to find at least one verdict. Therefore, the issue of application of Article 211 of the Criminal Code of Ukraine to the collegially adopted regulatory legal acts is ambiguous. However, if the political situation changes, it may be possible that the law enforcement agencies elaborate an approach on application of Article 211 of the Criminal Code of Ukraine to collegial decisions as well, as it, for example, already works regarding Article 212 of the Criminal Code of Ukraine, when the supervisory boards of companies are sometimes considered as organized groups.
The adoption of the Resolution of the Cabinet of Ministers of Ukraine No. 211 as of March 11, 2020 (as amended) in the absence of martial law or state of emergency may also be considered in aspects of other articles of the Criminal Code of Ukraine. In the context of tax evasion such alternative articles are Article 358, Article 366 of the Criminal Code of Ukraine, but in the context of non-provision of tax revenues to the state budget due to the adoption of the Resolution of the Cabinet of Ministers of Ukraine No. 211 as of March 11, 2020 other alternative qualifications may be also applied.
For instance, Article 367 of the Criminal Code of Ukraine defines a neglect of official duty as follows: “the failure of an officer to perform or improper performance of his/her official duties due to negligence, which caused any significant damage to the legally protected rights, freedoms and interests of particular citizens, state or public interests, or interests of certain legal entities”.
Therefore, the adoption of such Resolution may be potentially considered as neglect of official duty under Article 367 of the Criminal Code of Ukraine, since it is quite obvious that the Resolution:
- was adopted due to improper performance of official duties by members of the Cabinet of Ministers of Ukraine, in particular, regarding the ensuring the existence of grounds under the Constitution of Ukraine for the introduction of relevant restrictions and compliance with the procedure for the introduction of such restrictions;
- caused a significant damage both to the state interests (in the form of non-receipt of taxes) and rights and interests of particular citizens and certain legal entities (cinemas, malls, restaurants, fitness centers, cafes and lots of entities of other business areas).
The situation with the introduction of quarantine restrictions may also be considered in terms of Article 206 of the Criminal Code of Ukraine “Interference to lawful economic activity”, in particular on the qualified elements of this crime stipulated in part 3 of Article as follows:
“Interference to lawful economic activity committed by an organized group or by an officer through taking advantage of his/her job position…”.
Thus, in particular, the provisions of para. 8) of part 2 of the Resolution of the Cabinet of Ministers of Ukraine with the wording “to prohibit … the work of business entities hosting visitors, in particular, public food services(restaurants, cafes, etc.), shopping and entertainment centers, other entertainment institutions, fitness centers, cultural institutions, trade and consumer services” may be in substance considered as a demand to shut down economic activity. And such a demand is illegal, since it was declared not on the grounds and in the manner stipulated by the Constitution and laws of Ukraine.
Given the significant economic implications for both the state and the certain business entities (whose activities have actually been suspended for more than 1.5 months), the question of the significance of the damage should not even be considered apart from that, as it is obvious that the damage from the introduced restrictions under the Resolution of the Cabinet of Ministers of Ukraine No. 211 as of March 11, 2020 exceeds UAH 525,500 (large damage for the purposes of qualification under Article 206 of the Criminal Code of Ukraine).
Accordingly, there may be grounds for bringing to liability under alternative articles with imprisonment for a term of six to ten years with deprivation of the right to hold certain positions or engage in certain activities for a term of three to five years or without such and with confiscation of property (under Article 206 of the Criminal Code of Ukraine) or imprisonment for a term of two to five years with deprivation of the right to hold certain positions or engage in certain activities up to three years and with a fine of two hundred and fifty to seven hundred and fifty non-taxable minimum incomes or without such (under Article 367 of the Criminal Code of Ukraine).
Summarizing the above, we see that the quarantine restrictions introduced by the Resolution of the Cabinet of Ministers No. 211 as of March 11, 2020 (as amended) in violation of the Constitution and laws of Ukraine, which resulted in significant damages incurred both by the state and the business, may cause the grounds for bringing to criminal liability the relevant officials who adopted this decision.
To summarize the above please note, that not only the introduction of restrictions, but also their actual implementation at all levels may be considered as a ground for bringing to criminal liability. Therefore, the provisions of Article 60 of the Constitution of Ukraine are worth to be recalled:
“No one shall be obliged to execute decrees or orders that are сlearly criminal.
Issuance and execution of clearly criminal decree or order shall lead to legal liability”.
The above commentary presents the general statement for information purposes only and as such may not be practically used in specific cases without professional advice.