The newspaper "Voice of Ukraine" of February 9, 2021 - the publication of the Verkhovna Rada of Ukraine - published an article of the People's Deputy of Ukraine V-VI convocations, corresponding member of the National Academy of Legal Sciences of Ukraine, Doctor of Law, Professor, Honored Lawyer of Ukraine, Colonel-General of Militia Serhii Husarov "Is there a legal responsibility in Ukraine for drunk driving?". We suggest to get acquainted with the publication.

Is there a legal responsibility in Ukraine for drunk driving?

Unfortunately, driving while intoxicated is quite common in Ukraine.

Last year, patrol police identified nearly 130,000 people driving while using alcohol or drugs. During the same period, 4,522 traffic accidents occurred through the fault of drunk drivers, as a result of which 103 people died and 1,554 were injured.

Taking into consideration the danger and public resonance of this violation, the lawmakers have repeatedly increased responsibility for it. The most radical decision was made by the Verkhovna Rada of the eighth convocation - the Law of Ukraine № 2617-VIII, adopted on November 22, 2018, established criminal liability for driving under the influence of alcohol. This law supplemented the Criminal Code with Article 286-1 of the relevant content, and Article 130 of the Code of Administrative Offenses of Ukraine, which previously established liability for this violation, was set out in a new wording. It now provided the responsibility for driving while intoxicated only by boats, motorboats, etc. It should be noted that a number of valid objections of the Main Scientific and Expert Department of the Verkhovna Rada were ignored.

But the legislators did not take into account that now each detected fact of drunk driving will be investigated with a visit to the scene, drawing up a report on the scene and many other procedural documents. A small police inquiry service would not be able to cope with this task, moreover, it would not have time to investigate the facts of other criminal offenses.

The Verkhovna Rada of the ninth convocation tried to rectify the situation. The Law of Ukraine of June 16, 2020 № 720-IX removed from the law № 2617-VIII a new version of Article 130 of the Code of Administrative Offenses and Article 286-1 of the Criminal Code of Ukraine. But it did not happen as desired.

Law № 2617-VIII came into force on July 1 last year, abolishing the norm on administrative liability for drunk driving by amending the Criminal Code and the Code of Ukraine on Administrative Offenses. Two days later, Law 20 720-IX came into force, but without any consequences, as it provided amendments not to the criminal and administrative legislation, but only to the law mentioned. Since then and until today, the Code of Ukraine on Administrative Offenses does not provide liability of persons who drove while intoxicated.

The courts and the police needed clarification from the authorities on how to counter such socially dangerous actions. Such explanations were given by the Criminal Court of Cassation of the Supreme Court. The essence of them is that the responsibility under Art. 286-1 of the Criminal Code to the persons who drove vehicles in a state of intoxication before the first of July 2020, cannot be applied, and they are brought to administrative responsibility according to Art. 130. But this article is now only about those who operate boats, motor boats, etc.! The Verkhovna Rada Committee also gave its explanations, believing that from July 3, 2020 (date of entry into force of Law № 720-IX) Art. 130 of the Code of Administrative Offenses should be applied in the wording it had before the adoption of the law № 2617-VIII.

Despite these clarifications, the law practice was going on in two ways. Some courts close proceedings on the fact of driving while intoxicated in the absence of a rule of law providing administrative liability for this violation, others impose administrative penalties for driving while intoxicated. After all, Law № 720-IX does not contain instructions on the continuation of the previous version of Article 130 of the Code of Administrative Offenses in relation to previously committed administrative offenses. In view of this, the above position of the Criminal Court of Cassation cannot be considered impeccable, not to mention that the explanations of the Verkhovna Rada Committee have no legal force.

The actions of law enforcement agencies, both the police and the courts, must be based solely on the requirements of the law. Legislative negligence has led to the issue of liability for drunk driving outside the legal field. Therefore, if from July 1, 2020 the administrative legislation of Ukraine does not provide liability for driving while intoxicated, and any other legal act does not specifically provide the continuation of the previous version of Article 130 of the Code of Administrative Offenses, then from on July 1, 2020 the validity of attracting persons to the administrative liability for such illegal actions is dubious.

The Verkhovna Rada of Ukraine may restore administrative liability for drunk driving and other relevant actions only by amending the Criminal Code and the Code of Administrative Offenses. A similar opinion is shared by the Association for the Development of Judicial Self-Government of Ukraine, which on July 23, 2020 appealed to the Chairman of the Verkhovna Rada of Ukraine to bring the provisions of the Criminal Code of Ukraine and the Code of Administrative Offenses into conformity.

Thus, at this time, individuals who have committed and are committing a very dangerous illegal act, received a loophole in order to avoid liability. The ability of law enforcement to ensure the inevitability of punishment as the most effective way to prevent offenses has been significantly undermined. This endangers the lives and health of law-abiding citizens and road safety. The educational process in educational institutions where law enforcement officers are trained suffers, as teachers cannot give sound recommendations for action in certain circumstances to which this article is devoted. Only the Verkhovna Rada of Ukraine can rectify the situation, but the process of making the relevant decision is unjustifiably delayed.

The author of this article has been dealing with the problem of road safety for many years, worked as a People's Deputy in the Verkhovna Rada Committee on Legislative Support of Law Enforcement Activities and the Committee on Legal Policy. And he could not help but ask the question: if there is a serious problem that is known to judges, police, and finally, the Verkhovna Rada, why so far the issue is not included in the agenda of the Council? I believe that further delay is unacceptable.

Serhii Husarov, People’s Deputy of Ukraine of the fifth and sixth convocations, Doctor of Law, Colonel-General of Militia.

http://www.golos.com.ua/article/341959