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From 1 July, drunk driving became a criminal offense. The law published on July 3 did not change this

07.07.2020
Prevention of corruption /
Strategy, legislation and comments

Event

On July 3, Law No. 720-IX “On Amendments to Certain Legislative Acts of Ukraine in Connection with the Adoption of the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine Concerning Simplification of Pre-Trial Investigation of Certain Categories of Criminal Offenses” (hereinafter – the Law No. 720 ) was published following its adoption on June 17.

In particular, this law (paragraph 117), amended the Law No. 2617-VIII "On Amendments to Certain Legislative Acts of Ukraine on Simplification of Pre-trial Investigation of Certain Categories of Criminal Offenses" of November 18, 2018 (hereinafter – Law No. 2617), which in turn amended the Criminal Code (CC), Criminal Procedure Code (CPC) of Ukraine and the Code of Ukraine on Administrative Offenses (СUAO). Among other things, Law No. 2617 recognizes the following actions as criminal offenses:

1) driving the vehicle under the influence of alcohol, drugs or other intoxicants or under the influence of medicines that reduce attention and speed of reaction,

2) transfer of control of the vehicle to a person who is in a state of such intoxication or under the influence of such drugs,

3) refusal of the person driving the vehicle to pass a medical examination for intoxication or the use appropriate medicines,

4) use by the driver of a vehicle after an accident with his/her participation of alcohol, drugs or medicines made on their basis (except for those that are part of the officially approved first aid kit or prescribed by a medical professional),

5) the same (paragraph 4) – after the vehicle has been stopped at the request of a police officer, before the authorized person conducts a medical examination to establish the condition of alcohol, drugs or other intoxication or the use of medicines.

The same Law sets out a new version of Article 130 of the CUAO, which excludes administrative liability for driving a vehicle in the state of intoxication and other relevant actions.

Introduction of these amendments is indicated in sub-paragraphs 2–4, 7, 171 of paragraph 1 of part I of the Law No. 2617.

According to Law No. 720, these items are excluded from Law No. 2617.

Law No. 2617 entered into force on July 1 this year. From that day, Article 286-1 "Driving under the influence of alcohol, drugs or other intoxicants or under the influence of medicines that reduce attention and speed of reaction" became part of the "body" of the Criminal Code, and Article 130 of the CUAO retained responsibility for driving intoxicated only in relation to river, sea and small vessels.

Law No. 720, as stated in its section II, was to enter into force "from the date of entry into force of the Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine on Simplification of Pre-trial Investigation of Certain Categories of Criminal Offenses" of November 22, 2018 No. 2617-VII". However, it was published in the newspaper "Voice of Ukraine" only on July 3, 2020, i.e. after the entry into force of Law No. 2617.

CPLR assessment

According to Articles 57 and 94 of the Constitution of Ukraine, "laws … defining the rights and obligations of citizens, not brought to the attention of the population in the manner prescribed by law, are invalid", "a law shall enter into force ten days after the date of its official promulgation, unless otherwise provided by this law, but not earlier than the day of its publication.". Based on these provisions of the Constitution of Ukraine, Law No. 720 entered into force only on July 3 this year.

In accordance with parts 2, 3 and 6 of the CC, the laws on criminal liability adopted after the entry into force of this Code shall be included in it after their entry into force; criminal illegality of the action, as well as its punishment and other criminal consequences are determined only by this Code; amendments to the legislation on criminal liability may be made only by laws amending this Code and/or to the criminal procedure legislation, and/or to the legislation on administrative offenses. The same is stated in Article 2 of the CUAO: amendments to the legislation on administrative offenses may be made only by laws amending this Code and other laws establishing administrative liability and/or to the legislation on criminal liability and/or to criminal procedural legislation.

Thus, Law No. 720 did not abolish the criminal penalty for driving in the state of intoxication and did not restore administrative liability for these actions, as it did not amend the CC and the CUAO directly in this part.

Parliament passed Law No.720 shortly before the criminalization of this offense, but the amendments to the CC and the CUAO under Law № 2617 came into force before the publication of Law No. 720, which was supposed to repeal these changes. However, with the entry into force of Law No. 2617 on July 1, the amendments were included in the CC and the CUAO, and Law No. 2617 expired. Therefore, amendments to this law in order to repeal the norms of the CC and the CUAO, which have already entered into force, have no legal consequences: the text of the CC and the CUAO in this part was not changed by Law No. 720.

Now the Verkhovna Rada can restore administrative responsibility for drunk driving and other relevant actions only by amending the CC and the CUAO.

Instead, the Ministry of Internal Affairs of Ukraine and the National Police of Ukraine should provide the police with by-laws and the necessary training for police officers as soon as possible so that the current legislation on criminal offenses is properly implemented.