New draft law on transfer pricing fines: the amount decreases, the risks increase
13 January 11:28
In the first reading, the Verkhovna Rada passed draft law No. 12093, according to which a person liable for military service who fails to appear at a military registration and enlistment office to update his or her military records or evades mobilization will pay only a 50% fine for the violation if he or she meets the ten-day deadline. However, the draft law proposes a number of other innovations that are unlikely to appeal to Ukrainians who avoid visiting the MCC and JVs. Komersant ukrainskyi analyzed the hidden pitfalls of the draft law.
Fines will be imposed in a new way
First, the draft law expands the ability of TP and JV managers to impose a fine in absentia without drawing up a protocol. Article 258 (Cases when a protocol on administrative offense is not drawn up) of the Code of Administrative Offenses has been amended to provide that if the summons of a transfer company is returned with marks of non-delivery or refusal to receive, this becomes the basis for issuing a fine without drawing up a protocol.
Secondly, in case of non-payment of the fine by the person who committed the offense under Articles 210 (Violation of military registration rules by conscripts, persons liable for military service, reservists) and 210-1 (Violation of legislation on defense, mobilization training and mobilization) of the Code of Administrative Offenses within 30 days from the date of entry into force of the resolution on imposition of an administrative penalty, such resolution is subject to enforcement.
Thirdly, Article 279 (Procedure for Consideration of an Administrative Offense Case) will be amended to provide that the offender must appear in person at the TCC and JV, plead guilty and write a statement. In this case, the head of the center imposes a minimum fine of UAH 17,000. And Article 300 (Procedure for Enforcement of a Resolution on Imposing an Administrative Penalty in the Form of a Fine for an Offense) will include a clause stipulating that if the violator pays 50% of the fine within 10 calendar days from the date the resolution comes into force, the resolution is considered to be enforced.
Fourthly, if the draft law is adopted, the TCC will be able to attach to the resolution an extract from the Unified State Register of Conscripts, Persons Liable for Military Service and Reservists “Oberig”, which confirms that the person has not updated the data within the established time limits or is not in the register at all. Currently, courts do not consider the registry data as evidence of an offense and cancel fines.
Mandatory appearance before the TCC
On the one hand, MPs have made a discount on fines from the TCC, but on the other hand, the draft law has many hidden pitfalls, which was told about by lawyer Roman Simutin.
Currently, the Code of Administrative Offenses prohibits consideration of cases in absentia, except for traffic violations recorded automatically. In other cases, the law requires that cases be considered with the participation of a person. This means that the TCC must send a summons before issuing a fine. However, TCCs often ignore this requirement and issue decisions in absentia. Therefore, in 99% of cases, such fines are canceled by the courts due to violations of procedures.
“MPs are now closing this gap. According to the new amendments, cases under Articles 210 and 210-1 will be considered in absentia, without notifying the person,” the lawyer emphasized.
In addition, a summons sent by mail will be considered served regardless of actual receipt.
“Therefore, sooner or later all citizens who fail to appear when summoned will receive fines,” noted Simutin.
50% of the fine does not exempt from repeated penalties
The lawyer draws attention to the second important innovation in the Code of Administrative Offenses – the possibility of voluntary notification of the TCC of an administrative offense and consent to administrative prosecution with a fine of 50%. In essence, this applies to each of the 6 million persons liable for military service who did not update their credentials by July 17, 2024, thereby violating the rules of military registration and committing an administrative offense under Art. 210 of the Code of Administrative Offenses, which provides for a fine of UAH 17,000 to UAH 25,500.
The draft law adopted in the first reading grants such persons liable for military service the right to personally apply to the MCC to clarify their personal data, as well as to submit an application to the MCC, in which they must report the fact of committing the said offense and give consent to the consideration of the case in their absence. After that, such a person is given the opportunity to voluntarily pay 50% of the minimum fine specified in the article of the Code of Administrative Offenses, i.e. UAH 8,500, within 10 calendar days from the date the decision of the CCC comes into force.
However, the lawyer believes that a person liable for military service may not be able to leave the MCC.
Thus, the draft law simplifies the procedure for bringing men liable for military service to justice for violating the rules of military registration and mobilization legislation as much as possible. If adopted:
- MCCs will have the right to issue decisions in absentia under Articles 210 and 210-1 of the Code of Administrative Offenses and impose fines.
- Payment of a fine does not exclude a person from the wanted list in the Oberig information system and the MIA database, nor does it relieve them of the obligation to appear before the MCC under new summonses.
- The law gives the TCC the right to send an unlimited number of summonses and impose a fine of UAH 25,500 each time a person fails to appear.
“In my opinion, the 50% fine distracts attention from the main problematic and, in my opinion, unconstitutional provision. After all, the key rule that they are trying to introduce is set out in the first part – fines in absentia. If it is adopted, the rulings will be stamped out on a conveyor belt. Now do the math: 6 million men have violated the law – multiply by 25,500 UAH, and we get 153 billion. And everyone is talking about a 50% discount, but they are silent about fines in absentia,” noted Roman Simutin.
As a reminder, this draft law was registered in the Rada on October 4, and, as stated in the explanatory note, its main goal is: “to encourage citizens to independently apply to the TCC, administrative service centers or the office of a conscript, person liable for military service or reservist to clarify their data in order to pay only half of the fine.”
This is due to the fact that in 2024, more than 6 million persons liable for military service failed to update their personal data within 60 days of the Presidential Decree coming into force. This is subject to administrative liability in the form of a fine of UAH 17,000 to 25,000 under Articles 210 and 210-1 of the Code of Administrative Offenses for violation of mobilization and military registration.
Author: Alla Dunina