The experts of the advisory center “Smart Country” prepare a draft bill that will correct the main shortcomings of the laws of Ukraine № 1534-IX and № 1582-IX, the rules of which from October 1, 2021 establish new rules for compliance with size and weight control on roads and responsibility for their violation. In the near future, the draft bill will be registered in the Verkhovna Rada of Ukraine. According to the UAC’s press service.

"These bills completely change the rules for prosecuting carriers and shippers for violating size and weight limits for the transportation of goods on roads. We understand that the issue of preserving repaired roads within the project "Great Construction" is important. An effective method to preserve these roads is to strengthen weight control, responsibility for "overloads" and punish violators accordingly. But, unfortunately, when these laws were adopted, the constructive remarks of experts were not taken into account. Fortunately, the representatives of the relevant committee and the Ministry of Infrastructure understand that the adopted laws have shortcomings and should be corrected. Therefore, together with the people's deputies we work on a document and in the near future will try to correct the shortcomings of these laws," an expert from an advisory center “Smart Country” Ruslan Kalnytskyi explained.

The main shortcomings of the laws relate to the prosecution of shippers. Thus, in its proposals for the new draft law, the UAC initiates the establishment of proportional, non-discriminatory and balanced mechanisms. In particular:

1. To establish the same approach to the grounds for bringing to administrative responsibility for the same violation of the shipper and the carrier, who are equal participants of the transportation process.

Currently, according to Law №1582-IX, a different approach has been established. Thus, if the carrier under the updated version of the second part of the Article 1321 is brought to administrative responsibility because of exceeding size and weight limits by 5% or more, then the shipper is brought to responsibility for exceeding any size and weight limits (even minor: a few kg or tens of kg).

In practice, especially when transporting agricultural products from the field, it is the carrier's driver who can as usual to estimate the total weight of the car with an approximate error of 5%. After all, as a rule, due to the lack of appropriate technical means, the cargo is not weighed in the field. In addition, during the transportation process, the total weight of the car may increase (refueling, reloading with other cargo), which is not affected by the shipper, but he can be brought to administrative responsibility and obliged to pay a fine.

2. To establish a gradation of the penalty sizes for exceeding of size and weight limits.

In the new article. 1322 of the Code provides for the establishment of a fixed amount of liability for the shipper - UAH51,000. At the same time, for the carrier such a gradation is provided in the corresponding sanction of the second part of 1321 of the Code (excess of norm in the amount of 5-10% - a fine is of UAH8,500, 10-20% - a fine is of UAH17,000, 20-30% - a fine is of UAH34,000, over 30% - a fine is of UAH51,000).

We emphasize that the unfounded determination of the unalterable amount of the fine in the sanction of Art. 1322 of the Code makes it impossible to meet the requirements of part two of Art. 61 of the Constitution of Ukraine and a number of general provisions of the Code (Articles 33-35) regarding the individualization of legal responsibility of a person.

A similar reservation to this norm was expressed by the Main Legal Department of the Verkhovna Rada of Ukraine.

3. To remove the double administrative liability for the same violation, if the carrier and the shipper are one person.

According to the innovations, which come into force on October 1, 2021, if the carrier and the shipper are one person, in particular, during the carriage of goods by the shipper's own transport, such a shipper will be twice brought to an administratively responsibility for the same violation (excess of weight) according to the Article 1321 (as a carrier) and according to the Article 1322 (as a shipper). This issue contradicts Part 1 of the Art. 61 of the Constitution, which stipulates that no one can be brought to legal responsibility for the same offense twice.

4. To eliminate legal liability for the shipper for the carriage of goods without obtaining the appropriate permit, if such goods exceed size and weight limits.

The Article 1322 of the Code of Administrative Offenses provides for legal responsibility for the shipper for the carriage of goods without obtaining a permit, if such goods exceed size and weight limits. At the same time, according to the second part of the Article 1321, the carrier will also be brought to administrative responsibility for the same violation.

It is noted, that ensuring of compliance with the law during the movement of large vehicles or transportation of bulky goods, in particular, in terms of obtaining a permit for such a movement (transportation) is a responsibility of the carrier, but not the shipper, which can not affect carrier’s obligation (Article 48 of the Law of Ukraine "On Transport", Article 29 of the Law of Ukraine "On Road Traffic", paragraph 32 of the Procedure for dimensional and weight control and tolls for public roads and other self-propelled machines and mechanisms, weight and/or dimensional parameters of which exceed the limit, approved by the resolution of the Cabinet of Ministers of Ukraine of June 27, 2007 № 879).

We have to understand that in accordance with Part 2 of the Art. 61 of the Constitution of Ukraine, the legal responsibility of a person is individual. This provision of the Constitution on the individualization of administrative responsibility is also specified in the relevant provisions of the Code (Articles 9-11, 33-35).

In such circumstances, imposing administrative liability on the shipper for inaction of the carrier for failure to obtain a permit to move a large vehicle or transportation of large cargo is unfounded and violates the provisions of the Constitution of Ukraine and the Code on the individual nature of administrative responsibility.

5. Also in the draft law, developed by the UAC, it is offered according to the principle of legal certainty, to which any law has to correspond, to specify procedural issues of attraction of shippers to the corresponding administrative responsibility in the sector of weight control.

The Code of Administrative Offenses, taking into account the amendments made by the law, defines the following features of consideration of cases and bringing to administrative responsibility of the shipper for administrative offenses under the Article 1322 of the Code, in particular, it is established that some issues are not taken into account when imposing a penalty under this article: the nature of the offense, the identity of the offender, the degree of his guilt, property status that mitigate and aggravate responsibility (changes to Part 2 of Article 33 of the Code ); the requirement of open consideration of the case does not apply (changes to Part 1 of Article 249 of the Code); the protocol on an administrative offense is not drawn up (changes to part 2 of Article 258 of the Code); the decision in the case of an administrative offense is made without the participation of the person who is brought to administrative responsibility (changes to Part 7 of Article 258, Part 4 of Article 2795 of the Code); features of enforcement of resolutions in the case of such an administrative offense are established (amendments to Part 3 of Article 299 of the Code).

At the same time, we emphasize that Article 33 of the Code provides general rules for imposing penalties for administrative offenses, the essence of which is to implement the most important principles of administrative responsibility - its legality and individual features. In particular, regarding the consideration of the nature of the offense, the identity of the offender, the degree of his guilt, property status that mitigate and aggravate responsibility when imposing a penalty.

Taking into account type of the violation provided for in the new Article. 1322 (violation of the requirements for registration and entry of information in the consignment note or other documents on the cargo specified by the law) and the fact that the Code does not specify the method of recording such an offense, non-application to Art. 1322 of the second part of Article 33 of the Code is unacceptable from the point of view of its practical implementation, because the requirement of legal certainty of the law as an element of the principle of the rule of law is not implemented (Article 8 of the Constitution of Ukraine).

In addition, in accordance with the provisions of the Law, violations provided for in Article 1322 will not be recorded by means of photography and filming, video recording, in particular in automatic mode (because there are no relevant changes to Article 143 of the Code in the Law), but such cases will be considered in the manner prescribed for the consideration of cases of administrative offenses, which are recorded automatically (Articles 249, 258, 2795 and others).

Therefore, taking into account the amendments made by the law, the issue of what materials (evidence) will be considered cases of violations under Art. 1322 will not be solved, which will complicate its practical implementation in the Code. Therefore, nowadays, the provisions of the Code (connected with questions on cases consideration and bringing to responsibility)  will not contain sufficient and complete legal mechanisms for the implementation of its norms as required by the constitutional principles of the rule of law (Articles 1 and 8 of the Constitution of Ukraine) and will not take into account decision of the Constitutional Court of Ukraine of 05.30.2001 №7rp/2001 on the completeness of legislative regulation of public relations, its systematization and complexity. A similar caveat to the above norms was expressed by the Main Legal Department of the Verkhovna Rada before the consideration of the draft bill in the second reading.

In such circumstances, taking into account that the offenses according to Art. 1322 of the Code, given the objective side of the disposition of this article cannot be recorded with the help of photography, filming and video recording, in particular in automatic mode, as they require verification and inspection of the relevant CNs (consignment notes) or the other statutory documents for cargo. It is necessary to exclude the relevant amendments to the above articles of the Code and extend to the procedure of consideration of relevant cases of administrative offenses and bringing the shipper to justice under Article 1322 of the Code’s general provisions, which will comply with the principle of legal certainty and provide guarantees of observance of legal rights of shippers.