The State Emergency Service of Ukraine (SESU) carries out state supervision (checks) to identify and prevent violations of legislation by business entities, and also to protect the interests of the community through carrying out scheduled and unscheduled inspections.
There has been a moratorium on conducting business audits in Ukraine since 2014.
However, from year to year, at the level of laws and regulatory legal acts, and exceptions to the general rule are being established. Today, the list of such exceptions is so great that the use of the term “moratorium” seems questionable.
For instance, resolution No. 1104 of the Cabinet of Ministers of Ukraine as of 18.12.2017 approved a list of state supervision bodies to which the moratorium does not apply.
Among them are the SESU and its territorial bodies (in relation to the implementation of state supervision (checks) on institutions for the rehabilitation and recreation of children, boarding schools, pre-school institutions, general secondary education, vocational and specialized education, as well as business entities with a high degree of risk).
In practice, however, even the statutory grounds are not sufficient for SESU bodies. Often, government officials interpreted statutory exemptions freely. As the result, the rights and interests of economic entities are violated.
For example, the bodies of SESU carry out unscheduled inspections based on decisions of investigating judges, issued in criminal cases, which often have no relation to any economic entity.
And in fact, the Criminal Procedural Code of Ukraine does not provide the possibility for the investigating judge to make any such decisions, but does establish an exhaustive list of decisions of the investigating judge that can be appealed against separately from the verdict. As a result, a decision that is not provided for by the law can exist that is impossible to appeal against from a formal point of view. Confirmation of this is the huge number of decisions of the courts of appeal on this topic throughout Ukraine.
This is happening as follows: an appeal by law enforcement bodies with a procedural request within the framework of a certain criminal case is satisfied by the investigating judge. At the same time, the entities in respect of which the audit is planned are not called to the court session.
Economic entities are increasingly appealing such decisions in cassational procedures.
Several of these cases are under consideration now by the Grand Chamber of the Supreme Court of Ukraine.
Concerning the inspections, it seems that their main goal is to stop economic activity. Inspectors try to “detect” as many violations as they can, even those that do not exist, or which can be eliminated at the time of verification.
If a violation is detected, an act is drawn up. On its basis, the body of the SESU, if there are grounds for a complete or partial suspension of proceedings, applies with an appropriate claim to the administrative court.
If other measures of response are necessary, an improvement notice, an order, or another administrative document are prepared to rectify the violations discovered. As a rule, a month is provided by the SESU for rectifying violations.
The key factor in deciding whether to completely or partially suspend production, based on the rule of law, is the existence of justification. The legal basis for the application of this type of response is danger to life and / or human health.
A systematic analysis of the rules, incl. rules of proceedings (a decision must be taken by a court), allows us to assert that the claim for the application of such response measures should be justified by the SESU authorities – in accordance with the adversarial principle of the parties.
A decision on the application of such response measures has to be justified, proceeding from the general requirements established in procedural law.
Experience has shown that in most cases, the courts are on the side of the inspectors, and often take unreasonable decisions to stop the operation of objects of various purposes based on a single inspection report (act) drawn up by the bodies of the SESU.
We hope that the newly formed Supreme Court will analyze the practice of considering such disputes within the context of Art. 19 of the Constitution of Ukraine, and will take a position that takes into account not only the interests of the state, but also those of business.
Until then, we recommend you carefully check the documents by which inspectors justify the right to conduct a check for their completeness and correctness of registration since, in the case of non-compliance (in the case of denial of access to inspection), fines can be avoided.
