CASE LAW OF APPELLATE COURTS ON WILLFUL DISOBEDIENCE TO LAWFUL POLICE ORDERS DURING CURFEW

Abstract

During the legal regime of martial law, the application of Article 185 of the Ukrainian Code of Administrative Offenses has actually become the most effective influence on malicious curfew violators. The article examines the problem of bringing administrative liability for willful disobedience to a lawful order or demand of a police officer, a member of a public formation for the protection of public order and the State border, or a military serviceman, committed during the curfew. For this purpose, the author analyzes the decisions of the appellate courts made in Ukraine during martial law. The author attempts to summarize in a table the circumstances of the case and the shortcomings in the documentation which affected the outcome of the proceedings. Thus, nine clusters of relevant cases have been identified: I) the protocol does not state what actions the offender committed that would meet the disposition of Art. 185 of the Code of Administrative Offenses; II) incorrect wording of the offense in the protocols (willful disobedience to the order to impose a curfew); III) the person did not directly refuse to comply with the requirement to leave the street during the curfew; IV) insufficient proper, admissible and reliable evidence; V) the person maliciously refused to get out of the vehicle contrary to the lawful request of the police officer; VI) willful disobedience was preceded by disorderly conduct; VII) willful disobedience was preceded by driving while intoxicated; VIII) willfu; disobedience consisted of refusal to comply with a lawful request to present documents for verification; IX) the wording of essence of the offense “violated the requirements of the Decree of the President of Ukraine“. Having carried out a substantive analysis of these decisions, the author concludes that the key aspects of bringing persons to liability for willful disobedience to the lawful demands of police officers during the curfew are: 1) clarity and correctness of the wording in the protocol; 2) availability of a set of appropriate, admissible and reliable evidence consistent with each other; 3) absence of circumstances excluding liability; 4) proof of malicious disobedience; 5) proof of legality, clarity, persistence and repeatedness of the police officer's demand or order; 6) proof of the police officer's being “on duty” to protect public order.