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GENERALIZATION OF THE SUPREME COURT OF UKRAINE

of August 1, 2008

Practice of consideration by courts of cases on administrative offenses in the field of gaming, responsibility for which is provided by Art. 164 of the Code of Ukraine about administrative offenses (1),

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(1) Generalization is prepared by the judge of the Supreme Court of Ukraine V. V. Zagoldny and the consultant of department of the analysis of statistics of management of studying and generalization of court practice O. M. Kolyanchuk.

The objective party of the offense provided by Art. 164 of the Code of Ukraine about administrative offenses (further - the Administrative Code), consists in implementation of economic activity which contains signs entrepreneurial, without state registration as the subject of housekeeping or without receipt of the license for implementation of certain type of economic activity which is subject to licensing according to the law, or without receipt of permission, other document of allowing nature if its obtaining is provided by the law.

According to item 29 of Art. 9 of the Law of June 1, 2000 N 1775-III "About licensing of certain types of economic activity" the organization and content of totalizators, gambling institutions, release and carrying out lotteries, the organization of activities for carrying out gamblings are subject to licensing.

Interpretation of the concept "gaming" contains in Art. 5 of the specified Law and it should be understood as the activities connected with the structure of casino, other gambling places (houses), gambling automatic machines with cash or property prize, carrying out lotteries (except state) and draws with issue of winnings in cash or property form.

According to statistical data which arrived from Appeal Courts in local courts in 2007 for consideration 1 thousand 910 cases on administrative offenses in the field of gaming, responsibility for which is provided by Art. 164 the Administrative Code, from them on p.1 - 1 thousand 806 cases, according to the p. 2 (repeated making of such offense within year) - 104 arrived. Courts for proper registration returned to the bodies authorized on creation of the administrative report, 105 cases from them on p.1 - 96, according to the p. 2

9. Unconsidered by the end of the reporting period were 15 cases of this category.

With pronouncement of resolutions local courts in 2007 considered 1 thousand 802 cases on administrative offenses in the field of gaming, their specific weight made 93,8 of % of all cases of the specified category which were under consideration in local courts. The number of persons concerning whom courts considered such cases with pronouncement of resolutions made 1 thousand 802 persons, including according to p.1 Art. 164 the Administrative Code - 1702 persons, according to the p. 2 - 100. For making of the administrative offense provided by Art. 164 the Administrative Code, courts imposed administrative punishment on 1 thousand 303 persons, or 72,3 of % of concerning what cases with pronouncement of resolutions are considered, from them on p.1 - on 1228, according to the p. 2 - 75.

Concerning 499 persons of production for the specified category it is closed, their specific weight made 27,7 of % of the number of persons concerning whom cases with pronouncement of resolutions are considered.

In 2007 local courts imposed administrative punishment in the form of penalty on 1303 persons, the amount of the imposed penalty constituted 635 thousand UAH, offenders voluntarily paid 135 thousand UAH, or % 21,3.

Courts applied additional collection in the form of confiscation of gambling automatic machines to 168 persons, or 12,9 of % of the number of on what penalties for making of administrative offense in the field of gaming are imposed. According to p.1 Art. 164 the Administrative Code confiscation of gambling automatic machines is applied to 150 persons, according to the p. 2 - to 18. More often appointed additional collection in the form of confiscation courts of areas: Kharkiv - 20,5 of % of the number of persons on whom administrative punishment is imposed, Dnipropetrovsk - 20,3 of %, Chernihiv - 16,7 of %, Poltava - 15,8 of %, Nikolaev - 15,2 of %, Donetsk - 14,9 of %, Rivne - 11,9 of %, Luhansk - 10,2 of %, the Autonomous Republic of Crimea 10,7 of % and Kiev - % 16,2.

Quality of creation of protocols on administrative offenses in the field of gaming

Apparently from the cases requested for generalization, protocols on administrative offenses in the field of gaming, responsibility for which is provided by Art. 164 the Administrative Code, were generally constituted according to the requirements provided by articles 254 and 255 of this Code authorized on that by officials of law-enforcement bodies, bodies of the State Tax Service, financial bodies and bodies of the state fire supervision. In most cases quality of creation of protocols on administrative offenses met the requirements of the legislation. Cases on administrative offenses which were sent to court for consideration except the protocol on administrative offense contained also the official reports constituted by representatives on it persons, the protocols of survey constituted with observance of requirements of the legislation, explanation of persons which work as operators of gaming machines, copies of documents on provision of permission to occupation economic activity and so forth.

However in case of information analysis and cases on the administrative offenses of the specified category sent by Appeal Courts the facts when contrary to requirements of Art. 254 the Administrative Code protocols on administrative offenses were constituted by persons, unauthorized on it, are found out.

For example, the protocol on administrative offense concerning S. was constituted by the local militia inspector of the Trostyanetsky District Department of Internal Affairs of Regional Office of the Ministry of Internal Affairs of Ukraine in the Sumy region.

Not isolated cases of unseemly execution of administrative reports in this connection courts returned them to body which constituted them are established. In particular, persons authorized on creation of the administrative report in cases on administrative offenses in the field of gaming not always observed the requirements provided by Art. 256 the Administrative Code concerning contents of the protocol on administrative offense: the place, time and circumstances of making of administrative offense were incorrectly specified (or were not specified at all); there are no information about the identity of the offender, namely data on its administrative prosecution for year; there are no signatures of the offender and witnesses, their home addresses, and also other data which are necessary for acceptance of legal and reasoned decision on case; all data on person who constituted the protocol on administrative offense are not specified; in protocols there are no name, brand and number of gambling automatic machines. The specified shortcomings are the most widespread, were allowed in the majority of cases on administrative offenses, and it complicated movement of case at stages of its preparation for consideration, creation of the resolution, and also the appeal to accomplishment.

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