Covid-19 business criminal law and other issues in Ukraine

According to the regulations issued by the Ukrainian government, all companies shall adhere to sanitary rules and regulations for the prevention of infectious diseases and mass poisoning. 

On 17 March 2020, Ukrainian Parliament adopted the Law of Ukraine On the Amendment of Certain Legislative Acts of Ukraine Aimed at the Prevention and Limiting Spread of the Coronavirus Disease (COVID-19) (the “C19 Law”). The C19 Law imposed administrative as well as criminal liability for breaching the quarantine measures.

According to the C19 Law, an individual’s action or failure to act shall qualify as an administrative offence irrespective of its implications. The mere fact of the individual’s breach of the quarantine rules/restrictions shall suffice for qualifying it as an administrative offence. 

If such an action/failure to act resulted or might have resulted in the exposure of third parties to COVID-19, then it shall qualify as a criminal offence.

Neither of them can face the respective liability ex officio but only for their personal action/failure to act.

Yet the fact of their holding the office can certainly add to the gravity of the offence. In the event of the administrative liability, it will be quantified in the increased administrative fines as indicated below. In the event of the criminal liability, the court is likely to apply more severe sentence to such individuals. 

No liability for the violation of quarantine rules or for the exposure or risk of exposure of COVID-19 shall attach to the businesses. Only individuals (irrespective of whether they hold managerial positions) may be subject to the administrative or criminal liability for the concerned offences.

We set out below the potentially applicable penalties.

Administrative liability

If an individual’s action/failure to act qualifies as an administrative offence, then the individual shall be liable to pay the administrative fine ranging between UAH 17,000 (circa EUR 575) and UAH 34,000 (circa EUR 1,150). 

If the offender is a civil servant or a manager with a private company, then the amount of the administrative fine will vary between UAH 34,000 (circa EUR 1,150) and UAH 170,000 (circa EUR 5,750).

Criminal liability

If an individual’s actions qualify as a criminal offence under the Penal Code of Ukraine, the following sanctions shall apply: (i) a criminal fine ranging between UAH 17,000 (circa EUR 575) and UAH 51,000 (circa EUR 1,700), (ii) an arrest for up to six months, (iii) imprisonment for up to three years. 

In the event the criminal offence resulted in the victim’s death (or other grave consequences), the guilty individual may be sentenced to the prison term of five to eight years.

A rather limited number of administrative cases (less than 100) have been brought by the police to courts for the violation of the quarantine by the employees of small businesses (cafes, shops, etc.). However, at this point the courts appear to be reluctant to impose material fines to the violators. Hence, more than 90% of the cases ended up without application of fines or other penalties.

According to the statement of the Minister of Internal Affairs, several criminal proceedings have been initiated for the breach of the quarantine regime. However, no information is publicly available to verify that statement and to investigate the nature and background of the concerned proceedings.

Specific measures for the companies that were allowed to operate during quarantine have been introduced by the Cabinet of Ministers of Ukraine. At the same time, the local authorities adopted their own decisions on the implementation of quarantine measures within the framework provided by the Government.

Generally, the management of those businesses, which operation is permitted by the Government, is required to facilitate their employees’ work from home to the extent possible. Where it is impossible to work from home, employees can still commute to their workplaces (either on their own or using the company-furnished transportation), provided they (i) have no disease symptoms and (ii) neither they, nor anyone in their household are self-isolating. 

If the nature of business mandates that people (customers) attend the company’s premises (e.g. stores), then the customers and the staff shall follow the social distancing rules, i.e. maintaining at least 1.5 meters of distance between each other, wear personal face masks, disposable gloves, etc. The businesses in this case are required to enforce the respective rules, (i.e. to control the proper use of face masks and the number of people present in the premises at the same time), offer hand sanitizers, and take care of similar measures. 

Given that current pandemic situation and quarantine is completely new for Ukraine, as well as for most countries, it is impossible to definitively foresee the exact types of civil claims that may arise due to business operation during quarantine. 

It is likely that such claims may relate to the compensation (damages, losses, moral damages) for the risk of COVID-19 exposure or for falling ill due to such exposure. Those claims may be brought by members of the staff, customers and/or business partners. However, in any case the claimant shall be obliged to prove that the unlawful actions of the management (or owner) of the business have resulted in the actual or moral damages to the claimant.

If the civil claim arises from the administrative or criminal case, the violations of quarantine measures and guilt of the company management (or owner) will be established within the respective court proceedings. Thus, in such case the claimant will have better chances pursuing civil liability claims against the respective company.

If the claim does not rest on any administrative or criminal proceedings, the claimant will also need to prove that the company management (or owner) failed to comply with the quarantine measures and restrictions and that fact negatively affected the claimant. However, the civil claimant will have rather limited chances to succeed in that in the absence of the supporting administrative or criminal verdict.

The legislation does not foresee any limitation of liability for this type of claims. Thus, it is the claimant who shall substantiate the amount of liability and the judge who will decide on the exact amount of compensation in each particular case.

Group claims cannot be excluded, given the circumstances and massive exposure to COVID-19.