Quite often, individuals are brought to certain types of administrative liability. Who can be brought to this type of responsibility, what is the procedure for bringing citizens to punishment under the Code of Administrative Offenses of the Russian Federation, read the answers to these and other questions below.
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Who can be held administratively liable?
A legal entity, an individual and an official can be brought to administrative liability, it all depends on the composition of the offense.
Special questions regarding legal entities and officials should not arise, since if there is a composition, then these categories of persons are subject to liability.
The most interesting question is about the age of individuals involved in administration:
The very first question that may arise is at what age are people brought to administrative responsibility? To answer this question, let us turn to Art. 2.3. Code of Administrative Offenses of the Russian Federation, which states that an individual can be subject to administrative duties if he has reached 16 years of age.
The Code of Administrative Offenses of the Russian Federation does not identify any special articles for minors; it turns out that a minor can be prosecuted under all articles of the Code of Administrative Offenses of the Russian Federation as an individual. In addition, upon reaching 16 years of age, an individual may be recognized as fully capable through emancipation.
There are quite a lot of offenses under the Code of Administrative Offenses of the Russian Federation for individuals; you can be brought to administrative charges for violations in the field of property protection, in transport, in the field of road traffic, in the field of military registration, etc.
Responsibility under administrative law
Federal Agency for Education of the Russian Federation
State educational institution of higher professional education
Test
in Administrative Law
Subject:
Responsibility under administrative law
Plan
Responsibility under administrative law: concept, types, main features
Composition of an administrative offense
Task
Literature
Responsibility under administrative law: concept, types, main features
Administrative responsibility is the application by judges, an authorized body or an official of administrative penalties established by the state on the basis of the law and in the manner determined by law to individuals and legal entities for administrative offenses provided for by the legislation of the Russian Federation and the laws of the constituent entities of the Russian Federation, as well as the conscious readiness of the guilty person bear this punishment.
Administrative liability measures are characterized by a punitive function (administrative punishment), which does not exclude their general and individual preventive (warning) value.
The conscious readiness of a person to bear this punishment is important in that it forms the legal consciousness of citizens and officials about the fairness of punishment and its preventive action in relation to both those who have committed an administrative offense and those who have not.
Administrative liability occurs in case of violation of administrative legal norms. But this does not exclude the possibility of bringing to administrative responsibility for violation of labor, financial, land, and even constitutional law. The above means that administrative responsibility has cross-sectoral significance.
The rules of administrative law provide for various types of legal liability: criminal, disciplinary, administrative and material. Resolution of issues of criminal and partially material liability is within the competence of judicial jurisdiction, while other types of legal liability, and primarily administrative, disciplinary and partially material, are within the competence of administrative jurisdiction.
On the basis of the norms of administrative law, measures of social influence can be applied in the case where, in the opinion of the authorized official considering the case of an administrative offense, it is advisable to apply measures of social influence to violators of the norms of administrative law.
If the administrative offense committed is of minor significance, the judge, body, or official authorized to resolve the case of an administrative offense may release the person who committed the administrative offense from administrative liability and limit himself to an oral remark. Art. 2.9 Code of Administrative Offenses of the Russian Federation
Administrative legislation also provides for a number of mitigating circumstances that are taken into account when imposing an administrative penalty. These circumstances are specified in Art. 4.2 Code of Administrative Offenses of the Russian Federation. Part 2 of the same article states that circumstances not specified in this Code or in the laws of the constituent entities of the Russian Federation on administrative offenses may be recognized as mitigating circumstances.
Administrative liability has common features with other types of legal liability - criminal, disciplinary and material. This is due to the pursuit of a common goal - the education of offenders and the prevention of crime, and sometimes the coercive nature of measures of influence on offenders, a publicly negative assessment of their behavior.
Having common features with other legal responsibilities, administrative responsibility also has its own characteristics.
Thus, administrative liability for administrative offenses can be established not only by legislative bodies (Federal and constituent entities of the Russian Federation) in the form of laws, but also by executive bodies and their authorized officials, within the scope of their powers, they can establish administrative liability in the form of by-laws.
The imposition of administrative penalties is carried out by judges, bodies, and authorized officials. There is no relationship of subordination in service, work or study between the body (official) who attracts those guilty of committing an administrative offense and the guilty party.
Administrative liability differs from other types of legal liability in terms of the subjects of administrative liability. Legal entities are also held administratively liable.
Persons who have reached the age of 16 at the time of committing the offense may be held administratively liable. At the same time, for persons aged 16 to 18 years, as a rule, other measures provided for by the commission on minors’ affairs and the protection of their rights are applied. Parents and persons replacing them are responsible not for the offenses of minor children, but in connection with them, i.e. for not controlling their behavior.
Officials are liable if they commit an administrative offense related to failure to perform or perform their official duties. This applies to offenses related to non-compliance with established rules in the field of protection of administrative order, state and public order, protection of the natural environment, public health, sanitary-epidemiological and other rules, the enforcement of which is included in their official duties.
There are also special subjects of administrative responsibility. Military personnel and citizens called up for military training are responsible for administrative offenses in accordance with disciplinary regulations. Employees of internal affairs bodies, bodies of the criminal-executive system, federal tax police and customs bodies are responsible for administrative offenses in accordance with the regulations governing the procedure for serving in these bodies. For violation of the legislation on elections and referendums, sanitary and epidemiological welfare of the population, traffic rules, fire safety requirements outside the place of duty, legislation on environmental protection, customs rules and rules of the regime of the State Border of the Russian Federation, border regime and regime at checkpoints through the State border of the Russian Federation, as well as for administrative offenses in the field of taxes, fees and finance, failure to comply with the legal requirements of the prosecutor, investigator, person conducting the inquiry, or the official conducting proceedings in the case of an administrative offense, persons subject to disciplinary statutes or special provisions about discipline, bear responsibility on a general basis.
The basis for administrative liability is the commission of an administrative offense and the existence of a corresponding norm providing for administrative liability, and also if, by its nature, the offense does not entail criminal liability.
An administrative offense differs from a crime only in a lesser degree of social danger, therefore they often talk about the harmfulness, and not the social danger, of an administrative offense. This probably served as the basis for the formal abolition of such a sign of an administrative offense as a public danger.
Some elements of an administrative offense can be called only formal, because Administrative liability occurs regardless of whether negative consequences have occurred from a given offense or not - the very fact of violation of the rules protected by the norms of administrative legal acts is sufficient.
An administrative penalty is imposed for an administrative offense, a disciplinary penalty for a disciplinary offense, and a criminal penalty for a crime.
Persons who have committed administrative offenses are subject to special administrative coercive measures of a state-authoritative nature.
For the same offense, only one administrative punishment, primary and additional, or only primary, can be applied to the person who committed it. However, this does not prevent the combination of administrative, disciplinary and financial liability measures in the application, if such is provided for by law.
Administrative punishment applied to a legal entity does not relieve its manager or owner from legal liability and vice versa.
If a person commits two or more administrative offenses, administrative punishment is imposed for each administrative offense committed, with the exception of cases where the person has committed several administrative offenses, the cases of which are considered by the same body or official. In the latter case, the punishment is imposed within the limits of only one sanction.
Composition of an administrative offense
Administrative offense is an unlawful, guilty (intentional or careless) action or inaction that encroaches on state or public order, property, rights and freedoms of citizens, on the established order of government, for which administrative liability is provided for by law.
The corpus delicti of an administrative offense is understood as a set of characteristics established by regulatory legal acts, the presence of which may entail administrative liability.
The main elements of the legal composition of an administrative offense are the object, subject, objective and subjective sides.
The content of the object of an administrative offense is specific social relations regulated by the rules of law and protected by measures of administrative responsibility. That is, the object of an administrative offense is what it encroaches on, what social relations it violates. The general list of objects is defined in Art. 2.1 Code of Administrative Offenses of the Russian Federation, and includes:
ь protection of personality, protection of human and civil rights and freedoms;
b protection of public health, sanitary and epidemiological well-being of the population;
ь protection of public morality, environmental protection;
b protection of the established procedure for the exercise of state power, public order and public safety, property;
ь protection of the legitimate economic interests of individuals and legal entities, society and the state from administrative offenses, as well as the prevention of administrative offenses.
Consequently, the object of an administrative offense is any social relationship protected by administrative measures.
There are also specific objects of administrative offenses. You can learn about them from the contents of a particular article of the Special Part of the Code of Administrative Offenses. Yes, Art. 20.5 of the Code of Administrative Offenses of the Russian Federation provides for liability for violation of the established procedure for organizing or holding a meeting, rally, demonstration, procession or picketing.
This work is not unique. It can be used as a base to prepare for your project.
The content of the objective side includes an unlawful act, i.e. an action or inaction aimed at the object of an administrative offense, its nature, as well as the conditions for its commission (or non-commission).
Most administrative offenses are expressed in actions. An example of administratively punishable inaction is disobedience to a lawful order or requirement of a military serviceman in connection with the performance of his duties to protect the State Border of the Russian Federation Art. 18.7 Code of Administrative Offenses of the Russian Federation.
Conditions, as an element of the objective side, involve taking into account the time and method of committing an administrative offense. Yes, Art. 8.37 Code of Administrative Offenses
speaks of violations of hunting rules, which involves hunting without proper permission or in prohibited places, or at prohibited times, using prohibited tools or methods.
Subjects of administrative offenses can be both individuals and legal entities who have committed an administrative offense. All subjects of administrative offenses can be divided into the following categories: special subjects; subjects, with restrictions on the application of administrative liability; subjects brought to administrative responsibility on a general basis.
Special subjects include officials who are responsible for administrative offenses related to non-compliance with established rules for protecting administrative order, state and public order, nature, public health and other cases, but only when ensuring compliance with such rules is part of their official duties.
Officials are indicated in the relevant articles of the Administrative Code. A large list of administrative offenses is provided for them. This may include offenses such as: releasing a vehicle that is not registered in the prescribed manner, has not passed state technical inspection, has deliberately false state registration plates, or has defects with which operation is prohibited; failure to take measures to eliminate the causes and conditions conducive to the commission of an administrative offense, etc.
This refers to officials of government bodies, management and economic entities. Sometimes such subjects are the heads of institutions, commercial organizations, chief accountants or other authorized persons, heads of banks, exchanges, etc. Individual entrepreneurs who have committed an administrative offense in connection with the performance of administrative or administrative functions may also be considered as officials.
Subjects subject to restrictions on the application of administrative liability include military personnel and citizens called up for military training, pregnant women, women with a young child, disabled people of groups I and II, minors (under 18 years of age).
Circumstances mitigating administrative liability are recognized as Clause 4.5, Part 1, Art. 4.2 Code of Administrative Offences:
– commission of an administrative offense by a minor;
– commission of an administrative offense by a pregnant woman or a woman with a young child.
Military personnel and citizens called up for military training are responsible for administrative offenses in accordance with disciplinary regulations. Employees of internal affairs bodies, bodies of the penal system, the State Fire Service, bodies for control of the circulation of narcotic drugs and psychotropic substances and customs authorities are responsible for administrative offenses in accordance with the regulatory legal acts regulating the procedure for serving in these bodies. For violation of the legislation on elections and referendums, in the field of ensuring the sanitary and epidemiological well-being of the population, traffic rules, fire safety requirements outside the place of duty, legislation on environmental protection, customs rules and rules of the regime of the State Border of the Russian Federation, border regime, regime at points passage across the State Border of the Russian Federation, as well as for administrative offenses in the field of taxes, fees and finance, failure to comply with the legal requirements of the prosecutor, investigator, person conducting the inquiry, or the official carrying out the proceedings on the case of an administrative offense, persons subject to disciplinary statutes or special regulations on discipline are liable on a general basis. Administrative penalties in the form of administrative arrest cannot be applied to these persons, and to military personnel undergoing military service upon conscription, also in the form of an administrative fine. Art. 2.5 Code of Administrative Offences.
All other citizens are subjects subject to administrative liability on a general basis. This may include: citizens of the Russian Federation (not falling into the above categories), foreign citizens and stateless persons (except for persons with diplomatic immunity).
The subjective side of an offense is the mental attitude of the subject to an unlawful action or inaction and its consequences. It is expressed in the form of intent or negligence. In relation to individuals, everything is clear. The question of guilt in relation to legal entities is more complicated.
A legal entity is found guilty of committing an administrative offense if it is established that it had the opportunity to comply with the rules and regulations, for violation of which the legislation of the Russian Federation provides for administrative liability, but this person did not take all measures depending on it to comply with them.
The imposition of an administrative penalty on a legal entity does not relieve a guilty individual from administrative liability for this offense, just as bringing an individual to administrative or criminal liability does not exempt a legal entity from administrative liability for this offense. Part 3 of Art. 2.1 Code of Administrative Offenses of the Russian Federation.
From the above it follows that when an administrative offense is committed, the legal entity and the individual directly guilty of committing this act are subject to administrative liability in full.
3. Problem
Carrying out trade by hand in an unspecified place, T., who did not have any documents for the goods, was detained by police officers and taken to the internal affairs department, where upon inspection it was established that she had committed a similar offense again within 1 year.
Questions:
1. How should T.’s actions be qualified?
2. What can be the maximum period of administrative detention of T.?
3.
Which body (official) should consider the case of T.’s offense?
4. What should be done with the goods that were sold by T., without documents, in an unspecified place?
How should T.’s actions be qualified?
The actions of citizen T. can be qualified under Article 14.1 of the Code of Administrative Offenses of the Russian Federation, i.e. carrying out business activities without state registration or without special permission (license). According to this article, an administrative fine in the amount of five to twenty times the minimum wage may be imposed on citizen T. Taking into account the fact that the repeated commission of a homogeneous administrative offense, if for committing the first administrative offense the person has already been subjected to administrative punishment, for which the period provided for in Article 4.6 (1 year) of the Code of Administrative Offenses of the Russian Federation, Clause 2 of Part 1 of Art. 4.3 of the Code of Administrative Offenses of the Russian Federation is aggravating. When assigning a penalty, the above aggravating circumstance must be taken into account, and the punishment must be such as to prevent further repetition of administrative offenses both on the part of T. and on the part of other subjects.
Actions of T. Can also be qualified as the sale of goods, performance of work or provision of services to the population in violation of sanitary rules or without a certificate of conformity (declaration of conformity) certifying the safety of such goods, work or services for the life and health of people. Part 2 Art. 14.4 of the Code of Administrative Offenses of the Russian Federation This article provides for liability in the form of an administrative fine imposed on citizens in the amount of twenty to twenty-five minimum wages. As an additional punishment, under this article, confiscation of goods may be applied.
What can be the maximum period of administrative detention of T.?
Administrative detention, that is, short-term restriction of the freedom of an individual, can be applied in exceptional cases, if this is necessary to ensure the correct and timely consideration of a case of an administrative offense, the execution of a decision in a case of an administrative offense. In this case, the period of administrative detention should not exceed three hours.
Which body (official) should consider the case of T.’s offense?
As for the violation by citizen T. of the norm enshrined in Art. 14.1 of the Code of Administrative Offenses of the Russian Federation, then cases under this article are, as a rule, considered by judges of arbitration courts. Violations of the norm enshrined in Part 2 of Article 14.4 can be considered by justices of the peace, bodies of the state sanitary and epidemiological service, as well as bodies of the state inspection for trade, quality of goods and protection of consumer rights.
What should be done with the goods that were sold by T., without documents, in an unspecified place?
On the basis of Part 2 of Article 14.4 (for violation, respectively, of the norms of this article), the goods of citizen T., which she traded by hand, without documents in an unspecified place, as an additional measure may be subject to confiscation, and also depending on the specific circumstances In this case, the goods may not be subject to confiscation.
Literature
Code of the Russian Federation on Administrative Offenses
Kozlov Yu.M.
Administrative law: Textbook. – 2nd ed., revised and expanded – M.: Yurist, 2004.
Ovsyanko D.M. A
administrative law: Textbook / Edited by Professor G.A. Tumanov. – M.: Yurist, 1997.
Chetverikov V.S.
Administrative law. Series "Higher Education". Rostov-on-Don: Phoenix, 2004.
Who holds citizens administratively accountable?
The following persons and bodies can hold citizens accountable:
- judges
- officials of certain bodies
- certain organs
Chapter 23 of the Code of Administrative Offenses of the Russian Federation lists the relevant bodies and persons who can consider administrative cases, namely:
- judges
- Commission on Minors' Affairs
- police
- bodies and institutions of the penal system
- tax authorities
- Customs
- military commissariats
- and others
The Code of Administrative Offenses of the Russian Federation defines the compositions that must be considered by certain persons. This is very important, since an administrative case cannot be considered by a person who does not have the right to consider it.
For example, cases of offenses by minors are considered by the commission on affairs of minors and the protection of their rights.
The police have their own offenses, according to which they consider cases, for example, for smoking in a public place.
CHAPTER 4 GROUNDS AND PROCEDURE FOR ATTRACTION TO ADMINISTRATIVE RESPONSIBILITY
The only basis for administrative liability is the commission of an administrative offense,
which is recognized as an unlawful, guilty action (inaction) of an individual or legal entity, for which administrative liability is established by the Code of Administrative Offenses or the laws of the constituent entities of the Russian Federation (Article 2.1 of the Code of Administrative Offenses of the Russian Federation). An administrative offense must have all
the listed legal characteristics (illegality, guilt) and its composition must include the elements provided for by the rule of law (object, objective side, subject, subjective side).
Object
An administrative offense is a set of social relations at which illegal actions (inaction) are directed. These may be the rights and freedoms of man and citizen; health of citizens; sanitary and epidemiological well-being of the population; public morality; environment; the established procedure for the exercise of state power; public order, legitimate economic interests of individuals and legal entities, society and the state, etc.
Objective side
an administrative offense consists of a specific action (inaction) of a person who violated an established rule and, in connection with this, entails administrative liability provided for by law; The objective side also includes the method, place, time, instruments and means of committing the offense and other circumstances.
Subject
the offense is the one who committed the administrative offense - individuals and legal entities. The Code of Administrative Offenses of the Russian Federation provides for the possibility of administrative liability only for persons over 16 years of age. Failure by an individual to reach the age required by law at the time of committing unlawful acts excludes the proceedings or leads to their termination. At the same time, by providing for the responsibility of citizens for administrative offenses from the age of 16, the Code establishes a number of additional guarantees for them. Thus, administrative arrest cannot be applied to minor offenders under 18 years of age (Part 2 of Article 3.9 of the Code of Administrative Offenses of the Russian Federation); being a minor is a mitigating circumstance
The procedure for bringing individuals to administrative responsibility
The procedure for bringing an individual to administrative responsibility is as follows:
- After it is discovered that an individual has committed an administrative offense, a protocol on the administrative offense must be drawn up. After drawing up such a protocol, the administrative case is considered initiated
- The individual must be explained his rights and obligations.
- An individual subject to prosecution has the right to give explanations on the circumstances of the case, which may be reflected in the protocol of the offense, as well as in other protocols, or recorded separately and attached to the case file.
- If there is a need to conduct an examination, then an appropriate examination is appointed
- Next, the case materials are subject to referral for consideration by the court, authorized body or official, who make decisions on the case, as a rule, on bringing to justice
The above is the most commonly used procedure for holding individuals accountable.
However, the Code of Administrative Offenses of the Russian Federation also contains other nuances and provisions regarding prosecution, for example:
- a case can be initiated not only on the basis of a protocol, but also on the basis, for example, of a ruling to initiate a case
- in some cases, an official may immediately make a decision on the spot regarding an administrative offense
- if necessary, an administrative investigation may be carried out
In certain cases, an individual may be detained, about which a protocol must be drawn up, he may also be removed from driving the vehicle, or he may be subjected to a drive. The Code of Administrative Offenses of the Russian Federation also contains other provisions and nuances that are difficult to describe in detail in this material.
USEFUL : about how to draw up a statement of prosecution, read the link
Features of bringing minors to administrative responsibility
In accordance with Article 2.3. of the Code of the Russian Federation on Administrative Offenses, a person who has reached the age of sixteen at the time of committing an administrative offense is subject to administrative liability.
Bringing minors to administrative responsibility has the following features:
1) cases of administrative offenses committed by minors are considered by the commission on affairs of minors and protection of their rights (Article 23.2 of the Code of Administrative Offenses of the Russian Federation).
In cases of a minor committing a traffic offense (Chapter 12 of the Code of Administrative Offenses of the Russian Federation), as well as offenses provided for in Art. 11.18 of the Code of Administrative Offenses of the Russian Federation, cases of this category can be considered by commissions for the affairs of minors and the protection of their rights only insofar as the body or official transfers (in the prescribed manner) the case of an administrative offense to the specified commissions.
2) when committing an offense related to drinking beer, drinks made on its basis, alcoholic, alcohol-containing products, consumption of narcotic, psychotropic, intoxicating substances, under the age of sixteen, his legal representatives bear responsibility for the actions of the minor.
3) The Code of the Russian Federation on Administrative Offenses does not provide for special types of administrative penalties applicable only to minors, but there are specifics when applying certain types of administrative penalties.
Thus, a fine can be imposed as a punishment, as a rule, if the minor has independent income or property. If a minor does not have independent income, an administrative fine is collected from his parents or other legal representatives (Article 32.2 of the Code of Administrative Offenses of the Russian Federation).
In addition, administrative arrest cannot be applied to minor offenders under the age of 18 (Part 2 of Article 3.9 of the Code of Administrative Offenses of the Russian Federation).
4) Part 2 art. 2.3. The Code of Administrative Offenses of the Russian Federation provides that, taking into account the specific circumstances of the case and data about a person who has committed an administrative offense between the ages of sixteen and eighteen years, the commission on affairs of minors and the protection of their rights, this person may be released from administrative liability with the application to him of a measure of influence provided for federal legislation on the protection of the rights of minors.
5) minority is a circumstance mitigating administrative liability (clause 4, part 1, article 4.2 of the Code of Administrative Offenses of the Russian Federation).
Thus, bringing minors to administrative responsibility has a number of key features determined by the status and position of minors in society.
The consideration of cases of administrative offenses of minors falls within the competence of the commission on affairs of minors and the protection of their rights, which has a wide range of powers in this matter.
The procedure for considering a case of administrative offenses of minors is similar to the consideration of a case of adults, however, it includes a number of features.
Thus, materials on violations of minors that are subject to consideration by district (city) or city district commissions are first studied by the chairman of the commission or his deputy, who decide to consider the case at a meeting of the commission. An additional review of the case or examination of received applications may be carried out.
When preparing and considering cases, the commission on juvenile affairs must accurately establish the age, occupation, living conditions and upbringing of the minor, the fact of the offense and data confirming its commission, whether there were adult instigators and other accomplices to the offense, whether any measures of influence were previously applied to the minor.
Before the consideration of the case, the minor, his parents or persons replacing them, if necessary, as well as representatives of educational institutions are familiarized with all materials.
The commission considers the case no later than 15 days from the date of its receipt. The prosecutor participates in the consideration of the case (Article 25.11 of the Code of Administrative Offenses of the Russian Federation). The guilt of a teenager in committing a specific administrative offense must be proven with the same degree of validity as the guilt of an adult. The presence of the teenager at the commission meeting is mandatory. Parents and, if necessary, representatives of educational institutions are also invited to attend. At the meeting, members of the commission evaluate all the materials of the case and can make a decision on the application of sanctions, which is formalized by a resolution. The decision of the commission in a case of an administrative offense can be appealed within 10 days from the date of its issuance
Rights of an individual held accountable under the Code of Administrative Offenses of the Russian Federation
A citizen who is involved in administrative matters has the right to:
- don't incriminate yourself
- refuse to give an explanation or give an explanation
- get acquainted with all the case materials
- provide evidence, make motions
- use legal assistance from a lawyer
- exercise other procedural rights, including filing challenges, filing complaints, receiving court orders, etc.
Thus, the person involved can take advantage of all the rights that are granted to him by the Code of Administrative Offenses of the Russian Federation.
Time limits for bringing individuals to administrative punishment
The general period for bringing to administrative responsibility is set at 2 months from the date of commission of the offense, and if the case must be considered by a judge, then 3 months. If the relevant deadlines expire by the time the case is considered, then the person is not subject to prosecution.
However, for certain offenses of the Code of Administrative Offenses of the Russian Federation, longer statutes of limitations have been established for bringing to responsibility, in connection with which the provisions of Art. 4.5. Code of Administrative Offenses of the Russian Federation.
Continuing and ongoing administrative offenses
In law enforcement practice, quite often problems arise related to the correct determination of the type of administrative offense (continuing or continuing). The importance of such a correct definition is due to the fact that in each type the statute of limitations for bringing to responsibility is calculated differently.
In case of a continued offense, the statute of limitations for bringing to justice is calculated according to the general rules for calculating time limits - from the day following the day of commission of the administrative offense (after the day of discovery of the offense), and in the case of committing an administrative offense expressed in the form of inaction, the period for bringing to administrative responsibility is calculated from the day following the last day of the period provided for the performance of the relevant obligation. In case of a continuing offense, the terms begin to be calculated from the date of discovery of the administrative offense (it must be borne in mind that the day of discovery of a continuing administrative offense is considered the day when the official authorized to draw up a protocol on the administrative offense revealed the fact of its commission)[1].
The expiration of the statute of limitations, as indicated in paragraph 6 of part 1 of Article 24.5 of the Code of Administrative Offenses of the Russian Federation, is a circumstance due to which proceedings in a case of an administrative offense cannot be started, and the started proceedings are subject to termination.
Accordingly, an incorrect definition of the type of offense may lead to unjustified prosecution of administrative liability or, conversely, evasion of it. Thus, the objectives of the legislation on administrative offenses established by Art. 1.2 of the Code of Administrative Offenses of the Russian Federation will not be resolved.
There is no definition of either a continuing or continuing offense in the Code of the Russian Federation on Administrative Offenses (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation). However, paragraph 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2005 N 5 “On some issues that arise for the courts when applying the Code of the Russian Federation on Administrative Offenses” (hereinafter referred to as Resolution of the Plenum of the Supreme Court of the Russian Federation N 5) states that such an administrative offense is continuing (action or inaction), which is expressed in long-term continuous failure or improper fulfillment of duties provided for by law[2].
The definition of a continuing administrative offense is not formulated in current official documents. In this article, a continuing offense will be understood as a single offense continued over time, consisting of the commission by a person of two or more identical independent illegal actions (inactions).
To better understand the differences between these two types of administrative offenses, let’s give an example: if you listen to music loudly for a week, month, etc., without turning it off, then this is a continuing offense. If you turn it off periodically, then this is a continuing offense.
From the resolution of the plenum of the Supreme Court of the Russian Federation No. 5, the following signs of a non-continuing offense can be identified:
The offense (action or inaction) involved the cessation of non-fulfillment or improper fulfillment of duties provided for by law; The essence of the offense was expressed in failure to fulfill the prescribed obligation by the established deadline (the Code of Administrative Offenses of the Russian Federation provides for the only case of suspension of this period. This case is the satisfaction of the petition of the person against whom the proceedings are being carried out in a case of an administrative offense, on consideration of the case at the place of his residence, when the time of sending the case is not included in the statute of limitations for bringing to administrative responsibility.By virtue of Part 5 of Article 4.5 of the Code of Administrative Offenses of the Russian Federation, the running of the said period is suspended from the moment this petition is satisfied until the receipt of the case materials judge, body or official authorized to consider the case at the place of residence of the person in respect of whom the proceedings are being conducted).
However, these criteria do not always help courts determine what type of offense it is.
Let us consider the problems of judicial practice affecting the characteristics of ongoing offenses. Let's start with cases of emissions of harmful substances into the environment (using the example of violations of water use rules when discharging wastewater into water bodies and releasing harmful substances into the air)[3]. Both of these types of offenses are essentially identical: they represent a time-limited action to release harmful substances into the atmosphere. Consequently, judicial practice under Articles 8.14 and 8.21 of the Code of Administrative Offenses of the Russian Federation should be considered in a single context.
In most cases, courts do not write whether offenses under these articles are continuing[4]. The lack of definition of the type of offense may indicate that the courts do not treat emissions of harmful substances as a continuing offence.
In support of this point of view, there are regulations that indicate that these offenses are not continuous. For example, the Danilovsky District Court of the Volgograd Region considered case No. 12-21/2015[5]. By resolution of the territorial administrative commission of the Danilovsky municipal district of the Volgograd region, FIO was found guilty of violating the procedure for handling household waste on the territory of the settlement. But the offender believed that the decision was made after the deadline for bringing him to administrative responsibility had expired. The representative of the territorial administrative commission of the Danilovsky municipal district of the Volgograd region did not agree at the court hearing, explaining that the administrative offense committed by the full name is ongoing, therefore the period is calculated from the day the administrative offense was discovered. The court considered that the arguments that the administrative offense committed by FIO is ongoing are untenable. As a justification, the judge cited paragraph 14 of Resolution of the Plenum of the RF Armed Forces No. 5, but the court did not explain why this particular offense was not considered ongoing. The resolution was canceled due to the provisions of paragraph 6 of part 1 of article 24.5 of the Code of Administrative Offenses of the Russian Federation, because the statute of limitations for bringing a full name to administrative responsibility established by part 1 of article 4.5 of the Code of Administrative Offenses of the Russian Federation (2 months) had expired.
The decision of the Zlatoust City Court of the Chelyabinsk Region[6] dated November 10, 2016 considered the case of the release of harmful substances into the air by PKU IK-25 GUFSIN. In this decision, the court did not indicate whether this offense was ongoing. As follows from the case materials, during a scheduled on-site inspection by the state inspector of the Russian Federation in the field of environmental protection for the Chelyabinsk region dated September 27, 2021, a protocol on an administrative offense was drawn up, in which it was recorded that FKU IK-25 GUFSIN of Russia for the Chelyabinsk region in 2015, production and economic activities were carried out, resulting in emissions of pollutants into the air. Part one of Article 4.5 of the Code of Administrative Offenses of the Russian Federation states that “a decision in a case of an administrative offense cannot be made after two months (in a case of an administrative offense considered by a judge - after three months) from the date of commission of the administrative offense, for violation of the legislation of the Russian Federation.” Federation in the field of environmental protection and natural resource management." Based on the case materials, it can be established that the decision was made later than this period. In case of a continuing administrative offense, the terms begin to be calculated from the date of discovery of the administrative offense. Consequently, the court may not have indicated that the offense was a continuing offense, but by default accepted it as such.
There are court decisions in which these offenses are characterized as continuing[7]. The Kamchatka Regional Court[8] found that the director of the Ossorskoe Housing and Communal Services Municipal Unitary Enterprise Podkopaev A.V. allowed the release of pollutants into the environment without the appropriate permit. The court classified this case as ongoing, citing the reason that there was a “long-term, continuous failure to comply with the requirements of the legislation of the Russian Federation in the field of natural resource management and environmental protection.” However, releases of pollutants into the environment represent only a series of systematic actions united by a single intent, which is not a continuing offense by definition.
The resolution of the Kemerovo Regional Court[9] dated October 14, 2015 deals with the case against Evrazruda OJSC, which has already been brought to administrative responsibility for discharging pollutants in the period from April 2013 to December 2013 and March 26, 2014. lack of permission to discharge pollutants into the environment (water bodies). On June 23, 2014, an administrative violation case was once again initiated against Evrazruda OJSC for the discharge of pollutants on January 13, 2014, February 3, 2014 and March 5, 2014 in the absence of a permit. The Kemerovo Regional Court decided that “the specific date of discharge of pollutants - March 5, 2014, established by the court, is covered by the period of the ongoing offense that took place in the period from April 2013 to March 26, 2014,” therefore, the newly discovered offenses form one offense with those , for which Evrazrud OJSC has already been brought to justice, therefore, it is no longer possible to bring it to justice again (repeated prosecution of a person for the same offense is unacceptable, even if it was revealed as a result of different inspections carried out by the same administrative body) [10 ]. The court recognized the offense of emissions into the atmosphere as continuing, despite the fact that there are interruptions in the actions of the offender, which contradicts the very concept of a continuing offense.
Supreme courts do not speak out on this issue[11]. Thus, in case No. 303-AD14-5393, the limited liability company RN-Sakhalinmorneftegaz was found guilty of committing an administrative offense, expressed in the implementation by the company of emissions of pollutants into the atmospheric air in the period from the fourth quarter of 2012 to the first quarter of 2013 without special permissions. The Supreme Court does not determine precisely whether the offense is a continuing offense. He only says that “the emission by society of harmful (pollutant) substances into the atmospheric air from all sources without appropriate permission constitutes one offense.”
Let us consider the judicial practice in cases of failure to restore public amenities. Clause 14 of the Resolution of the Plenum of the Supreme Court No. 5 states that “failure to fulfill the obligation provided for by the named legal acts by the established deadline indicates that the administrative offense is not ongoing.”
There is still debate in science about this criterion for determining ongoing offenses. D. N. Bakhrakh believes that this provision is unnecessary, since “before the expiration of the period for fulfilling the obligation, the act is not an offense at all.” And “on the day following the expiration of the period, the act becomes a beginning and continuing offense and only in the following days is considered a continuing offense”[12].
However, P.P. Serkov does not agree with the above position of D.N. Bakhrakh. He expresses the point of view that “non-execution, improper execution of a legal order at a specific time indicates that an objective side of a specific administrative offense has arisen. In turn, the possibility of determining the moment of its commission allows us to establish the beginning of the statute of limitations for bringing to administrative responsibility”[13].
The decision of the St. Petersburg City Court established that Roskar Trade LLC committed an administrative offense in the form of failure to restore amenities damaged after excavation work[14]. The court recognized this administrative offense as continuing, since “failure to restore amenities damaged after excavation work begins upon completion of the work performed and continues until the day the administrative offense is discovered.”
At the same time, the Second Arbitration Court of Appeal found that OJSC Kirov Heat Supply *** was issued an order on May 19, 2015 to eliminate the identified fire safety requirements, but it did not eliminate them[16]. The court indicated that failure to fulfill the obligation provided for by the said legal acts by the established deadline indicates that the administrative offense is not ongoing.
The Arbitration Court of the Far Eastern District indicated that violation of fire safety regulations is a continuing offense[17]. An administrative penalty was imposed on Artemovsky Bread Factory OJSC, the reason for which was violations of fire safety requirements identified during an inspection carried out from May 27, 2014 to June 17, 2014. The court ruled that “the violations of fire safety requirements committed by the company are ongoing, since they were not due to compliance with fire safety requirements within the established time frame, and were expressed in a long, continuous failure to fulfill the duties assigned to it.”
More often, courts recognize violations in the field of fire safety as ongoing. In particular, the Supreme Court of the Russian Federation, in a case dated July 29, 2016, indicated that the FGKU Rechnoy plant of Rosrezerva violated fire safety requirements, and the Supreme Court recognized this offense as continuing, but it did not justify its point of view[18].
It should be noted that in terms of their structure, offenses in the field of violation of landscaping and violations of fire safety equipment are identical, but the courts are inclined differently to classify the categories of these cases as continuing.
It is also necessary to consider cases under Part 1 of Article 18.8 of the Code of Administrative Offenses of the Russian Federation (evasion of leaving the Russian Federation after a certain period of stay). The Amur Regional Court found that during an inspection of compliance with migration legislation, a citizen of a foreign state, A., was identified who did not leave the Russian Federation after the expiration of his temporary stay (until July 24, 2007)[19]. The lower court (Romnensky District Court) did not recognize this offense as continuing, since it considered it a failure to fulfill the obligation on time and terminated the proceedings. The court referred to paragraph 14 of the Resolution of the Plenum of the RF Armed Forces No. 5, according to which the statute of limitations for bringing to justice is calculated according to the general rules for calculating time limits - from the day following the day the administrative offense was committed (the day the offense was discovered). According to the judge, since the visa expired on July 24, 2007, then a one-year period of time for bringing A. to administrative responsibility under Part 1.1 of Art. 18.8 of the Code of Administrative Offenses of the Russian Federation expired on July 24, 2008.
The judge of the Amur Regional Court said that the offense charged by A. in the field of violation of migration legislation, expressed in evading departure from the territory of the Russian Federation after the expiration of the period of stay, is ongoing, since A. did not fulfill the duties assigned to him by law for a long time.
In another similar case, the lower court (Anzhero-Sudzhensky City Court) also did not recognize evasion from leaving the Russian Federation after a certain period of stay as a continuing offense, since failure to fulfill the obligation provided for by legal acts by the established deadline indicates that an administrative offense is not lasting[20].
But the judge of the Kemerovo Regional Court did not agree with this, arguing his decision by saying that if a foreign citizen did not leave the territory of Russia after the expiration of the period established by law, his actions constitute an administrative offense, the objective side of which is expressed in the stay of such a person in territory of the Russian Federation without documents confirming the right to stay (reside) in the Russian Federation, since a visa or migration card after its expiration cannot be considered documents confirming the legality of a foreign citizen’s stay on the territory of Russia.
There is a decision of the Supreme Court, which considers the case under Part 1.1 of Art. 18.8, but it does not indicate whether the offense is a continuing offense[21].
In 2015, drafts of a new Code of Administrative Offenses were submitted to the State Duma of the Russian Federation for consideration. The draft of Alexander Ageev, a deputy of the State Duma, who introduced the draft Code of the Russian Federation on Administrative Responsibility (hereinafter referred to as the Code of Administrative Responsibility of the Russian Federation), provides for a definition of a continuing administrative offense - “A continuing administrative offense, that is, a single illegal action (inaction) not interrupted in time, provided for any article (part of an article) of the Special Part of this Code or the law of a constituent entity of the Russian Federation on administrative responsibility.” A definition of a continuing offense is also given - “the commission by a person of two or more identical independent unlawful actions (inaction) as episodes of a single unlawful behavior continued over time, qualified under one article (part of an article) of the Special Part of this Code or the law of a constituent entity of the Russian Federation on administrative liability[22 ]".
Also, the draft Code of Administrative Offenses was submitted to the State Duma by deputies V.A. Vasiliev, V.N. Pligin, S.A. Popov, D.F. Vyatkin, V.A. Ponevezhsky. This draft establishes the definition of a continuing offense: “A continuous administrative offense is recognized as a single administrative offense that is not interrupted in time, which is expressed in a long-term continuous failure or improper fulfillment by a person of the duties assigned to him, established by law or other regulatory legal act. An administrative offense expressed in failure to fulfill an obligation stipulated by legal acts by the established deadline is not a continuing offense.” The code also contains a definition of a continuing offense - “a single administrative offense that consists of a number of actions or inactions that are similar in direction and content”[23].
Based on the results of the examples discussed above, we can conclude that under similar circumstances of the case, depending on the discretion of the judge, the same offenses are either classified as ongoing or not, which affects both the outcome of a particular case and the formation of judicial practice for continuing offenses in general. Based on the above judicial practice, it can be concluded that clear criteria for determining a continuing offense in some cases have not been developed. Therefore, there is a need for the above categories of cases to be tried by the Supreme Court so as to clearly indicate to the courts what type of offense they fall into. It is also considered necessary to include definitions of a continuing and continuing offense in the Code of Administrative Offenses of the Russian Federation.
[1] Clause 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2005 N 5 “On some issues that arise for courts when applying the Code of the Russian Federation on Administrative Offences”
[2] Clause 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2005 N 5 “On some issues that arise for courts when applying the Code of the Russian Federation on Administrative Offenses”
[3] Art. 8.14; 8.21 Code of Administrative Offenses of the Russian Federation
[4] Decision in case No. 12-269/16 of the Zlatoust City Court of the Chelyabinsk Region 11/10/2016 // SPS Consultant Plus
Decision of the Supreme Court of the Russian Federation dated October 13, 2016 N 81-AAD16-14 // SPS Consultant Plus
[5] Decision No. 12-21/2015 of the Danilovsky District Court of the Volgograd Region dated 05/08/15. URL: https://sudact.ru/regular/doc/34JJz1Q2l5YW/. Date of access: 05/31/2017
[6] Decision in case No. 12-269/16 of the Zlatoust City Court of the Chelyabinsk Region 11/10/2016 // SPS Consultant Plus
[7] Decision of the Smirnykhovsky District Court of the Sakhalin Region) No. 12-44/2016 dated May 12, 2016 // SPS Rospravosudie
[8] Decision of the Kamchatka Regional Court No. 21-493/2016 dated September 21, 2016. URL: https://sudact.ru/regular/doc/xFNAMK4dluWx/. Date of access: 05/31/2017
[9] Resolution of the Kemerovo Regional Court of October 14, 2015 in case No. 4a-931/2015 // SPS Consultant Plus
[10] Art. 4.1 Code of Administrative Offenses of the Russian Federation
[11] Resolution of the Supreme Court of the Russian Federation dated June 3, 2015 N 303-AD14-5393 in case N A59-1480/2014 // SPS Consultant Plus
[12] Bakhrakh D.N. Problems of ongoing offenses // Modern law. 2005. No. 11. P. 41-42.
[13] Serkov P.P. Administrative responsibility in Russian law: modern understanding and new approaches. M. Norma: INFRA-M, 2012. P. 130
[14]Decision of the St. Petersburg City Court dated October 8, 2015 No. 7-1185/2015 in case No. 12-291/2015 // SPS Consultant Plus
[15] Resolution of the Second Arbitration Court of Appeal dated March 3, 2015 in case No. A28-10559/2014 // SPS Consultant Plus
[16] Decision of the Moscow City Court dated September 26, 2016 in case No. 7-11037/2016 // SPS Consultant Plus
[17] Resolution of the Arbitration Court of the Far Eastern District dated April 15, 2015 N F03-1129/2015 // SPS Consultant Plus
[18] Resolution of the Supreme Court of the Russian Federation dated July 29, 2016 N 310-AD16-2724 in case N A23-4959/2014 // SPS Consultant Plus
[19] Resolution of the Amur Regional Court dated December 17, 2015 in case No. 4A-775/2015 // SPS Consultant Plus
[20] Decision of the Kemerovo Regional Court in case No. 12-555/16 dated June 27, 2016 // SPS Consultant Plus
[21] Resolution of the Supreme Court dated February 24, 2015 N 86-AD15-1 // SPS Consultant Plus
[22] Art. 16 of draft N 917598-6 Code of the Russian Federation on Administrative Responsibility (as amended by the State Duma of the Federal Assembly of the Russian Federation, text as of October 30, 2015)
[23] Art. 3.3 of the Draft Federal Law N 703192-6 “Code of the Russian Federation on Administrative Offenses (General Part)” (as amended by the State Duma of the Federal Assembly of the Russian Federation, text as of 01/20/2015)
How can a person avoid administrative liability?
Administrative charges can be avoided if officials, when drawing up protocols or during administrative proceedings, committed violations of the requirements of administrative legislation, which may lead to the recognition of evidence as inadmissible, and in the absence of evidence, a person cannot be held accountable.
Also, the insignificance of the act committed by an individual, as well as the lack of facts that the individual was previously involved in administrative proceedings, will help to avoid liability.
An individual cannot be held accountable if he was not guilty of committing an offense. If a person acted in a state of extreme necessity, then his actions cannot constitute an offense.
If at the time of committing the offense the person was in a state of insanity, then he is not subject to administrative liability.
IMPORTANT : in certain cases, a person may be exempted from administrative duties, which will avoid liability; on issues of exemption from administrative liability, read the article at the link.
Lawyer for administrative charges in Yekaterinburg
Administrative matters are not as simple as they seem at first glance. In addition, this category of cases has its own specifics, so you should seek legal assistance from those lawyers who specialize in these cases.
In our Law Office “Katsailidi and Partners” there are lawyers, one of whose areas of activity is administrative law and, accordingly, issues of involvement in administrative matters.
By contacting our administrative lawyers, you can use the following services:
- receiving detailed advice on your issue related to involvement in administration
- studying the citizen’s documents related to your involvement in administration
- preparation of objections to involvement in administrative proceedings
- participation of a lawyer as your representative during the consideration of an administrative case
- preparation of a complaint against the act of bringing an individual to administrative responsibility
- collection, request for additional evidence of your innocence
- other legal assistance
Video on the topic
Administrative responsibility
- a type of legal liability that determines the subject’s obligations to endure deprivations of a state-authoritative nature for committing an administrative offense
Features of administrative responsibility
- Nationalization
- Appointed only for administrative offenses
- The subject of liability is determined by a wide range of authorized persons
- Administrative liability applies to non-subordinate persons
- Does not result in a criminal record
- People are often brought to administrative liability through extrajudicial (administrative) procedures.
Kinds
- Administrative responsibility of individuals
- Administrative responsibility of citizens of the Russian Federation
- Administrative liability of foreign citizens, foreign legal entities and stateless persons
- Administrative responsibility of owners (owners) of vehicles
- Administrative responsibility of officials
- Administrative responsibility of military personnel
- Administrative liability of legal entities of the Russian Federation
- Administrative responsibility of owners or other owners of land plots or other real estate
