Evasion of administrative supervision: issues of qualification and law enforcement

Kasnitskaya Inna Yur'evna PhD in Law Associate Professor; Department of Public Order Organization; Tyumen Institute for Advanced Training of Employees of the Ministry of Internal Affairs of the Russian Federation 625049, Russia, Tyumen region, Tyumen, 79 Amurskaya str. kasnitskay@mail.ru

The prevention of recidivism remains a priority in the activities of law enforcement agencies and the State as a whole.

One of the most effective preventive measures aimed at preventing repeat crime is the supervision of persons under administrative supervision.

However, there are gaps and conflicts of legal regulation in the legislation regulating this sphere of public relations, including in terms of prevention and prevention of evasion from administrative supervision.

It should be noted that in the Order of the Ministry of Internal Affairs of Russia No. 1/3615 dated March 28, 2024 "On the comprehensive study of problematic issues of operational and official activities", special attention is paid to the problem of bringing to criminal responsibility persons who evade administrative supervision. This issue is included in the list of priority areas of the department's work for 2024, requiring detailed study and management decisions (the text of the document has not been officially published).

The goals and objectives of the conducted research are to consider and resolve certain problematic aspects of the application of criminal law norms on liability for evasion of administrative supervision.

The methodology of the work is represented by the universal dialectical, logical, statistical, formal legal and comparative legal research methods used.

The expected results are the development of proposals to improve the current legislation, the formulation of ideas for generalization and correct interpretation of it, which may be useful for practicing lawyers, specialists in the field of administrative and criminal law, law enforcement officials.

The issues of evasion from administrative supervision have been the subject of scientific research more than once. In particular, these aspects have been considered at various times in the works of the following authors: Astakhova A.O., Anisimova I.A., Barkhatova E.N., Bitsieva Z.V., Vishnyakova N.V., Druzhinina A.V., Knyazeva I.N., Kurbatova O.V., Yamasheva E.V., etc.

The main provisions on administrative supervision of persons released from places of deprivation of liberty are defined by the first article of Federal Law No. 64-FZ dated April 6, 2011 "On Administrative Supervision of Persons Released from Places of Deprivation of Liberty" (hereinafter – the Law). This law establishes a system of measures to monitor the fulfillment by former convicts of restrictions and requirements that are determined by the court.

The key purpose of such control is to prevent recidivism and administrative offenses, which serves as a guarantee of protecting the interests of society and the state. Law enforcement agencies are entrusted with the functions of supervising compliance with the established restrictions by persons released from places of detention. This contributes to their successful adaptation and minimizes the risks of illegal behavior ^[1].

The main characteristics that define administrative supervision and distinguish it from other forms of public administration can be arranged as follows: a distinctive feature of administrative supervision is its preventive orientation, the purpose of which is to monitor compliance with certain norms and rules. It fulfills the key task of preventing violations of the rule of law, acting as a fundamental aspect of the activities of law enforcement agencies. In this regard, the action of administrative supervision is aimed at ensuring compliance with existing legislative requirements, while its attention is focused on protecting the rights and freedoms of citizens, as well as on respecting the interests of organizations ^{[2, p. 115]}.

The current legislation provides for certain procedures that provide a legitimate basis for achieving the objectives of administrative supervision, and suggest that any activity within its framework should be properly documented. For example, after conducting an appropriate check of the place of residence or location of the supervised person, the district police commissioner must issue an official document confirming his visit to such a person. At the same time, the right to apply administrative supervision is based on the newly emerging probability of re-commission of crimes by persons who have been released from prison.

Article 3 of the Law establishes certain criteria for determining the categories of persons subject to administrative supervision. Recall that the essence of administrative supervision is that it must be established taking into account the specific characteristics of each individual, which includes the establishment of certain restrictions, their number and nature, as well as the duration of supervision and the possibility of its extension or termination. These aspects, emphasizing the importance of a unique approach, are reflected in the first part of article 4 of the Law.

When considering these aspects, the court must take into account many factors. First of all, it is necessary to analyze the characteristics of the person in respect of whom administrative supervision is being established ^{[3, p. 278]}. It is important to take into account his behavior before and after the commission of the crime, as well as to find out information about his marital status and other life circumstances. Secondly, it is necessary to take into account the circumstances of the crime committed. Finally, the restrictions imposed should not prevent the supervised person from engaging in labor and other socially useful activities that can help him adapt, which ultimately helps to prevent the commission of antisocial acts and crimes.

The introduction of amendments to some legislative acts of the Russian Federation by Federal Law No. 514-FZ of December 31, 2014 had a certain impact on the issue under discussion.

This law modified Article 314.1 of the Criminal Code of the Russian Federation by adding a second part, which toughens liability for systematic violation by a supervised person of restrictions imposed by the court.

It is these changes that we would like to pay attention to first of all within the framework of the problem under consideration.

Legal experts note significant transformations in Russian legislation, among which a special place is occupied by the restoration of the classical administrative prejudice in criminal law. The criminal law norm under consideration is an illustrative example of modern legislative trends. It is noteworthy that the legislator has a positive attitude towards crimes with administrative prejudice, which stimulates scientific interest in this issue ^[4].

The amendments made to the Criminal Code of the Russian Federation reflect a course to strengthen punishment for evading the supervision of administrative bodies and emphasize the need for strict compliance with restrictions imposed by the court ^[5].

It should be noted that in the process of applying the legislation, discrepancies are found in the interpretation of the concepts of "repetition" and "conjugacy" between various law enforcement agencies when evaluating actions under part 2 of Article 314.1 of the Criminal Code of the Russian Federation.

Experts note that difficulties in implementing this rule are associated with the multi-stage structure of the criminal act, the presence of subjective evaluation criteria and preliminary administrative proceedings. At the same time, the current Resolution of the Plenum of the Supreme Court of the Russian Federation dated 05/24/2016 No. 21 "On judicial practice in cases of crimes provided for in Article 314.1 of the Criminal Code of the Russian Federation" leaves unanswered a number of controversial points ^{[6, p. 78; 7, p. 120]}.

The study of specific criminal cases clearly demonstrates the lack of a uniform approach to the interpretation of the key features of this corpus delicti.

In 2020, citizen M., who is under administrative supervision, repeatedly violated the restrictions established by the court. Despite the warnings, he was twice brought to administrative responsibility under Article 19.24 of the Administrative Code of the Russian Federation: on March 12 (Part 1) and July 7 (Part 3). The resolutions came into force on March 24 and July 20, respectively.

On the night of July 20-21, 2020, M. again violated the prescribed restrictions by drinking alcoholic beverages in a public place. For this offense, he was prosecuted under Article 20.20 of the Administrative Code of the Russian Federation.

The Fourth Court of Cassation of General Jurisdiction decided to overturn the verdict and the appeal ruling regarding M.'s conviction under Part 2 of Article 314.1 of the Criminal Code of the Russian Federation. The court considered that on July 20, 2020, there was no fact of repeated violation of the ban on staying out at night. According to the court, each previous administrative offense under Article 19.24 of the Administrative Code of the Russian Federation should have been accompanied by illegal actions specified in Part 2 of Article 314.1 of the Criminal Code of the Russian Federation.

However, the Supreme Court of the Russian Federation did not agree with this position and canceled the cassation ruling. In his Ruling dated April 27, 2023, No. 16-UDP23-5-K4 indicated that Part 2 of Article 314.1 of the Criminal Code of the Russian Federation does not require that all previous administrative offenses be necessarily combined with other illegal acts listed in this article.

Consider the following example.

Citizen K. was under administrative supervision with the following restrictions:

– prohibition to leave the place of residence from 22:00 to 06:00;

– mandatory attendance at the internal affairs bodies twice a month.

On October 27 and 28, 2020, K. intentionally violated the restrictions established by the court. For these violations, he was twice prosecuted under Part 3 of Article 19.24 of the Administrative Code of the Russian Federation. The resolutions entered into force on November 10, 2020.

On November 7, 2020, at 22:10, K. committed a new offense – he drank alcoholic beverages on the playground in the yard. By doing this, he violated not only public order, but also the ban imposed by the court on being outside the house after 22:00. An administrative protocol was drawn up for this act under Part 1 of Article 20.20 of the Administrative Code of the Russian Federation.

Thus, K. violated judicial restrictions for the third time, and the last violation was accompanied by an administrative offense against public order.

The Court of Cassation of the fifth instance overturned the verdict of the Mozdoksky district court of the Russian Federation in the case of violation of Article 314.1 of the Criminal Code of the Russian Federation (part 2). According to the Administrative Code of the Russian Federation (Article 4.6), a person is considered to have been subjected to administrative punishment from the moment the relevant decree comes into force until the expiration of a year after the execution of the punishment.

The reason for the cancellation was that at the time of K.'s third violation (November 7, 2020), previous rulings on administrative offenses under Article 19.24 of the Administrative Code of the Russian Federation (Part 3) had not yet entered into force, which happened only on November 10, 2020 (Resolution of the Fifth Cassation Court of General Jurisdiction dated May 11, 2022 No. 77-786/2022).

In order to ensure consistent application of the law in such cases, the Supreme Court of the Russian Federation adopted the relevant Resolution No. 21 dated May 24, 20016 "On Judicial Practice in Cases of crimes provided for in Article 314.1 of the Criminal Code of the Russian Federation" (hereinafter – Resolution No. 21).

It is important to note that this crime is not a simple set of administrative offenses. It is a complex act with certain characteristics and interrelated actions ^{[8, p. 73]}.

Thus, Part 2 of Article 314.1 of the Criminal Code of the Russian Federation establishes mandatory conditions for criminal prosecution.

The key feature of the objective side of the crime is the repeated (italics – ours) failure of the supervised person to comply with the restrictions established by the court. In the absence of repeated prosecution under this article is impossible.

All possible types of administrative restrictions under administrative supervision are clearly defined in article 4 of the Law.

The note to Article 314.1 of the Criminal Code contains a clear interpretation of the concept of "repetition". This concept means a violation by a supervised person of the restrictions established by the court after he has already been brought to administrative responsibility twice within a year under Article 19.24 of the Administrative Code of the Russian Federation (parts 1 and/or 3).

It seems that the existence of a legally defined concept of "repetition" should exclude controversial points regarding its interpretation. At the same time, there are various points of view in the scientific literature in relation to the analyzed feature, with which we cannot agree, due to their inconsistency with the meaning of the law. Thus, A.V. Druzhinin puts forward his own conditions for initiating a criminal case under part 2 of Article 314.1 of the Criminal Code of the Russian Federation. In his opinion, it is necessary:

1) the presence of two administrative offenses provided for in Article 19.24 of the Administrative Code of the Russian Federation committed during the year;

2) the commission of a third violation in one of the following areas:

– management procedure (except for Article 19.24 of the Administrative Code of the Russian Federation);

– Public order and security;

– public health and sanitary and epidemiological well-being;

– public morality ^{[9, p. 58]}.

However, in our opinion, the following interpretation of the conditions for bringing to criminal responsibility in relation to the sign of "repetition" seems to be more justified:

1. The presence of two facts of bringing to administrative responsibility during the year (according to Part 1 and (or) 3 of Article 19.24 of the Administrative Code of the Russian Federation).

2. Compliance with the one-year validity period of administrative penalties for the above-mentioned offenses.

3. The commission of a new (third) violation of administrative restrictions.

An additional prerequisite for bringing a person to criminal responsibility under part 2 of Article 314.1 of the Criminal Code of the Russian Federation is the conjugation (italics – ours) of the third violation with administrative offenses in the following areas: public order and safety; health, sanitary and epidemiological welfare of the population and public morality; management procedure (except for Article 19.24 of the Administrative Code of the Russian Federation).

These offences are contained in Chapters 6, 19 and 20 of the Administrative Code of the Russian Federation and include, for example, such acts as:

– battery;

– illegal use of narcotic substances;

– accommodation without documents;

– illegal use of weapons;

– drunkenness in public places , etc .

It is noteworthy that Article 19.24 of the Administrative Code of the Russian Federation was intentionally excluded from the list, since its violation in itself is a sign of repetition in the actions of the supervised person.

However, the key point here is that the administrative offenses we are considering should have a direct connection with the crime in connection with which criminal prosecution is being conducted, and not just be a violation of administrative rules.

In the criminal legislation of the Russian Federation, related crimes are a complex of criminal actions, where one is the main one, and the others are auxiliary in nature, contributing to its commission. Such a combination of crimes usually entails a more severe punishment. For example, if a murder occurs during a robbery, then the perpetrator is charged both under part 2 of Article 105 of the Criminal Code of the Russian Federation (murder) and under Article 162 of the Criminal Code of the Russian Federation (robbery) ^{[10, p. 66]}.

The Supreme Court of the Russian Federation in its Resolution No. 21 clarifies the concept of "conjugacy" in relation to violations of administrative supervision. According to the document, violation of the established restrictions is considered to be associated with the offenses mentioned in part 2 of Article 314.1 of the Criminal Code of the Russian Federation only if they are committed simultaneously. For example, when violations such as minor hooliganism or appearing in public places while intoxicated are committed:

– in forbidden places;

– during mass events, if there is a ban on their attendance;

– during a mandatory home stay at a certain time of the day.

The following example from judicial practice is indicative in connection with the above.

Thus, R. on March 23 and 28, April 9 and 11, 2022, she repeatedly failed to comply with administrative restrictions established by the court, involving the commission of an administrative offense that encroaches on public order and public safety,

On April 11, 2022, during the time period from 8:00 a.m. to 17:00 p.m., without a valid reason, R. did not appear for registration at the police department, which violated the administrative restriction imposed on her by the court in the form of mandatory attendance at registration in accordance with the schedule of arrival of the supervised person for registration.

At 6:10 p.m. on the same day, she was in a public place intoxicated, insulting human dignity and public morality, for which she was brought to administrative responsibility under Article 20.21 of the Administrative Code of the Russian Federation.

The Sixth Court of Cassation of General Jurisdiction, overturning the verdict, noted that it follows from the case materials that there is no such sign as conjugacy in the act in question, since the offenses were committed not simultaneously, but sequentially, one after another, although within one day, but after a certain time interval (Decision of the Sixth Court of Cassation of General Jurisdiction dated December 6, 2022, No. 77-6202/2022).

Thus, criminal liability under part 2 of Article 314.1 of the Criminal Code of the Russian Federation occurs if a supervised person, who had previously been brought to administrative responsibility two or more times for violating administrative restrictions established by the court, commits any administrative offense provided for in Chapters 6, 19 or 20 of the Administrative Code of the Russian Federation, in violation of one or more administrative restrictions, established by the court.

We absolutely agree with the position of the authors who note that "the sign of conjugacy makes it difficult to qualify under Part 2 of Article 314.1 of the Criminal Code of the Russian Federation, since in some cases a significant number of facts of violations of restrictions established during administrative supervision, but not associated with another administrative offense, does not form the objective side of this composition" ^{[11, pp. 62-63; 12, p. 227]}.

Consequently, the level of preventive action decreases for the guilty supervised person, which can subsequently lead to him committing more serious offenses ^{[13, p. 15]}.

Summing up this study, taking into account the above, we have formulated a proposal to improve the current legislation.

Given the ambiguous interpretation of such a feature of the considered corpus delicti as "... associated with the commission of an administrative offense by this person ...", an important point for solving this problem is to abandon the use of the term "conjugacy" in relation to Article 314.1 of the Criminal Code of the Russian Federation, and to change the wording of part 2 of this article as follows: "Repeated non-compliance by a person with respect to who has administrative supervision, administrative restrictions or restrictions imposed on him by the court in accordance with federal law, provided that this person commits an administrative offense ...".