Once again about Administrative Responsibility

Kurakin Aleksei Valentinovich Doctor of Law Professor at the Department of Administrative and Information Law of the Financial University Under the Government of the Russian Federation 125993, Russia, Moskva oblast', g. Moscow, ul. 125993, Moskva, Leningradskii, 49 kurakinaleksey@gmail.com Other publications by this author

The problem regarding the legal establishment of administrative responsibility in our country cannot be called new in any way. The Code of Administrative Offences of the Russian Federation has been in force since July 1, 2002. Its adoption was preceded by a long and meaningful work of the professional community.    The constituent entities of the Russian Federation have already adopted the relevant Codes or have regional laws on administrative responsibility or administrative offenses.  It can be assumed that by now a two-level system of legislation on administrative offenses (administrative responsibility) has been formed, at the federal and regional levels, nevertheless, both the legislation itself and the phenomenon of administrative responsibility as a whole still attracts the attention of scientists and practitioners today. In this regard, a small in volume, but very informative work by M.S. Studenikina "What is administrative responsibility?" (Moscow: Soviet Russia, 1990. – 128 p.) is more relevant than ever. Therefore, we will ask once again the question, "What is administrative responsibility?" and what is its role and functionality in the system of law enforcement in our country, because many states in their legal system do not have such a type of legal responsibility as "administrative responsibility".                It should be noted that the legal institution we are considering is increasingly affecting ordinary citizens who previously, if they were faced with administrative responsibility, then only for violating traffic rules or were brought to this responsibility for stowaway travel in urban public transport.

However, there were always persons, the so-called "regular customers" of police departments, who got there, as a rule, for the consumption of alcoholic beverages in prohibited places, "domestic rowdiness", etc.

Please note that the term "rowdiness", no matter how everyday and mundane it may seem today, has received its legal consolidation. Thus, according to Part 1 of Article 7.8 of the Perm Krai Law of April 6, 2015 "On Administrative Offenses in the Perm Krai", "Domestic rowdiness", is the commission of actions in protected territories and in protected premises that violate the peace of people and create a conflict situation, accompanied by noise, obscene language and (or) humiliation of human dignity. Such an understanding of the designated act is very similar to petty hooliganism in symbiosis with insults and beatings.    

It should be pointed out that in the Soviet period of our history, as a rule, the application of administrative responsibility measures in everyday life was often limited to responsibility for "family rowdiness", which, in fact, was regarded as petty hooliganism. Thus, administrative responsibility was systematically applied for committing various, but still "minor" violations of public order, as well as for violating traffic rules.

However, there were also very interesting compositions of administrative offenses, the appearance of which at one time in the Administrative Code of the RSFSR is explained by ambiguous social and economic circumstances. So, we can recall the composition providing for administrative responsibility for violating the rules of karate training (Article 177), after its appearance in the Administrative Code, all sports sections in which this martial art was taught were closed in the country. The shortage of food in the Soviet period of our history, as well as the protection of consumer interests, caused the need to establish administrative responsibility for buying bread and other food products in stores for feeding livestock and poultry (Article 152).

Insufficient supply on the consumer market and the high cost of alcoholic beverages contributed to the establishment of responsibility for the purchase of home-made spirits (Article 160). The institution of administrative responsibility was also necessary to ensure the Soviet economic law and order. So at that time, responsibility for small-scale speculation was envisaged, that is, buying and reselling consumer goods and other valuables for the purpose of profit in small amounts (Article 151). 

  There were more than enough such compositions of administrative offenses in the Soviet period of our history, from the position of today they look quite naive. The function of applying administrative liability measures was not given the task of legal "punishment", administrative fines were insignificant, in addition, control over their payment was practically not carried out. Recall that the subjects of administrative responsibility in the Soviet period of our history were only citizens and officials. Today the situation has fundamentally changed. In the conditions of the development of a market economy, legal entities have also become subjects of administrative responsibility. As B.V. Rossinsky noted, "... the institute of administrative responsibility of legal entities, due to the importance of the sanctions applied, becomes a powerful lever of state regulation of the economy. Moreover, this institution has not only a law enforcement aspect, but also a pronounced fiscal orientation" ^[1].                         

   Legal regulation and the application of administrative liability measures have reached a different "qualitative" level and now it is impossible to find a sphere of management or human activity where there would be no protective and coercive potential of this type of legal liability. One can see quite an obvious trend, how the state reacts to almost any problems by either tightening or establishing administrative responsibility, both for citizens and for economic entities – there is both a positive moment and a very negative trend in this process. The negative point is quite obvious – for certain administrative offenses that do not pose any significant social danger, inadequately high administrative fines are provided. For example, according to the Law of Moscow of November 21, 2007 The "Code of the City of Moscow on Administrative Offenses" for non-payment for placing a vehicle in a paid city parking lot provides for an administrative fine in the amount of five thousand rubles (art.8.14). Such regulation of these relations cannot be supported. As A.E. Lunev wrote at the time, "... the practice of getting carried away with administrative fines is negative" ^[2].    

It is obvious that the behavior of people in the public legal sphere, as well as in the places of their extracollegiate communication, has now begun to be quite strictly "regulated" by legal prohibitions and restrictions, as well as administrative liability measures that are established for their violations. Which, of course, cannot cause much support from the half of society that takes a socially active position.  

 Administrative responsibility in its etymological sense does not reflect its content. The possibilities of this type of legal responsibility are much broader than the sphere of public administration, and therefore the term "administrative responsibility" is largely conditional. Although it should be emphasized that the term "administrative responsibility" is quite well-established and euphonious. Administrative responsibility in its essence, as well as the way it affects public relations, is a police responsibility, and the Administrative Code is one of the most important sources of "Police law", and therefore, it seems, it would be possible to introduce into legal circulation such a type of legal responsibility as "Police responsibility". It should be noted that at one time K.S. Belsky attributed administrative responsibility to the method of "Police law", while focusing on the procedural aspect of this type of legal responsibility, pointing out that "... the official assessment of the violator's behavior is an essential element of administrative responsibility" ^[3].

 The indicated approach suggests the need for action in the implementation of administrative responsibility, such a legal principle as "presumption of innocence of the violator". It should be particularly noted that the principle of presumption of innocence in the application of administrative liability measures ensures the operation of other procedural principles, the purpose of which is to protect and protect the rights of the person against whom administrative liability measures are applied.                                                                    It has already been noted that a number of States do not have such a type of responsibility as "administrative responsibility" in their legal system and structure of legal responsibility.

However, there is always a need to differentiate illegal acts and determine adequate penalties for their commission. This served to carry out work on the gradual separation of acts that do not pose (or do not have) a great public danger from offenses that have a significant social danger. As O.F. Shishov noted at the time, "... the necessary condition for the successful fight against offenses, the conditions for the lawful and reasonable application of legal measures of influence continues to be the correct qualification of committed offenses. Therefore, the question regarding the differentiation of crimes and related administrative offenses and the establishment of criteria for this differentiation in each specific case has not only theoretical, but also important practical significance" ^[4]. A similar need was noticed in European countries as early as the nineteenth century, especially in France and Germany.

As A.I. Elistratov wrote, "... in the nineteenth century, in some parts of Germany, the administration used the right to impose penalties for so-called police and fiscal offenses and this was done on the basis of the imperial statute of criminal proceedings. At the same time, the punitive order of the administration was considered as a judicial and administrative act subject to the general requirements of criminal law" ^[5].            

In the future, this experience was used in our country, it is especially noticeable after the judicial reform of 1864. It is from this moment, in fact, that the institution of administrative responsibility originates and develops. As P.P. Serkov noted, "... the institute of administrative responsibility in Russia began to form in the second half of the XIX century, after the adoption in 1864. The Statute of Punishments. Initially, it was the most important component of police and then administrative law and was considered as a mechanism for the implementation of public administration in the field of public order and public safety" ^[6]. 

Note that both in Western Europe and in our country, the development of administrative responsibility was influenced by criminal law. This is largely due to the primacy of the development of the institution of criminal responsibility (criminal punishment), which for many centuries has been harsh, and sometimes inhuman. However, the bourgeois revolutions that swept through Europe in the nineteenth century, the development of the institution of parliamentarism, as well as the emergence of ideas regarding the protection and protection of human rights, caused an objective need to mitigate criminal coercion and the emergence of administrative coercion, or rather, police coercion.

It should be noted that the development of administrative responsibility in the second half of the twentieth century went on in our country in conjunction with criminal responsibility. This is evidenced, in particular, by the decree of the Presidium of the Supreme Soviet of the USSR of July 26, 1966 "On strengthening responsibility for hooliganism." This document provided for liability for both petty and malicious hooliganism. It should be noted that decriminalization also takes place from time to time, and some crimes that do not pose a great public danger pass into the category of administrative offenses. In particular, this can be seen by the example of such administrative offenses enshrined in the Administrative Code as: beatings (6.1.1); insult (5.61.1); slander (5.61), etc.            

  Note that the development of administrative responsibility in our country was initially slow, but this process accelerated significantly after the events of October 1917 and the Bolsheviks came to power. It was for the Bolshevik, and then the Soviet law and order that the institution of administrative responsibility was in great demand. After the end of the civil war, a number of documents were adopted aimed at forming the legal basis of administrative responsibility. Special mention should be made of the decree of the Central Executive Committee, the SNK of the RSFSR of June 23, 1921 "On the procedure for imposing administrative penalties." This document stated that "... administrative penalties are imposed on citizens for violating mandatory local government regulations." We emphasize that it did not contain articles describing objective and subjective signs of a particular composition of an administrative offense. In the designated regulatory legal act, only types of administrative penalties were fixed, in particular, such administrative penalties were provided for as: an administrative fine, imprisonment for up to 2 weeks (administrative arrest); appointment to forced labor without imprisonment for up to 1 month, etc.

The presented document is quite interesting because, despite the harsh time of devastation, famine, the "rampage" of various kinds of infectious diseases, the growth of crime, the bureaucracy that has developed in the country, it secured important guarantees of legality in the application of administrative penalties. Thus, "... a person brought to justice for committing any offense cannot be subject to administrative punishment for the same act." Its provision also looks very relevant, as "... the illegal and imprudent imposition of administrative penalties entails not only the cancellation of recovery orders, but also the bringing of officials guilty of that to court, both on the initiative of individual citizens and by way of supervision." In such a situation, one can see a direct consolidation of the principle of State responsibility in the person of the relevant official to the citizen. It is quite obvious that this principle is very much in demand at the present time, and not only in the scope of the norms on administrative responsibility.           

Of course, it should be noted that the procedural part concerning administrative responsibility was practically absent – it took a very considerable time to develop and normalize it, and the full-fledged procedural aspect of administrative responsibility could only be discussed after the adoption of the Administrative Code of the RSFSR (1984). Among the important regulatory documents regarding administrative responsibility that were in effect in the early periods of Soviet power, one can also include the decree of the Central Executive Committee, the SNK of the RSFSR of July 27, 1922 "Regulations on the procedure for issuing mandatory resolutions and imposing administrative penalties for their violation."

This document has already attempted to consolidate the composition of administrative offenses and refers to the procedural aspect of the application of administrative penalties. Thus, it was stated that "... in case of violation of a mandatory resolution, a protocol is drawn up, which is signed by an official authorized to draw it up, equally by the violator and the witness." In the formation of the legal basis of administrative responsibility, the resolution of the CEC of the USSR, the Council of People's Commissars of the USSR of January 4, 1928 "On limiting the imposition of fines in an administrative manner" is seen as important. This document stated that "... the imposition of administrative fines is allowed if these fines are directly established by law," etc. 

It should be noted that regulatory legal acts providing for administrative responsibility were adopted on topical issues, in particular, those related to ensuring legality and discipline in the field of public administration. On the issue of ensuring law and order in the financial system, the decree of the Central Executive Committee, the SNK of the RSFSR of February 15, 1923 "On the procedure for imposing penalties for violating regulations on indirect taxes (excises)" was adopted.

To ensure road safety and the protection of public order, the decree of the Central Executive Committee, the Council of People's Commissars of the RSFSR of December 1, 1924 "On the procedure for imposing administrative penalties for violating mandatory regulations establishing rules of traffic and order in public places" is adopted.

Attention is also drawn to the fact that the legislation on administrative responsibility (administrative offenses) has not been systematized, and this circumstance always complicates the application of legal norms. In this regard, it is no coincidence that in some republics of the Soviet State, work was carried out on the adoption of an Administrative Code, which would systematize, among other things, the norms on administrative responsibility. Thus, after careful and lengthy rule-making work, the Administrative Code of the Ukrainian SSR (1927) was adopted, and a draft Administrative Code (Charter) was prepared in the RSFSR. As V.M. Kuritsyn noted, "... the development of the draft Administrative Code of the RSFSR began in December 1922 and was carried out for a number of years, but was never completed" ^[7]. 

The reason that the Administrative Code in the RSFSR has not been adopted is the fact that its developers have defined an excessively broad subject of its regulation, and on key issues its actions have not reached the necessary compromise.

  As already noted, the Ukrainian SSR managed to adopt an Administrative Code with a fairly broad subject of regulation. As V.P. Mikhaylenko noted, "... The Administrative Code of the Ukrainian SSR regulated rather complex and diverse relations, which were often solved differently in administrative practice" ^[8]. The subject of regulation of the Administrative Code of the Ukrainian SSR was also administrative responsibility, but it should be understood that the designated object of legal regulation in this Code was far from central. Taking into account the specifics of relations related to the regulation of administrative responsibility, the task of adopting a single codified law in the form of an "Administrative Code" was no longer set in the future, it was decided to follow the path of substantive codification of the norms of administrative law and create a Code of Administrative Offenses.                          

Almost from the very beginning, the development of legislation on administrative offenses of the RSFSR followed the path of decentralized formation, taking into account the interests of national autonomous territorial entities. This trend has also continued in modern Constitutional realities. Thus, according to the Constitution of the Russian Federation, administrative and administrative-procedural legislation is jointly administered by the Russian Federation and the subjects of the Russian Federation (item K. Article 72). In the development of the Constitution, the Administrative Code of the Russian Federation establishes the subjects of jurisdiction of the Russian Federation in the field of legislation on administrative offenses (Article 1.3) and the subjects of jurisdiction of the subjects of the Russian Federation in the field of legislation on administrative offenses (Article 1.3.1).

We emphasize that such two-level regulation, even in a federal state, is not necessary, because it objectively generates contradictions, competition between federal and regional norms, confuses citizens and subjects implementing the norms of legislation on administrative offenses. It is not uncommon for administrative offences to be established in the subjects of the Russian Federation, the dispositions of which either fully or partially reproduce what already exists at the federal level of legal regulation.  Thus, the Law of the Republic of Crimea of June 25, 2015 "On Administrative Offenses in the Republic of Crimea" provides for liability for "... harassment of citizens in public places, that is, violation of public order, expressed in intrusive actions of a citizen carried out against other citizens against their will, for the purpose of buying, selling, exchanging or acquiring things otherwise, as well as imposing other services on them in public places" (Article 7.2 "Molesting citizens in public places"). Such behavior is nothing more than a somewhat detailed "Petty hooliganism", responsibility for which is provided for in Article 20.1 of the Administrative Code of the Russian Federation. The Code of the Republic of Bashkortostan on Administrative Offenses of June 23, 2011 also provides for liability for harassment of citizens for the purpose of fortune-telling, begging, expressed in the actions of a citizen carried out against other citizens against their will (Article 13.3).

 These examples confirm the position that there is a duplication of federal regulations in regional laws, especially when establishing administrative responsibility in the field of public order protection and road safety. The fight against these administrative offenses is carried out by the police. As follows from the Federal Law of February 7 , 2011 "About the police" "... the police in their activities are guided by the laws of the subjects of the Russian Federation on the protection of public order and ensuring public safety, issued within their competence" (Article 3). However, the police implements legislation on administrative offenses of the subjects of the Russian Federation, only if there is a corresponding agreement with the subject of the Federation. Thus, the Administrative Code determines that "... protocols on administrative offenses infringing on public order and public safety provided for by the laws of the subjects of the Russian Federation are drawn up by police officials if the transfer of these powers is provided for by agreements between the Ministry of Internal Affairs and executive authorities of the subjects of the Russian Federation on the transfer of the exercise of part of the powers" (Article 28.3).

It is quite obvious that when articles of the Administrative Code of the Russian Federation and articles of the laws of the subjects of the Russian Federation on administrative offenses collide, federal norms that provide for liability for the corresponding administrative offense should be applied.                    A lot of work is being done to eliminate the conflict situation, however, from a global perspective, it seems appropriate to define in the Constitution of the Russian Federation that administrative and administrative procedural legislation is jointly administered by the Russian Federation and the subjects of the Russian Federation, with the exception of legislation on administrative offenses. Federal legislation on administrative offenses (Administrative Code of the Russian Federation) can quite cope with regulation (establishment of administrative responsibility) both at the federal and regional levels, an example of this is the Criminal Code of the Russian Federation, which establishes responsibility at all levels of legal regulation. And therefore, in our opinion, the legislation on administrative offenses should operate only at the federal level, taking into account both federal and regional public interests.

The expediency of such an approach can also be justified by the fact that in the subjects of the Russian Federation there may be a different understanding of which act should be recognized as an administrative offense, as well as what additional objective features it should have. Also, a large number of norms on administrative responsibility can simply confuse both citizens and subjects implementing the relevant norms.                                              

 A few more theses about the history of the development of legislation on administrative offenses. The decree of the Presidium of the Supreme Soviet of the USSR of June 21 , 1961 is considered an important stage in the development of the legal basis of administrative responsibility . "On further restriction of the application of fines imposed administratively," the designated document can be considered a starting point in the systematization of legislation on administrative offenses, which finally ended in the eighties. This was due to the adoption of the Fundamentals of the Legislation of the USSR and the Union Republics on Administrative Offenses of October 23 , 1980 and the adoption of the Administrative Code of the RSFSR of June 20 , 1984 .   

The development of legislation on administrative offenses, as well as its codification, was preceded by extensive theoretical and practical work, as well as scientific research on the institute of administrative responsibility as a whole. Therefore, we will further focus on the doctrinal analysis of the concept of "administrative responsibility". But before that, we note that substantial work has been carried out to prepare a new Code of the Russian Federation on Administrative Offenses and the Procedural Code of the Russian Federation on Administrative Offenses. These laws, after their adoption, will radically change the approach to the institution of administrative responsibility in terms of its material and procedural support. The adoption of these laws lies mostly in the political plane, since it changes the approach to the implementation of administrative and tort policy, will require significant material and human resources to ensure the implementation of these laws.                       

Returning to the analysis of such a category as "administrative responsibility", it should be noted that the designated definition is investigated both through the material aspect devoted to the issue of administrative coercion, administrative penalties, or administrative sanctions, and through proceedings on cases of administrative offenses. Based on this, let us draw attention to interesting, from our point of view, positions regarding the institution of administrative responsibility. This seems to be necessary to get an answer to the question of what, from a functional and doctrinal point of view, is such a phenomenon as "administrative responsibility".

As you can imagine, there are quite a lot of definitions of administrative responsibility. Thus, A.V. Murashev noted that "... administrative responsibility is a negative state-legal assessment of an administrative offense and the person who committed it. This is manifested by imposing an administrative penalty on the guilty person, entailing for him the obligation to undergo deprivation determined by the authority, within the limits of the sanction of the violated norm, as well as the performance of this duty under the influence of state coercion in order to educate citizens and prevent new offenses" ^[9].                                 

In this definition, the emphasis is placed on the understanding of administrative responsibility through the punishment prescribed by law. This position is generally traditional in understanding the essence of the type of legal responsibility under consideration and, moreover, it has a legal basis. As follows from the Administrative Code, "... administrative punishment is a measure of responsibility established by the state for committing an administrative offense" (Article 3.1). The presented author also points to the functionality of administrative responsibility, saying that it is aimed at educating citizens. Unfortunately, the Administrative Code of the Russian Federation fixes the provision only that administrative punishment is applied in order to prevent the commission of new offenses both by the offender himself and by other persons (Article 3.1).

It seems to us that the functions of administrative responsibility should not be limited only to the prevention of administrative offenses. These functions should include the education of the offender, the formation of the necessary level of legal culture, in addition, the function of administrative responsibility is adequate punishment, taking into account all the circumstances of the committed administrative offense. It is necessary to agree that the execution of the duty of administrative responsibility is currently carried out under the influence of state coercion (Article 20.25 of the Administrative Code).

Quite meaningfully, however, in the spirit of his time, A.I. Galagan defined administrative responsibility. Thus, the designated author wrote that "... administrative responsibility should be understood as the application, in accordance with the established procedure, by an authorized subject of administrative penalties to a person guilty of committing an administrative offense, containing state and public condemnation, censure of his personality and illegal act, expressed in negative consequences for him, which he must fulfill, and pursuing the goals of his punishment correction and re-education, as well as protection of public relations in the field of public administration" ^[10].  In our opinion, we should agree that one of the functions of administrative responsibility is the function of correcting the offender.           

It should also be noted that administrative responsibility is the most meaningful type of state coercion, the implementation of which entails the restriction of the rights of the subject to which it is applied. From the point of view of legality, it is very important that administrative responsibility be applied if there are appropriate grounds. And therefore it is no coincidence that at one time MS Studenikina noted that "... administrative responsibility is a form of state response to an offense. Administrative responsibility is expressed, firstly, in the application of punitive administrative sanctions to the violator, and secondly, the obligation of the guilty person to suffer adverse consequences for his behavior provided for by the sanction of the legal norm" ^[11].

I.V. Maksimov, analyzing administrative punishments, writes that "... administrative responsibility is a special state of restriction of rights and freedoms arising in connection with the commission of an administrative offense by a person, due to administrative prosecution and administrative punishment of such a person" ^[12]. In turn, A.B. Agapov stressed that "... administrative responsibility is ensured through public sanctions, administrative penalties and measures of administrative restraint" ^[13].

From this it can be concluded that the constructive complexity and multifunctionality of the institution of administrative responsibility determines the objective need for proper procedural and organizational support for the implementation of this type of legal responsibility. The approach outlined above speaks exclusively about the coercive aspect of administrative responsibility, which once again emphasizes the organic place of this type of legal responsibility in the system of administrative coercion.             

The issue of administrative responsibility is also considered from a procedural point of view, which helps to distinguish "administrative responsibility" from "administrative punishment". Thus, S.M. Skvortsov noted that "... administrative responsibility and administrative punishment are closely interrelated, but not identical" ^[14].  As the author quoted above wrote, "... the designated categories pursue different goals. So, responsibility, as an official negative assessment of a person's act comes, of course, inevitably, then the penalty is relatively due to certain factors, namely the identity of the perpetrator, the nature of the offense committed." We can agree with this approach, since the amount of administrative punishment is influenced by many subjective and objective factors that are taken into account when assigning administrative punishment. In addition, administrative responsibility determines the procedural form for the imposition of administrative punishment, and also gives the person brought to responsibility the opportunity to protect their rights. Thus, K.S. Belsky wrote that "... administrative responsibility can be defined as the specific situation of the offender, who, along with undergoing administrative and coercive means of influence, exercises his procedural rights to give an explanation on the merits of the violation, a fair and objective assessment by the competent authority of the committed act and correct from a legal and moral point of view application to him administrative punishment" ^[15].

Based on this, it can be concluded that it is not entirely correct to consider administrative responsibility exclusively through administrative punishment, since this does not allow taking into account the procedural potential of this type of legal responsibility.

 Thus, it can be concluded that administrative responsibility is a type of legal responsibility that determines the procedural form for the application of administrative punishment in order to have a fair impact on the offender, to correct his illegal behavior, to educate him in the spirit of legality, as well as to prevent offenses both by himself and by other subjects.