Features of consideration of cases on challenging the laws of the subjects of the Russian Federation on administrative offenses

Sultanov Kamil' Arifovich PhD in Economics Associate Professor, Associate Professor of the Department of Public Law and Legal Support of Management, State University of Management, (Moscow) Moscow Ryazan Avenue, 99 mpkr@mail.ru Other publications by this author

In the course of implementing the legislation of the subjects of the Russian Federation on administrative offenses, theoretical and practical problems of determining the ratio of powers of a regional and federal legislator in establishing administrative responsibility very often arise. This topic has been very controversial and relevant for a long time.

Special theoretical and practical proposals on this topic have been repeatedly expressed by well-known administrative scientists, such as: M.Ya. Maslennikov, O.S. Rogacheva, B.V. Rossinsky, N.G. Salishcheva, M.V. Kostennikov and A.V. Kurakin.

As it is known, before the entry into force of the Code of Administrative Offences of the Russian Federation, the subjects of the Russian Federation did not have the prescribed powers to form and implement the above legislation together with the federal legislator. Back in 2001, many deputies of the State Duma of the Russian Federation spoke in favor of depriving the subjects of Russia of the authority to issue administrative and tort laws.

However, there are other opinions. Yu.M. Kozlov believed that it was impossible to find substantial grounds for depriving the subjects of the Russian Federation of these rights. He said that with the help of the administrative and tort law of the subject of the Russian Federation, law enforcement is carried out in areas of public relations that are closest to the needs and needs of the population. Yu.M. Kozlov thereby once again emphasized the need for legal protection of vital and necessary objects of economic, cultural, climatic, geographical, social, managerial and other orientation for residents of the regions, characterizing the individuality and originality of the subjects of the Russian state. In addition, the main or, as V.D. Sorokin wrote: the "fundamental" provision on the basis of which the legislation on administrative offenses includes the Administrative Code of the Russian Federation and the adopted laws of the regions on administrative offenses is the Code itself, namely part 1 of Article 1.1. Dignity of the Administrative Code of the Russian Federation, D.N. Bakhrah also noted. According to the professor, the code clearly indicated for which offense an act of a federal subject can establish administrative responsibility, what penalties can be imposed for the relevant offense and who has the right to impose administrative sanctions for violation of regional laws.

Since 2015, the issues of abolishing some norms of regional laws have been resolved through administrative proceedings. It was this year that the Code of Administrative Procedure of the Russian Federation came into force.

Administrative cases on challenging normative legal acts adopted by state authorities of a constituent entity of the Russian Federation are considered by courts according to the rules of Chapter 21 of the Code of Administrative Procedure of the Russian Federation (hereinafter also – CAS RF).

The guidelines for which the regulatory legal act is being checked are contained in Article 213 of the CAS of the Russian Federation. The characteristic procedural features of the resolution of administrative disputes related to the recognition of normative legal acts as invalid, introduced by Chapter 21 of the CAS of the Russian Federation, are typical for the group of disputes under consideration.

We note the rules of generic jurisdiction, the impossibility of filing counter administrative claims, the deadline for filing an administrative claim with the court for invalidation of a normative legal act, which is determined by the entire period of validity of a normative legal act, conducting business through representatives with higher legal education, special requirements for the content of an administrative statement of claim in terms of mandatory indication of a normative legal act of great legal force, which is contradicted by the contested act, that is, in fact, the legal basis of the claim, an exhaustive list of preliminary protection measures in the form of a ban on applying the contested norm against the administrative plaintiff.

One of the key issues that arise when considering administrative cases on invalidation of normative acts adopted by public authorities of the subjects of the Russian Federation is the question of the competence and authority to adopt such an act. Abuse of authority by a subject in legal regulation, intrusion into the sphere of federal jurisdiction, may be the basis for recognizing the relevant legal act as invalid.

The corresponding explanation, ensuring the unity of law enforcement practice, is contained in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 12/25/2018 No. 50 ^[1]. However, the answer to such a possibly obvious question is not so obvious.

Often, the most difficult thing is precisely to establish the presence or absence of powers, circumstances of compliance or non-compliance with the limits of competence of the public authority of the subject in the field of lawmaking.

The topic of the delimitation of powers of the Russian Federation and its subjects, which is relevant, is also addressed in theoretical circles, advocating the attribution of the general principles of taxation and fees in the Russian Federation to the exclusive jurisdiction of the Russian Federation ^[2], the development of a model law that allows improving the legal acts of the regions, the introduction of a comprehensive assessment of the regulatory impact of regulatory legal acts in the field of environmental safety ^[3], for the legislative specification of the powers of state authorities of the Russian Federation, subjects of the Russian Federation, local governments, as well as improving the effectiveness of quality control of the exercise of delegated powers ^[4], which deserve attention and approval not only in the areas of legal relations indicated by the authors.

It is impossible not to agree with the opinion that the legislative body of state power of a constituent entity of the Russian Federation is created to adopt regulations, laws that reflect the needs of residents of this particular region, consistent with the interests of the country as a whole ^[5].

Let us turn to the analysis of the practice of implementing this approach by the courts on the example of consideration of quite characteristic administrative cases that were resolved in various regions of Russia.

Checking the results of the primary legal regulation of one of the subjects of the Russian Federation, the courts also expressed the opinion that social support for citizens is jointly administered by the Russian Federation and the subjects of the Russian Federation, and federal legislation does not contain instructions on the form and mechanism of providing social support measures in the form of compensation for housing and communal services for disabled people, thus the subject authorized to independently regulate these relations ^[6].

The situation of additional legal regulation of the issue regarding the technical characteristics of containers and bunkers for the accumulation of solid municipal waste was resolved in favor of the government of the subject of the Russian Federation, since this issue was not settled at the federal level and was within the competence of the subject ^[7].

In the case of challenging the norm that regulated relations in the field of communications by establishing mandatory requirements for the design and operation of communication lines by telecom operators, the courts, on the contrary, came to the point of view that, by virtue of Article 71 of the Constitution of the Russian Federation, Article 6 of the Federal Law "On Communications", public authorities of a subject of the Russian Federation are not entitled to regulate relations in the field of communications, therefore, such issues do not fall within their competence ^[8].

As we can see, the algorithm of reflection when studying the results of the normative activity of a subject of the Russian Federation is exactly this: it is necessary to correlate whether the legal regulation of disputed legal relations relates to joint management or independent management of a subject of the Russian Federation, and then establish whether there is federal regulation, which aspects are ordered directly in the federal law, whether the act of primary regional rulemaking corresponds to the provisions of federal law.

At the same time, the duty of the subject of the Russian Federation remains to bring the normative act adopted by it into compliance with the federal law after the implementation of federal regulation. Another group of administrative cases that cannot be ignored when examining the practice of reviewing administrative cases related to rulemaking at the regional level is administrative cases on challenging normative legal acts in the field of legislation on administrative offenses.

Thus, when resolving administrative cases on challenging normative acts establishing administrative responsibility at the regional level, two directions were subject to research: firstly, the availability of authority to adopt regulatory prohibitions, norms, rules for which administrative responsibility was established and the actual availability of authority to establish administrative responsibility. An illustration may be a case of challenging a regional law, according to which violation of the deadlines established by the authorized executive body of state power for payment of the cost of moving a detained vehicle to a specialized parking lot entails the imposition of an administrative fine.

In circumstances where the obligation to pay the cost of moving and storing a detained vehicle within the time limits determined by the subject of the Russian Federation was established by part 11 of Article 27.13 of the Administrative Code of the Russian Federation, that is, at the federal level, the courts established that administrative liability can only be established by federal law. In addition to the above, a judgment was made, which we share, that even the absence at the federal level of a regulatory legal act providing for administrative responsibility for non-fulfillment of this obligation does not indicate in such circumstances the right of a subject of the Russian Federation to carry out its own legal regulation of legal relations in this area ^[9].

Let's consider a few more examples in which the courts analyzed in detail the problems of the correlation of law-making powers of subjects of various levels of the public authority system in establishing administrative responsibility. In cases of challenging the act, which established administrative responsibility for the placement of vehicles on lawns and playgrounds, the courts proceeded from the following.

The position of the administrative plaintiff was reduced to arguments about the abuse of authority by the subject of the Russian Federation and the contradiction to Article 12.19 of the Code of Administrative Offences of the Russian Federation, which provides for liability for violation of the rules of stopping and parking vehicles. Based on the provisions of Federal Law No. 131-FZ "On the general Principles of the organization of local self-government in the Russian Federation", the courts consistently established whether the regulation of legal relations in the field of landscaping belongs to the powers of the subject of the Russian Federation and local governments, found out whether the rules established by the norms on landscaping affect relations in the field of road safety, are they identical to the prohibitions established by the Traffic Rules approved by the Decree of the Government of the Russian Federation dated 10/23/1993 No. 1090.

As part of the resolution of such administrative cases, the courts came to the point of view that these powers are not of federal importance, they are attributed to a joint range of issues that make up the general sphere of law-making activity. Due to the fact that the rules and regulations prohibiting the placement of vehicles on lawns, areas with green spaces, as well as on children's and sports grounds are provided for by regulatory legal acts of this subject of the Russian Federation, a law-making initiative to introduce administrative responsibility by specifying in the disposition of an article on an administrative offense specific illegal actions that exclude the coincidence of signs of the objective side an administrative offense established by the law of a subject of the Russian Federation, with signs of the objective side of an administrative offense, the responsibility for which is provided for by the Administrative Code of the Russian Federation, is committed by a subject of the Russian Federation within the competence ^[10].

I would like to consider the specifics of establishing administrative responsibility by regulatory legal acts of the subjects of the Russian Federation through the prism of the following specific situation ^[11]. In some regions, law enforcement officers have faced the problem of bringing to administrative responsibility persons who are naked on beaches in the summer.

The federal legislator in Chapter 20 of the Administrative Code of the Russian Federation, which unites the rules of conduct for which administrative responsibility in the field of public order and public safety is established, does not introduce responsibility for such a violation as being in public places without clothes ^[13].

Based on the agreed approaches, it is proposed to discuss the issue of the permissibility of regulating these legal relations at the regional level. Is it possible to introduce bans on being naked in public places at the regional level? Does such regulation belong to the joint or exclusive jurisdiction of the Russian Federation? Does it contradict the approaches formulated at the federal level? If we turn to the legislative practice of the Republic of Crimea, the Law of the Republic of Crimea "On Administrative Offenses in the Republic of Crimea" contains a norm regulating administrative offenses in the field of public order protection, defines administrative responsibility for molesting citizens in public places.

The regional regulatory act does not contain any other types of administrative offenses in the field of public order protection. In one of the regions, a legislative initiative was put forward regarding the introduction of administrative responsibility for appearing in public places in the nude ^[12].

However, we are not aware of the final version of this act at the moment. The current federal legislation does not contain direct restrictions and prohibitions regarding being naked in a public place. The rules for the use of beaches in the Russian Federation, approved by Order of the Ministry of Emergency Situations of Russia dated 30.09.2020 No. 732, do not contain either the specified rules of conduct or responsibility for violating public order on the beach, since they regulate other legal relations with a different purpose of exercising state control over the safety of people on water bodies.

We believe that these judgments allow us to think about the possible regulation of citizens' behavior in public places, detailing the concept of "public place" at the federal or regional level. In this coordinate system, I would like to subject to wide discussion the legality of establishing administrative responsibility at the regional level for being in a public place, in particular, on the beach in the nude, if the relevant rule is established by a regulatory act of the subject of the Russian Federation or a hypothesis and disposition in the regulatory act of the subject providing for administrative responsibility is formulated accordingly? In fact, it is in such situations that the competence of the subject is properly implemented, public legal relations are regulated in a timely and relevant manner, and a timely response to society's requests is provided.

Thus, in the course of the study, the main directions of solving the problems of identifying the correlation between the powers of a regional and federal legislator in establishing administrative responsibility were identified by the courts.

In conclusion, without insisting on the indisputability of the proposals made, I would like to express the hope that the topics raised will contribute to additional in-depth understanding and development of legal relations in the field of rulemaking at the regional level, including from the point of view of judicial norm control.

The main conclusion of the conducted research is the current existence of judicial practice in challenging the laws of the subjects of the Russian Federation on administrative offenses contrary to federal legislation. Despite detailed checks of the laws before adoption, the problem of the existence of illegitimate regional laws remains very relevant. The novelty of the study lies in assessing the current state of legislation and judicial practice of its implementation, which will undoubtedly eventually lead to the development of the above-mentioned scientifically sound proposals for additional in-depth understanding and development of legal relations in the field of rulemaking at the regional level, including from the point of view of judicial norm control.