The specifics of the subjects of crimes with administrative prejudice in the field of road safety

Erte Dar'ya ORCID: 0009-0008-7369-5452 Graduate student, Department of criminal law, Saint Petersburg University of the Ministry of the Interior of Russia 198206, Russia, Saint Petersburg, Pilyutov Pilot str., 1 ertedaria@yandex.ru Other publications by this author

Currently, criminal policy in the Russian Federation has a tendency associated with the consistent consolidation in criminal legislation of a large number of criminal law norms having an administrative prejudice in their construction. The elements of crimes in the field of road safety are no exception and, in our opinion, most clearly reflect this vector of modern criminal policy.

The need for a criminal legal assessment of a number of repeated malicious violations of the traffic rules of the Russian Federation (hereinafter - the Traffic Rules of the Russian Federation) is due to differences in their harmfulness and the severity of the consequences that can presumably occur as a result of their commission.  Such illegal acts are officially recognized as violations with an increased social risk. These primarily include: driving a vehicle while intoxicated; driving a vehicle by a person deprived of such a right; repeatedly exceeding the set speed; entering a lane intended for oncoming traffic. The reaction of the legislator to the recognition of such offenses as crimes, in the case of repeated repeated commission of similar acts, is natural and well-founded, since they cause high mortality on the roads.  

Despite the evidence of criminalization of the crimes under consideration, there are still opposing points of view in the scientific community on this issue. 

Among scientists, there are opponents of the return of administrative prejudice, whose position is characterized by the phrase "step back into the past" ^[1]. As well as authors who support the proliferation of administrative prejudice in criminal law norms.  It must be said that after many years, the administrative prejudice has become firmly rooted in criminal law, so such discussions lose their relevance and develop into its understanding as a special feature of some criminal law norms and the search for common ways to consolidate and interpret it ^[2].

In the theory of criminal law, many authors have studied the problem of administrative prejudice, such as A.V. Bogdanov, I.O. Gruntov, L.L. Kruglikov, Ch.F. Mustafaev, O.S. Odoev, O.E. Spiridonova, Z. E. Ergasheva, etc. The issues of a special subject in criminal law were developed in the works of G.N. Borzenkov, P.S. Dagel, R.O. Orymbaeva, S.A. Semnova, Yu.V. Tarasova, etc. 

Some problems of criminal liability for violation of traffic rules by a person subjected to administrative punishment or having a criminal record were considered in the works of A.V. Bogdanov, M.V. Baranchikova, K.R. Kolesnik, N.A. Morozova, A.I. Chuchaev, etc.

Nevertheless, the specifics of the subjects of crimes with administrative prejudice in the field of road safety have not yet been theoretically developed, which is an omission, since the study of this area is promising and is of both scientific and practical interest. 

Another controversial issue related to administrative prejudice concerns its place in the construction of the corpus delicti. Thus, according to I.O. Gruntov, "the objective side of the corpus delicti with administrative prejudice consists of a number of identical offenses" ^[3], which indicates the correlation between the author of the administrative prejudice and the objective side of the corpus delicti. Other Soviet scientists also adhere to this position, for example, A.M. Yakovlev, who believes that "if the disposition of the article provides for administrative prejudice, then we are faced with a peculiar form of repetition when the crime consists of a number of homogeneous less dangerous acts" ^[4] and V.P. Malkov, who argues "that there is a complexa (composite) crime that consists of a set of administratively punishable acts" ^[5]. 

Indeed, such an approach is logical, however, it can hardly be perfect, since there cannot be a single intention to commit the first and next acts during the year. In addition, the ratio of administrative prejudice and the objective side of the crime contradicts the principle "no one can be re-convicted of the same crime." 

In our opinion, the administrative prejudice, to a greater extent, correlates with the subject of the crime, in the elements of crimes provided for in Part 1 of Article 264.1, Part 1 and part 2 of Article 264.2 and Part 1 of Article 264.3 The Criminal Code of the Russian Federation (hereinafter – the Criminal Code of the Russian Federation). 

Administrative prejudice influences the specifics of the subject, giving it the characteristics of a special subject. A special subject in the science of criminal law is considered to be a subject in cases "if he has one or more additional signs at the time of the commission of a crime, which determine the possibility of bringing him to criminal responsibility under a specific article of the Criminal Code of the Russian Federation" ^[6].

A specific feature of the subject of crimes with administrative prejudice in the field of traffic is the repetition of offenses, namely, the commission by the perpetrator of the second or third act, depending on the legal situation, with signs of an administrative offense, while having the status of administrative punishment. Administrative punishment represents negative consequences for the violator in the form of additional restrictions or duties that occur after he is brought to administrative responsibility and are valid until the end of the execution of punishment ^[7]. It is difficult not to agree with A.V. Bogdanov that "the legal consequences of administrative punishment have priority in terms of criminalization of the act following it with signs of administrative misconduct, since a legal characteristic of malice appears" ^[8]. It turns out that the repetition of certain administrative offenses in the field of road safety increases the degree of public danger of the subject's actions, characterizes him as a malicious violator, thereby transferring him to the category of criminal offenders. 

Let's consider the specific sign of repetition in more detail. Deliberate disregard by drivers of the established rules, expressed in their repeated violation, may acquire constructive, qualifying significance, and be an aggravating circumstance in articles 264.1–264.3 of the Criminal Code of the Russian Federation. However, there are differences in the grounds for such punishment.

Analyzing Article 264.1 of the Criminal Code of the Russian Federation, it is worth noting that the subject of the crime was previously subjected to administrative punishment for similar actions: driving while intoxicated (Part 1 of Article 12.8 of the Code of Administrative Offenses of the Russian Federation (hereinafter - the Administrative Code of the Russian Federation)) or for failure to comply with the legal requirement of an authorized official to undergo a medical examination for intoxication (Part 1 of Article 12.26 of the Administrative Code of the Russian Federation), or had a criminal record for committing a crime provided for in parts 2, 4, 6 of Article 264, or Article 264.1 of the Criminal Code of the Russian Federation. 

The subject of the crime provided for in Article 264.2 of the Criminal Code of the Russian Federation is a person who was previously subjected to administrative punishment under Part 7 of Article 12.9 or Part 5 of Article 12.15 of the Administrative Code of the Russian Federation in the form of deprivation of the right to drive a vehicle. That is, in order to bring a person to criminal responsibility under Article 264.2 of the Criminal Code of the Russian Federation, it is necessary to establish that he committed acts in the form of exceeding the permitted speed of traffic by more than 60 km/ h or entering a lane intended for oncoming traffic.

It is worth noting that these violations can be combined in any variation, for example, speeding will be criminally punishable, including for a person deprived of a driver's license for driving into the oncoming lane and vice versa. The article criminalizes the third gross violation of traffic rules, since secondary significant speeding or driving into the oncoming lane still constitute an administrative offense (Part 7 of Article 12.9, Part 5 of Article 12.15 of the Administrative Code of the Russian Federation). 

Earlier it was said that in order to constitute a crime in the field of road safety, it is required that the repetition of administrative offenses be committed during the period of administrative punishment. According to Article 4.6 of the Administrative Code of the Russian Federation, a person is recognized as subjected to administrative punishment from the date of entry into force of the decree on the imposition of administrative punishment for committing an administrative offense until the expiration of one year from the date of the end of the execution of this decree ^[9].  In this regard, we highlight another feature of the subject of crimes with administrative prejudice in the field of traffic - the period of repetition of administrative incidents. 

The calculation of the term is illustrated by an example: 
On August 1, 2023, employees of the state automobile inspectorate drew up an administrative protocol on exceeding the established speed limit by 81 km/h for the offense of citizen A., the case was considered in court on August 10 and qualified under Part 7 of Article 12.9 of the Administrative Code of the Russian Federation as repeated exceeding the set speed of a vehicle by more than 80 kilometers per hour, On August 11, citizen A. received a copy of the decision and decided to appeal within the prescribed 10 days. He filed a complaint on August 20, the court of appeal considered it until August 30 and upheld the first decision.  In accordance with paragraph 1 of Article 209 of the Civil Procedure Code of the Russian Federation, the court's decision entered into force on September 30, 2023. It turns out that if citizen A. commits a repeat violation before September 30, 2024, his actions will be qualified under Part 1 of Article 264.2 of the Criminal Code of the Russian Federation.

The subject of the crime provided for in Article 264.3 of the Criminal Code of the Russian Federation is a person driving a vehicle with the status of administrative punishment. That is, a person who was previously deprived of the right to drive vehicles and subjected to administrative punishment under Part 4 of Article 12.7 of the Administrative Code of the Russian Federation. At the same time, a necessary condition is illegal driving of a vehicle for the third time, where two previous similar facts have already entailed administrative liability.

Based on the basic dialectical methodology of the study, we conclude the concept of a subject of crimes with administrative prejudice in the field of road safety – this is a sane individual who, at the time of the commission of the crime, reached the age established by the Criminal Code of the Russian Federation, subjected to administrative punishment once under Part 1 of Article 12.8 of the Administrative Code of the Russian Federation, Part 1 of Article 12.26 of the Administrative Code of the Russian Federation, Part 7 of Article 12.9 or h. 5 of Article 12.15 of the Administrative Code of the Russian Federation and twice under Part 7 of Article 12.9, Part 5 of Article 12.15 of the Administrative Code of the Russian Federation within the prescribed period (1 year from the date of entry into force of the decree on the imposition of administrative punishment).

It seems that the elements of crimes analyzed in this study constitute a radically new system of criminal law norms in the field of road safety, including not only administrative prejudice, but also criminal. This thesis requires further scientific evaluation and development.

The personal characteristics of the offender also have an impact on the specifics of the subject. 

In criminological science ^[10], subjects of crimes with administrative prejudice in the field of road safety have such features as legal nihilism; overestimation of one's driving skills; lack of fear of administrative punishment; risky driving, lack of understanding of the importance of traffic rules; condescending attitude towards alcohol and drug intoxication and arrogance regarding driving in an altered state.

Unfortunately, the statistics of committed crimes with administrative prejudice in the field of road safety indicate that enforcement measures in the fight against these incidents are not enough. Malicious violators of traffic rules with an increased social risk are not stopped by the status of administrative punishment, nor punishment in the form of deprivation of the right to drive vehicles, nor the presence of a criminal record. A comprehensive approach is needed to the solution, which will not be limited to criminal legal consequences, but will eliminate the root causes of criminal behavior. 

The use of sociological methodology in this study is not accidental, its application in a general sense allows criminal law to be considered in isolation from society. And in particular, on the basis of elements of sociological methodology, the relationship of the subject of crime with administrative prejudice in the field of road safety and public institutions is investigated, in order to develop methods for preventing, suppressing and minimizing the crimes under consideration. 

The public plays an important role in influencing the subjects of crimes under consideration, since individuals and organizations that are not related to the authorities can inspire them with greater trust and have authority for them. 

A preventive measure to prevent the crimes in question may be the development of new, more stringent methods for obtaining driver's licenses by persons, namely with the involvement of public structures, as observers during exams. In the process of training itself, it is necessary to focus on measures of administrative and criminal liability for violation of traffic rules, demonstration of photographs of road accidents and other effects on the emotional and volitional sphere of the individual. 

Thus, we present the following conclusions:

1. The subject of crimes with administrative prejudice in the field of road safety is a sane individual who has reached the age established by the Criminal Code of the Russian Federation at the time of the commission of the crime, subjected to administrative punishment once under Part 1 of Article 12.8 of the Administrative Code of the Russian Federation, Part 1 of Article 12.26 of the Administrative Code of the Russian Federation, Part 7 of Article 12.9 or Part 5 of Article 12.15 of the Administrative Code of the Russian Federation and twice according to Part 7 of Article 12.9, Part 5 of Article 12.15 of the Administrative Code of the Russian Federation within the prescribed period (1 year from the date of entry into force of the decree on the imposition of administrative punishment).

2. The administrative prejudice correlates with the subject of the crime and influences its specifics, giving it the characteristics of a special subject. The specificity of the subject of crimes with administrative prejudice in the field of road safety is represented by the frequency of administrative offenses, the period during which these offenses were committed and the personal characteristics of the malicious violator.  

3. Involving the public as observers of the examination processes for obtaining driver's licenses, curators of future drivers and work with malicious violators can have a beneficial effect on changing negative personal characteristics in the field of road safety.