On some features of the recognition of an administrative offense in the field of traffic as insignificant

Sidorov Eduard Tomovich PhD in Law Professor, Department of Administrative Law and Administrative Activities of the Police, Moscow University of the Ministry of Internal Affairs of Russia named after V.Ya. Kikot 143615, Russia, Moscow region, village Staroteryaevo, Mof Mosu Mia str., 1, office 1 Eduard-Sidorov1965@yandex.ru Other publications by this author

Nikonorov Evgenii Anatol'evich Doctor of Pedagogy Head of the Department of Administrative Law and Administrative Activities of the Police; Moscow University of the Ministry of Internal Affairs of Russia named after V.Ya. Kikot 143103, Russia, Moscow region, village Staroteryaevo, Branch Territory str., 1 professornea@mail.ru

Ensuring road safety remains an urgent problem in Russia due to the high level of road traffic accidents. According to statistics for 2023, the number of road accidents (hereinafter referred to as accidents) on Russian roads amounted to more than 132 thousand, in which 166,500 people were injured and 14,504 people died. At the same time, the most common causes of accidents are low traffic discipline on the part of road users and, first of all, on the part of the driving staff.

In these conditions, public authorities take various measures aimed at ensuring road safety (hereinafter referred to as traffic safety). In particular, such measures include:

− the introduction by the legislator of articles containing the composition of administrative offenses in the field of traffic, more severe administrative penalties;

− the establishment by the legislator of criminal liability in the area under consideration in the order of administrative prejudice;

− the growth of administrative offenses detected by authorized persons in this area;

− an increase in the number of installed complexes of special technical means of automatic fixation by executive authorities.

Issues related to the DDA have repeatedly been the subject of consideration at meetings held by the President of Russia and the Government of Russia.

At the same time, in order to comply with the principles of fairness and proportionality when bringing to administrative responsibility, the legislator granted the law enforcement officer a number of significant powers to mitigate the sanctions established in articles of the Code of Administrative Offences of the Russian Federation (hereinafter – the Administrative Code of the Russian Federation) or even release a person from administrative responsibility. As I. P. Dolgikh correctly notes in his work, "domestic lawyers are currently looking for measures that would be a more effective alternative than the imposition of administrative punishment" ^{[5, pp. 1-15]}.

One of such measures provided for by the Administrative Code of the Russian Federation is the provisions of the institute for the release of a person from liability, which contains norms that provide an authorized entity, for example, an official considering an administrative offense case, with the authority to release the person who committed the offense from administrative responsibility due to its insignificance.

Mamatov M. V. and Maslov I. A. in their research note that "guided by the principle of proportionality of state coercion, adequate to the negative consequences of unlawful encroachments, the Russian legislator seeks to avoid excessive use of legal repression, mobilizing resources for effective preventive action" ^{[9, pp.10-17]}.

In accordance with this, the legal norm contained in Article 2.9 of the Administrative Code of the Russian Federation grants the right to authorized entities considering an administrative offense case to make a decision to terminate proceedings in an administrative offense case on this basis and limit themselves to making an oral comment.

At the same time, the insignificance of an administrative offense is a concept of an evaluative nature and is rather vague for a law enforcement officer. As is known, administrative legislation does not have a legal interpretation of the concept of "insignificance of an administrative offense" and criteria for its definition, unlike criminal legislation, where in Articles 14 and 15 of the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation) the legislator distinguishes between categories of crimes. This gives rise to different interpretations of the insignificance of an administrative offense among judges, authorities and officials and contributes to ambiguous law enforcement practice. So, quite often, judges make diametrically opposite decisions in fairly similar cases.

At the same time, official information from the Judicial Department of the Supreme Court of Russia indicates that the number of decisions issued by judges to terminate proceedings in cases of administrative offenses on this basis is increasing every year.

Let's pay attention to the publicly available statistical information. So, if in 2021 in Russia, on the basis of Article 2.9 of the Administrative Code of the Russian Federation, cases of administrative offenses against 81,644 persons were terminated, then in 2022 109,645 persons were already released from administrative responsibility. These data indicate a sufficient prevalence of the use of the legal institution of insignificance of an administrative offense.

As correctly noted by A. V. Popov and I. A. Fomina, this legal institution, which was contained in the RSFSR Code of Administrative Offenses, "has retained its imperfection, which is due to the lack of a legislative definition of the concept and criteria of insignificance" ^{[10, p. 132]}.

In the scientific literature, the problem of applying the provisions of the Administrative Code of the Russian Federation on insignificance has been developed in the works of many scientists. Recently, A. R. Barakhoeva, O. V. Kiryanova, L. A. Lomakina, M. V. Mamatov, I. A. Maslov, A.V. Popov, E. V. Sergeeva, I. A. Fomina, A. P. Shergin and others have published their works on this topic ^{[1, pp. 106-115]}.

Scientists offer various solutions to this problem. For example, E. V. Sergeeva suggests classifying as minor administrative offenses those that are committed by negligence, when the committed act does not contain elements of other offenses ^{[12, pp. 68-70]}.

A. V. Popov and I. A. Fomina, as criteria of insignificance, include such as: "admission of guilt by the person who committed the offense", "absence of circumstances aggravating administrative responsibility" ^{[10, p. 132]}.

At the same time, in accordance with the acts of the supreme judicial authorities, the proposed criteria are included in the range of circumstances that should be taken into account when imposing administrative punishment.

According to O. V. Kiryanova, the criterion for recognizing an administrative offense as insignificant is the type and amount of punishment provided for in the sanction of the article. At the same time, only such a composition of an administrative offense in the field of traffic can be considered insignificant, the sanction of which provides for punishment in the form of a warning or an administrative fine in the amount not exceeding 500 rubles. O. V. Kiryanova refers to Article 2.4 of the Administrative Code of the Russian Federation, where it is determined that a warning is issued in the absence of harm, as well as property damage ^{[7, pp. 49-53]}.

A number of authors propose as a prerequisite for the termination of proceedings on the grounds provided for in Article 2.9 of the Administrative Code of the Russian Federation to take into account the presence of the person being prosecuted during the consideration of the case. At the same time, it should be noted that in accordance with current law enforcement practice, the courts terminate proceedings on this basis regardless of the fact of this person's participation.

According to O. V. Derbina and L. Ch. Kupeeva, an administrative offense committed repeatedly cannot be attributed to minor offenses ^{[4, pp. 31-33]}.

I. N. Ivanenko in his scientific work offers his own criteria for determining the insignificance of an administrative offense. In his opinion, an administrative offense can be classified as insignificant if it does not pose a significant threat to legally protected legal relations. So, for material offenses, this may be expressed in a small amount of damage, and for formal ones – a small degree of public threat. At the same time, administrative offenses that can be recognized as insignificant, in his opinion, should be committed only with a careless form of guilt ^[6].

There are also proposals among scientists to eliminate the institution of exonerating a person from responsibility if the offense is insignificant, since it introduces contradictions into judicial practice. There is a similar position among law enforcement officers. Thus, in a review of the judicial practice of the Arbitration Court of the Kemerovo Region on the application of the provisions of Article 2.9 of the Administrative Code of the Russian Federation, the opinion was expressed that judges, relieving a person from administrative responsibility, thus generate impunity.

As can be seen from the above analysis, there is no consensus on this issue in the scientific community, as well as among law enforcement agencies.

In these conditions, the position of the highest judicial authorities is important for the correct interpretation and application of the norms of the administrative-legal institution of the insignificance of the offense. The clarifications they issue should help the law enforcement officer solve complex problems, as well as fill in the gaps in legislative regulation. It should be noted that for a long time, various higher courts have repeatedly returned to the consideration of this problem. At the same time, an analysis of their acts shows that, unfortunately, the clarifications contained in them do not fully clarify this picture, which results in a rather contradictory judicial practice of district and regional courts.

Thus, in March 2005, the Plenum of the Supreme Court of the Russian Federation adopted a resolution "On some issues that arose in judicial practice when considering cases of administrative offenses." In paragraph 21 of the Resolution, it was stated that "circumstances such as, for example, the identity and property status of the person being prosecuted, voluntary elimination of the consequences of the offense compensation for the damage caused are not circumstances characterizing the insignificance of the offense. By virtue of Parts 2 and 3 of Articles 4.1 of the Administrative Code of the Russian Federation, they are taken into account when imposing administrative punishment." Also, in order to recognize an administrative offense as insignificant, the type of administrative penalties provided for by the sanction for this composition does not matter, i.e. it is possible to recognize as insignificant the composition for which, for example, administrative arrest is provided.

The provisions of the Plenum of the Supreme Court of the Russian Federation under consideration did not sufficiently interpret the legal norm contained in Article 2.9 of the Administrative Code of the Russian Federation. This was the reason that the Plenum of the Supreme Court of the Russian Federation in 2013 proposed an additional clarification and a new version of these provisions.

So, the paragraph was introduced. "a" in paragraph 9 of Resolution No. 40 of the Plenum of the Supreme Court of the Russian Federation dated 12/19/2013 "On Amendments to Resolution No. 5 of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2005, which states that when imposing punishment for offenses provided for in Articles 12.8 and 12.26 of the Administrative Code of the Russian Federation, it should be taken into account that they are not They can be classified as insignificant, and the persons responsible for their commission cannot be released from administrative responsibility.

The attention of the higher judicial authorities to these types of administrative offenses during this period of time is explained by the fact that driving vehicles by drivers who are intoxicated caused an accident with the dead in almost 50% of cases over the past few years.

In this regard, the legislative bodies of state power also had to respond to the difficult situation that had arisen in the field of internal affairs. Therefore, in the Criminal Code of the Russian Federation, Federal Law No. 258-FZ of 07/01/2021 introduced a new corpus delicti provided for in Article 264.1 of the Criminal Code of the Russian Federation "Driving a vehicle under the influence of a person subjected to administrative punishment or having a criminal record." Thus, the legislator established criminal liability for these acts in the order of administrative prejudice.

As for other types of administrative offenses provided for by the Special Part of the Administrative Code of the Russian Federation in general and Chapter 12 in particular, the position of the supreme judicial authorities has not changed.

Thus, the Constitutional Court of Russia in its ruling dated 07.12.2010 indicates that "in the absence of harmful consequences of leaving the scene of a traffic accident that did not cause harm to health and major damage and did not constitute a significant violation of protected public relations, in accordance with Article 2.9 of the Administrative Code of the Russian Federation, a law enforcement agency may be recognized as insignificant and not entail administrative punishment".

These measures taken by public authorities were understandable, necessary and timely. The interaction of the executive, legislative and judicial authorities was aimed at a comprehensive solution to the problem of DDA. The executive branch has identified offenses that lead to accidents with serious consequences. The legislature has tightened legal liability, replacing administrative with criminal liability. The higher judicial authorities have clarified the procedure for considering such categories of cases.

At the same time, studies conducted by the Scientific Center for Road Safety of the Ministry of Internal Affairs of Russia (NC BDD of the Ministry of Internal Affairs of Russia) have shown that offenses such as "entering the oncoming lane" and "exceeding the set speed" are often also the causes that lead to an accident with serious consequences.

The consequence of this was that the legislator made changes to the Criminal Code of the Russian Federation, namely: the elements of crimes provided for in Article 264.2 of the Criminal Code of the Russian Federation were introduced.

The need to make such changes to the Criminal Code of the Russian Federation is understandable. It would also be logical for the Supreme Court of Russia and the Constitutional Court of Russia to prepare explanations on the possibility of recognizing (or not recognizing) these administrative offenses as insignificant.

The approach of the legislator of the Republic of Belarus is interesting, who, dividing administrative offenses into categories, formulated the concept of a gross administrative offense, to which he attributed offenses "for which an administrative penalty is provided in the form of community service, administrative arrest, deprivation of the right to engage in certain activities, as well as the repeated commission of which entails criminal liability." At the same time, the category of an administrative offense does not affect the possibility of exemption from administrative liability if the committed act is insignificant ^[10].

In the course of its preparation, the authors of the article conducted a study to determine the practice of applying the provisions of Article 2.9 of the Administrative Code of the Russian Federation by employees of the State Traffic Inspectorate. To do this, a survey was conducted of employees of the traffic patrol service of the State Traffic Inspectorate using specially designed questionnaires. More than 120 employees from among the middle and senior management personnel serving in units at both the district and regional levels of the subjects of the Russian Federation were interviewed.

During the study, it was found that 73.6% of the surveyed employees do not use the norm provided for in Article 2.9 of the Administrative Code of the Russian Federation in their law enforcement practice, 14.4% use it extremely rarely, and only 12% of the surveyed employees, while on duty, relieved road users of administrative responsibility and limited themselves to making an oral remark to the guilty person.

Thus, it can be concluded that the employees of the State Traffic Inspectorate, being officials authorized to consider and make decisions on cases of administrative offenses within their competence, do not actually use the legal institution of exemption from administrative responsibility if the offense is insignificant.

The survey results are explained by the fear on the part of the senior staff of the State Traffic Inspectorate units that police officers commit corruption offenses.

At the same time, the uncertainty of the provisions established by Article 2.9 of the Administrative Code of the Russian Federation, in our opinion, is the main reason for the non-use by officials of the Department of Internal Affairs of this legal institution, the importance of which can be argued, including by the fact that it was often the subject of consideration by higher courts.

As for the implementation of the institution of exemption from administrative liability in proceedings on administrative offenses by magistrates and judges of district courts, it can be stated that, firstly, the use of the norm of Article 2.9 of the Administrative Code of the Russian Federation has a wide practice among courts of various instances, and, secondly, the decisions of judges are characterized by their ambiguity.

Let's illustrate this thesis with examples from judicial practice.

So, on July 18, 2023 at 07:26 at 45 km. + 750 m a / d M1 "Belarus" in Odintsovo, Moscow region, N., driving an Audi A4 vehicle, hit the toll gate, damaging it, after which she left the scene of an accident, of which she was a participant.

On August 1, 2023, a protocol on an administrative offense was drawn up in relation to N. on the basis of Part 2 of Article 12.27 of the Administrative Code of the Russian Federation. The sanction of this article provides for deprivation of the right to drive vehicles for a period of one year to one and a half years or administrative arrest for up to fifteen days. However, the justice of the peace issued a decision to terminate the proceedings in the case of an administrative offense against N. on the basis of Article 2.9 of the Administrative Code of the Russian Federation due to insignificance.

In substantiating his decision, the magistrate stated that the damage caused was compensated by the guilty person. At the same time, the court believes that the committed offense does not pose a significant threat to the violation of protected public relations in the field of traffic, in connection with which there are grounds for recognizing an administrative offense as insignificant.

From the above example, it can be seen that the decision of the justice of the peace contradicts the current resolution of the Plenum of the Supreme Court of the Russian Federation dated 03/24/2005 No. 5, which explains that voluntary compensation for damage caused by a person who committed an administrative offense is not a circumstance characterizing the insignificance of the offense, but should be taken into account when imposing administrative punishment.

The following example shows us that in a similar situation, the court can make a diametrically opposite decision and, in our opinion, a more reasoned one.

Thus, the basis for bringing a person to administrative responsibility on the basis of part 2 of Article 12.27 of the Administrative Code of the Russian Federation was the judge's conclusions that on September 14, 2021 at 14:21, the driver D., driving a Ford Fusion vehicle, collided with an Opel Zafira Tourer car, after which D. left the scene of the accident, of which she was a participant. The judge of the Second Cassation Court of General Jurisdiction pointed out that leaving the scene of an accident is a gross violation of Traffic Rules, indicating deliberate disregard for the requirements of the law in the field of traffic, as well as based on the nature and degree of public danger of an administrative offense provided for in Part 2 of Article 12.27 of the Administrative Code of the Russian Federation, the grounds for recognizing the specified act as insignificant and exemption in connection with With this, there is no exemption from administrative liability on the basis of Article 2.9 of the Administrative Code of the Russian Federation.

The above examples show that law enforcement officials lack both unanimity in interpreting the provisions of the legal institution of the insignificance of an administrative offense, and uniformity in the practice of applying its norms.

The Constitutional Court of the Russian Federation has repeatedly clarified that the use of the evaluative concept of "insignificance" does not indicate the uncertainty of its content, since "the variety of factual circumstances makes it impossible to establish an exhaustive list of them in the law, and the use by the legislator of the evaluative characteristic is aimed at effectively applying the norm to an unlimited number of specific legal situations."

One cannot disagree with the position of the Constitutional Court of the Russian Federation. However, due to the recent tightening of criminal policy in the field of road safety, expressed in the fact that, in accordance with the established procedure, new elements of crimes provided for in Articles 264.2, 264.3. of the Criminal Code of the Russian Federation were introduced in the Criminal Code of the Russian Federation, in the dispositions of which administrative prejudice was applied. In other words, persons who were previously given administrative punishment within the time limit established by law for committing administrative offenses provided for in Parts 4, 5 of Articles 12.9 and Part 4, 12.15 of the Administrative Code of the Russian Federation are brought to criminal responsibility.

According to the current administrative legislation, even such compositions of administrative offenses can currently be recognized as insignificant, which, in our opinion, is not consistent with the ongoing state policy in the field of internal affairs aimed at tightening legal liability.

Summing up the results of the study, the authors came to the following conclusions.

As was correctly explained in 2020 by the Constitutional Court of the Russian Federation, the Administrative Code of the Russian Federation protects such a wide range of public relations in the field of public administration, which makes it impossible to establish an exhaustive list in the law that can be used to recognize an administrative offense as insignificant.

Therefore, the established law enforcement practice and, in particular, judicial practice show that any minor offenses can be recognized for which administrative penalties are provided, ranging from warning to administrative arrest. Also, the subjects of responsibility can be both individuals, including officials, and legal entities.

At the same time, the higher judicial authorities, in the absence of specific criteria in the legislation for recognizing administrative offenses as insignificant, fill in this gap with explanations regarding those compositions that should not be recognized as insignificant under any circumstances.

This partially solves some problems that arise in judicial practice, but does not bring final certainty to administrative delictology.

In our opinion, administrative legislation should contain some criteria for the possibility of recognizing or not recognizing the composition of an administrative offense as insignificant.

The authors of the article believe that instead of the establishment by the highest judicial authorities of prohibitions on the recognition of specific elements of administrative offenses as insignificant, it is necessary to formulate signs that do not allow it to be recognized as insignificant.

That is, instead of establishing criteria that define an administrative offense as insignificant, to establish signs in the presence of which the offense can be recognized as gross. At the same time, a person who has committed a gross administrative offense cannot be released from administrative responsibility on the basis of Article 2.9 of the Administrative Code of the Russian Federation.

Therefore, it is proposed to introduce two additional norms into the Administrative Code of the Russian Federation. To introduce such a concept as a "gross administrative offense", which should be understood as "administrative offenses, the repeated commission of which entails criminal liability."

And also include in Article 2.9 of the Administrative Code of the Russian Federation the second part containing the following legal norm:

"Persons who have committed such administrative offenses, for which the repetition of their commission entails criminal liability, cannot be released from administrative responsibility in connection with the recognition of an act as insignificant."