The Code of the Russian Federation on Administrative Offenses stipulates that the absence of an administrative offense means the termination of the case. It is not always that a person against whom a case of an administrative offense has been initiated seeks to have the case dismissed before it is considered. The case may reach the Supreme Court of the Russian Federation. That is, when an appeal against a decision in a case of an administrative offense is already in the final instance. Therefore, lawyers recommend not to despair. And prove your legal position in the courts.
What is the absence of an administrative offense in the Code of Administrative Offenses of the Russian Federation
Among the grounds for termination of administrative proceedings are the absence of an administrative offense and the absence of an offense. And these concepts are not identical. The composition of an administrative offense is a set of mandatory elements. And the absence (lack of proof) of at least one of them allows the person against whom proceedings have been initiated to demand exemption from administrative liability.
Thus, the absence of at least one of the elements (object, objective side, subject or subjective side) is the absence of an administrative offense. Each element of a specific administrative offense is characterized by its own characteristics. Therefore, if you have any difficulties, we recommend contacting the site’s duty lawyer.
The composition of an administrative offense differs from an event as follows. In the first case (composition), there was an illegal act. But one of the required elements is missing. And in the second (event) - this is when the illegal act itself is absent. Or the fact of its existence has not been proven by the authorized body.
Legislative regulation
Circumstances excluding administrative liability are established by the federal Code of Administrative Offences. Regions cannot influence these provisions by adopting their own laws. The same applies to government bodies built in a hierarchical order (for example, FAS or police, etc.).
Authorities have the right to provide explanations on the application of legislation. The most important among them are those given by the judiciary, in particular by the RF Armed Forces. His reviews of practice using specific examples or general explanations in the Resolutions of the Plenums play a serious role; their goal is to unify the application of legislation.
Practical use
The absence of the object of an administrative offense, as a rule, does not occur by itself. Because each article of the Special Part of the Code of Administrative Offenses of the Russian Federation is grouped precisely by type of object. Which are encroached upon by this or that violation. Therefore, this basis occurs together with the absence of the objective side.
The norm of the article of the Code of Administrative Offenses of the Russian Federation contains a description of the objective side. For example, petty hooliganism. It is important for him that a person acts in a public place. And he, for example, “misbehaved” in someone else’s apartment, albeit causing damage. Such actions do not indicate the presence of an offense of petty hooliganism, etc.
The absence of a subject in the Code of Administrative Offenses of the Russian Federation means that for some reason he is not subject to liability. This is underage (16 years), the insanity of an individual. Moreover, it is not necessarily incapacity established by a court verdict. Namely, the impossibility at the time of committing an offense to account for and direct one’s actions.
The most popular way, of course, to dismiss a case is to prove the absence of a subjective side. All doubts are interpreted in favor of the person who is brought to administrative responsibility (Part 4 of Article 1.5 of the Code of Administrative Offenses of the Russian Federation). The one who draws up the protocol on the administrative offense must establish guilt.
The elements of an administrative offense are a set of objective and subjective characteristics established by law that characterize an action (inaction) as an administrative offense.
In accordance with Art. 24.5 of the Code of Administrative Offenses of the Russian Federation, proceedings in a case of an administrative offense cannot be started, and the started proceedings are subject to termination in the absence of an administrative offense. The legal composition of any administrative offense contains 4 elements: object, objective side, subject, subjective side. The absence of an administrative offense means that the procedural event itself in the form of an unlawful act took place, but it lacks any of the specified elements that form the composition. The object of an administrative offense is recognized as social relations protected by law, which the administrative offense encroaches on. The objective side is actions (inaction) that encroach on the object of an administrative offense and cause (create a threat of causing) harm to it. The subject of the offense is an individual (citizen, individual entrepreneur) or legal entity who has committed an administrative offense. The subjective side of the offense is the attitude of the guilty person to the committed act and, in some cases, to its consequences. The subjective side determines the form of guilt of the person brought to administrative responsibility (intention, negligence). An administrative offense is recognized as committed only if all the elements of the offense provided for by law are present (see: paragraph 2 of paragraph 19 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 24, 2005 No. 5 No. On some issues that arise for the courts when applying the Code of the Russian Federation on Administrative Offenses" , paragraph 3, paragraph 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52 “On the application by courts of legislation regulating the financial liability of employees for damage caused to the employer”, Resolution of the Supreme Court of the Russian Federation dated May 25, 2016 No. 205-AD16-4). The absence of an object is usually established simultaneously with the absence of the objective side of the offense (see: Resolution of the Supreme Court of the Russian Federation dated August 25, 2016 No. 44-AD16-25), however, the absence of only an object also entails the termination of proceedings in the case (see: Resolution of the Nineteenth Arbitration Court of Appeal dated 08/15/2018 No. 19AP-3624/2018 in case No. A64-5267/2017). Situations in which the absence of an administrative offense is established, as a rule, come down to the fact that when assessing the time, place, method of committing the act, the consequences that occurred and other significant circumstances, the signs of the objective side of the offense described in the incriminated norm of the Code of Administrative Offenses are not seen (see: Decision of the Moscow City Court dated February 16, 2017 in case No. 7-3344/2017). There is no corpus delicti of an administrative offense if the guilt or innocence of a person has not been established in committing an administrative offense (see: Resolution of the Supreme Court of the Russian Federation dated 02/18/2015 in case No. 307-AD14-8543, Resolution of the Supreme Court of the Russian Federation dated 06/29/2016 No. 308-AD16-6709 on case No. A53-19447/2015, Resolution of the Arbitration Court of the Volga District dated July 13, 2017 No. F06-22351/2017 in case No. A06-11122/2016). The absence of an administrative offense should not be confused with the absence of an administrative offense event (see: Decision of the Khabarovsk Regional Court dated February 24, 2015 No. 21-827/2014). In the first case, a procedural event, assessed from the point of view of the Code of Administrative Offenses, takes place, but liability for it does not occur due to the absence of one or more elements of the administrative offense. And in the case of the absence of an administrative offense event, it is taken into account, for example, the absence of a person’s obligation, for failure to fulfill which administrative liability is provided (See: Ruling of the Supreme Court of the Russian Federation dated June 18, 2019 No. 307-ES19-8311 in case No. A56-80396/2018) . When considering complaints against decisions and decisions in cases of an administrative offense, the proceedings may also be terminated on a special procedural basis (clause 3, part 1, article 30.7, clause 4, part 2, article 30.17 of the Code of Administrative Offenses of the Russian Federation) - lack of proof of circumstances, on the basis of which the ruling (decision) was made. Basically, this basis corresponds to the provisions of Part 4 of Art. 1.5 of the Code of Administrative Offenses of the Russian Federation that irremovable doubts about the guilt of a person brought to administrative responsibility are interpreted in favor of this person (Resolution of the Supreme Court of the Russian Federation dated 04/08/2019 No. 32-AD19-4, Resolution of the Supreme Court of the Russian Federation dated 03/01/2019 No. 24-AD19- 1).
Absence of an administrative offense and insignificance
An authorized official can establish that there is no corpus delicti of an administrative offense only in relation to a specific person. That is, after establishing the identity of the person charged with the violation. And this circumstance is an absolute basis for termination of the case.
The insignificance of an administrative offense means that all elements of the offense have been established. But due to the fact that the harm (threat) of harm turned out to be insignificant, liability is not assigned.
As the practice of considering cases of administrative violations shows, the absence of an administrative offense often has to be proven in court.
The meaning of the right phenomenon
The law is structured in such a way that it is impossible to hold a person or organization accountable if there are partial signs of a violation. Holding people accountable in some cases is either pointless or harmful.
We must not forget the main goals of sentencing:
- prevent new violations;
- protect the interests of society and its individual members.
Involving the culprit without taking into account circumstances that exclude administrative liability makes the implementation of these tasks impossible.
And the imposed restrictions or coercive measures will only lead to additional problems, in particular, the authority of the authorities decreases.
No violation event
There is no action or inaction that could be interpreted as a violation. For example, a driver, in a car, in a parking lot or other place where vehicles are allowed to stop, drinks alcohol. A police officer who notices this has no right to make a claim until the car with the same person driving it moves.
All other information about a person and his car no longer has legal significance.
Changes in legislation
According to the law, cases of administrative liability are terminated or citizens are released from liability if:
- the article of the Administrative Code or other law on the basis of which the case was initiated has been repealed;
- amnesty declared.
Amnesty means the termination of cases under certain articles that have already been started and there is no final decision on them yet. If the cases are considered, citizens are released from punishment. The punishment is canceled in whole or in part.
The amnesty law is issued by the lower house of parliament. It may exclude certain categories of citizens, for example, those who have previously been prosecuted within a year for the same violations.
Urgent necessity
The term is also used in Art. 24.5 of the Code of Administrative Offenses of the Russian Federation and its other provisions. Extreme necessity is the conditions under which causing harm or violating another interest protected by law frees a person from liability.
The threat to individual rights, state or public interests could not be eliminated by other methods. The result of a person's actions or inaction must be proportionate to the harm prevented. The threat eliminated must be real, not perceived. As a rule, we are talking about situations when you need to act quickly and there is no time or opportunity to look for another way out.
For example, when is a driver delivering a person to the hospital exempt from liability for speeding?
- there is a real threat of death or serious deterioration in health;
- There is no other way to deliver a person to the hospital or not do it on time;
- no harm to other people or property is caused.
The actions of a person driving while intoxicated are also assessed.
If at least three conditions are missing, prosecution cannot be avoided.
Limitation periods
What circumstances exclude bringing to administrative liability in addition to those described earlier? Limitation periods and their expiration.
There are two accounting options:
- from the moment the violation was committed;
- from the moment it is identified by the relevant authority.
If it was produced by other officials, the materials are sent to the competent authority. Deadlines also continue to pass.
If the material must be transferred to court, the statute of limitations for bringing to administrative responsibility is 3 months, if another body is 2 months.
If we are talking about a special right (driving transport, other mechanical means, hunting, storing weapons, etc.), the period of time for bringing to responsibility is 12 months from the date of commission or discovery of the violation.
In case of violations of antimonopoly legislation and the commission of certain other violations, the terms are calculated from the moment the decision was made by the commission that identified the violation.
For violations in Antarctica, the calculation of time begins after the materials are handed over to the official.
Thus, the limitation period for administrative liability is taken into account in different ways.
Death of a person or cessation of an organization
The death of a person means the cessation of all his rights and obligations, some of them become an inheritance, some disappear completely. The second option fully applies to any example of administrative responsibility.
If an organization is involved, the death of the director or other official involved releases only them. Proceedings continue with respect to the legal entity.
It is subject to termination from the moment of liquidation of the organization, which is considered to be the cancellation of an entry from the register of organizations, no matter by decision of the court or the founders of the organization.
Circumstances mitigating liability for an administrative offense
They are listed in Art. 4.2. Code. Their presence in the case does not exempt from liability, but the body making the decision, when imposing a punishment, is obliged to choose the most lenient option.
The law does not limit officials to the list from this article or other provisions of the code. As mitigating circumstances, it is allowed to take into account other factors or circumstances not provided for by law. In comparison, aggravating factors are taken into account provided they are directly indicated by the code.
Features of a person’s mental state
When investigating violations, in particular those related to violence or the use of drugs, the mental state of a person is studied.
The law contains the term sanity. He is mentioned in Art. 2.8 and in Art. 24.5 Code of Administrative Offenses of the Russian Federation. This is how the ability to control one’s own actions and be aware of them is assessed. Often in conversations they mention: “as if the mind has gone beyond the mind”, “cloudness of mind” and other similar expressions.
The degree of sanity is determined by the expert's opinion. Insanity is typical for mentally ill people with persistent mental disorders, and for those who temporarily find themselves in such a state.
The cause of temporary insanity is illness, emergency circumstances (violence, threat to the life of a loved one, etc.).
It is determined whether the person was in a painful state at the time of the violation or whether the mental disorder did not have any effect.
Mental disorders are an unstable phenomenon; periods of both enlightenment and exacerbation are observed. A significant proportion of patients experience mental disorders in short periods of time. And just the presence of a disease is not enough to determine the degree of sanity.
