Article 19.3 of the Administrative Code: should I go to court?

On the evening of December 30, the day of the verdict in the Yves Rocher Case, Moscow police detained about 250 people in the vicinity of Manezhnaya Square. The detainees were taken to 14 police stations, most of them were soon released without drawing up reports. About 70 people were kept under arrest until the morning on charges of disobeying lawful orders of police officers.

The relevant article, 19.3 of the Code of Administrative Offenses, provides for penalties ranging from a fine to arrest and, therefore, allows police officers to extend the period of detention from the standard three hours to two days. The next day, December 31, the Tverskoy District Court of Moscow, which has jurisdiction over the detentions on Manezhnaya Square, considered only two cases. Mikhail Kriger and Roman Nemuchinsky, who, according to others who spent the night at the Meshchansky police station, did not stand out in any way, were sentenced to 15 days of arrest and celebrated the New Year in special detention center No. 2 in Khoroshevo-Mnevniki .

For the remaining detainees who were released pending trial, having asked them to sign an “undertaking to appear” on January 12-19 , we have prepared answers to several pressing questions.

If, after reading this material, you decide to go to court and need the help of a lawyer, leave a request in the “Help yourself” section on our website.

1. What punishment do I face under Article 19.3 of the Code of Administrative Offenses?

Until recently, Article 19.3 of the Code of Administrative Offenses (disobedience to a lawful order of a police officer) provided for punishment in the form of a fine of five hundred to one thousand rubles or arrest for up to fifteen days. In the summer of 2014, legislators added a new, sixth part to it, introducing punishment for “repeated” disobedience to a police officer if it occurred at a public rally. Such an offense provides for much more severe sanctions: a fine of five thousand rubles or arrest for up to thirty days. It is still unclear how the new law will work and how the courts will circumvent the conflicts it creates .

Tatyana Glushkova , senior lawyer of the autonomous non-profit organization “Lawyers for Constitutional Rights and Freedoms” (YURICS):

Repeated commission of an offense should be understood as the commission of an offense within a year after the execution of the punishment imposed under the previous decision (that is, from the moment of payment of the fine or the end of the arrest period). If the police indicated in the protocol that a person is charged with the first part of Article 19.3, then the court does not have the right to reclassify his actions and impute part six, if the fact that the person was prosecuted under this article earlier became clear only in court. On the contrary, the court has the right to reclassify part six to part one. That is, it can improve, but not worsen, the position of the person being held accountable.

As you can see, Article 19.3 gives the courts a very wide discretion when imposing punishment. A person can be fined 500 rubles or imprisoned for 15 days. Based on my practice, I can say that arrest under this article, as a rule, is an exceptional measure that is applied to “particularly distinguished” activists. Everyone else is given fines, the amounts of which are small. As an additional indicator, we can highlight this: if a person was released from the police department before trial, then arrests are almost never used. As a rule, they are appointed only in cases where a person is brought to court directly from the police department the next day after arrest.

2. What is the obligation to appear at the police station?

Alexey Gorinov , lawyer of the Solidarity movement:

You should never sign such things. It is not clear why a citizen should appear at the police station. For what? For what purpose and in what status should he appear? If he is detained, then a report on the arrest must be drawn up; if he is charged with some kind of offense, then there must be a report. And that is all. Why else show up? For what reason, it is unclear.

Maxim Krupsky , lawyer at YURICS:

I have never encountered this in my practice. If there is an official order for what reason a person should have been summoned to the police station, in connection with which, he is given some kind of summons, signed by both the person who issues this summons and the person himself, indicating a clear date, a clear time when the person must arrive - in this case, the person probably has an obligation to appear at the police station. But if this document is drawn up in such a way, as I usually saw, as an obligation to appear in court, when we are talking about some piece of paper on which two words are written that you undertake to appear in court on such and such a date, it is unknown in for some time, no one knows why, then this, naturally, does not carry any legal consequences. Each call to the same police station must have a clear legal basis.

Tatyana Glushkova:

The obligation to appear at the police department in connection with a case of an administrative offense is a document that is not provided for by any current legal act. I don’t know who came up with it, but it was clearly done by analogy with the Code of Criminal Procedure, which provides for the opportunity to oblige a person to appear before an investigator or interrogator. Regardless of how one defines the legal nature of this document, there is no liability for failure to appear under such an “obligation”, and this, it seems to me, is the most important aspect in this case.

Explanation of the Public Verdict Foundation

3. What is a commitment to appear? What kind of subpoena is official?

Alexey Gorinov:

The obligation to appear does not entail any procedural consequences. Only the court itself can oblige you to appear in court. Why is he being signed? This kind of protects both the police and the person who is being held at the police department from not being held until trial. The police also have limited resources to support citizens. If we are talking about Article 20.2, then I usually advise not to sign the obligation to appear, since it has no meaning, and in general it is not even provided for by the law. But when it comes to restricting freedom, a person is charged with part one of Article 19.3, then here it is at the discretion of the detainee himself: if he wants to follow the principle, he may not sign, but then there is no guarantee that he will be released from the police department before the trial. Therefore, in this case, you can sign.

Maxim Krupsky:

The obligation to appear in court is a document that has no legal force for the court or for the detainee. It does not entail any legal consequences, moreover, if there is no evidence in the case file confirming the fact that the court summoned the person with an official summons - this could be a receipt for sending a postal item or a telephone message, whatever - the person has the right to appeal the decision made following a hearing in his absence as illegal and unfounded, since the person will in fact be denied the right of access to justice and the right to access to participate in the court hearing and protect his rights.

Tatyana Glushkova:

In accordance with Article 25.15 of the Code of Administrative Offences, you can be summoned to court “by registered mail with return receipt requested, a summons with return receipt requested, by telephone message or telegram, by facsimile or using other means of communication and delivery that ensure that the notice or summons is recorded and served to the addressee." Thus, on the one hand, the “obligation to appear” still remains a document that is not provided for by any legal act, and on the other, the Code of Administrative Offenses does not contain formal requirements for the document by which a person must be summoned to court. The only important thing is that the fact of notification is documented. Until recently, courts did not consider “undertaking to appear” to be a proper form of notice. However, after the mass arrests in February-March 2014, the opposite practice began to emerge. It cannot be ruled out that the same tactics will be applied to cases in connection with the arrests that occurred on the 30th .

4. Can I be tried in absentia?

Maxim Krupsky:

It depends on what article and depending on whether the court has made any attempt to summon the person to court. If there is evidence that a subpoena was sent to the person, that he was officially summoned to court, that all the necessary conditions were created for the person to exercise his right to participate in the court hearing, then in this case - yes, if he fails to appear several times , if his bringing to the court hearing has not been formalized, then, in principle, they can consider him without him. If we are talking about Article 19.3, if we are talking about an arrest, then the absence of a person does not allow the court to order the arrest of this person in this situation.

Tatyana Glushkova:

Formally, no. In accordance with the Code of Administrative Offenses, when considering a case of an administrative offense that may lead to administrative arrest, the presence of the person held accountable is mandatory. Accordingly, the judge cannot consider the case without your presence. Instead, if you fail to appear without a valid reason, he is obliged to make a decision to bring you to court.

In practice, this never happens, and cases under 19.3 are very often considered in the absence of the persons involved.

5. Does the punishment depend on whether I came to court?

Maxim Krupsky:

According to the law, there is no connection between the imposition of a punishment, the amount of this punishment and the person’s appearance in court, that is, the punishment is imposed only for the act that the person committed at the time the offense was discovered and recorded. Everything that concerns whether a person appeared in court, did not appear, in what form he spoke in court, his attitude towards the judge or anyone - everything that does not relate to the offense cannot be the basis for choosing the amount of punishment and the form of punishment.

Tatyana Glushkova:

Formally and legally , no, it doesn’t depend. In practice, in general, it also does not depend, since if you are not tried immediately after arrest, then arrest, as a rule, is not ordered (“as a rule” in this case means that I am not aware of cases of arrest being ordered in such situations, but I do not I can guarantee one hundred percent that not a single such case has ever happened). Therefore, most likely, your appearance or failure to appear in court will not change anything.

6. So should I go to court or not?

Alexey Gorinov:

If a case has been filed and the court has accepted it for consideration and sets a date for consideration, then, of course, you have to go. But what about it? You must state your position in writing, calmly think through everything in writing, write it down, then by submitting a petition to the judge, attach your written explanations to the case materials.

Maxim Krupsky:

There can be two approaches here. On the one hand, I know the position of lawyers who believe that there is no point in coming to court, since the obligation to appear, as I have already said, is not an official summons. And a person who fails to appear in court in this situation cannot be sentenced to arrest, and most likely the courts will simply issue fines. But, again, this is not known for sure, because in our judicial system everything is possible, and in our country it is quite likely that a person can be sentenced to arrest. Anything can happen here. I do not presume to judge how the courts will act. Formally, they do not have the right to impose a sentence of arrest in the absence of a person, so from this point of view it would be advisable not to appear in court. If there is some ironclad evidence that a person stood next to the place where the action was taking place and did not participate in it in any way, there is a video recording, there is testimony from witnesses, the person himself wants to come to court and defend his position there somehow and participate directly in the court hearing in order to make some motions, for example, or somehow actively participate in the process, then, naturally, it is worth appearing. That is, here the choice is up to the person himself, the citizen himself, the detainee himself. The position of the lawyers, which I first voiced, is, in principle, justified, but if the speech concerned me as a detainee, then I would appear in court in order to somehow justify and defend my position.

7. How to prepare for court?

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