Either incompetence or malice

At the request of OVD-Info, Maxim Krupsky, lawyer of the Moscow Collegium of Advocates Liptser, Stavitskaya and Partners, comments on the new draft Code of Administrative Offenses.

The Duma is now considering the first draft of the new Code of Administrative Offenses, which was submitted in January. The first draft is the general part of the Code of Administrative Offenses, the current draft is the general and special parts. These two projects have a lot of overlap with each other, however, the first project is still under consideration. There are also discrepancies - separate fundamental articles that differ from each other. The most important difference, in my opinion, is this: in the previous draft, a ban was established on sentencing below the lowest limit for gross offenses, that is, all offenses that can be punished by arrest. This was contrary to the decision of the Constitutional Court, on the contrary, allowing punishment below the lowest. In the new draft, this prohibition is absent, that is, it is possible to impose penalties below the lower limit, including under the article, which is now called 20.2. But at the same time, the appointment of a lower limit, according to the text of the draft, is possible only if a fine is imposed. Nothing was said about compulsory work or arrest.

A common refrain has been preserved from the first draft: it is supposed to make the new CAO the younger brother of the Criminal Code, because almost all the institutions that were included in the draft CAO were taken from the Criminal Code. In particular, the institution of the totality of crimes. In Art. 17 of the Criminal Code clearly spells out what it is. The legislator explicitly used this text in the new draft Code of Administrative Offenses.

But the Criminal Code deals with crimes for which a person has not yet been prosecuted. In the Code of Administrative Offenses, the logic should be exactly the same. However, there remains a problem that we have been talking about for quite some time , concerning repetition and repetition. In fact, in theory there can be no repeated and repeated offenses, because, as I have repeatedly written, this is a violation of the principle of equality of all before the law and the principle of not imposing punishment twice for the same offense or crime. In a good way, if a person went out into the street to an inconsistent public event, thus committing, according to the logic of the legislator, an administrative offense, and has already received punishment for it, then the next time the article on committing two or more offenses should not apply to him.

Repeated and repeated violations are not only associated with public events - they are, for example, in the section on violations of the rights of minors. If earlier this principle only surfaced in some bills, now it is spreading and expanding, and this is a very dangerous trend. Obviously, none of those who created this and previous bills, which contained such constructions, understands what they are writing. Either this is incompetence or malicious intent. The principles of equality of all before the law and non-punishment twice for the same thing - this is a general theory of law, these things are taught in the second year of the institute.

The terms "continued offense" and "homogeneous offense" introduced in the draft of the new Code of Administrative Offenses, in fact, never appear in the laws, they do not belong to the general theory of law, and one should not expect anything from them in practice.

This draft code retains the idea that administrative arrest of up to 30 days is imposed for four categories of offenses - violation of the regime of the counter-terrorist operation, violation of the state of emergency, violation of the legislation relating to narcotic drugs, and violation at public events. The legislator essentially equates standing with a piece of paper in a solitary picket in terms of the degree of public harm to serious offenses.

Of the innovations, it is important to note that the period during which a person is considered subjected to administrative punishment for significant and gross offenses is increased to two or three years, respectively. According to the current code, if you were held accountable, for example, as an organizer of a public event, and a decision came into force on choosing a punishment for you, from that moment you are a person held administratively liable. If you are again caught at a public event during the year, you fall under the 8th part of Art. 20.2 of the Code of Administrative Offenses. If a new project is accepted, this period will increase to three years. This means that the likelihood of getting caught for a repeated violation at a rally increases, and therefore, the likelihood that you will subsequently be brought under criminal article 212.1 increases three times , because the number of decisions on administrative liability will accumulate faster.