Today, one of the unresolved issues of administrative law is the use in practice of the concept of “continuing offense”, which is provided for in part 2 of Article 4.5 of the Code of the Russian Federation on Administrative Offenses (abbreviated as the Code of Administrative Offenses). In this article we will try to delve into this problem and analyze this term. In addition, we consider other aspects of the topic.
Lack of coherence
It is worth noting that differences in the understanding of the term of a continuing administrative offense by judges led to the emergence of a large number of decisions of the Supreme Court of the Russian Federation and the Supreme Arbitration Court. They were called upon to correct earlier mistakes in the interpretation of the law by lower level judges. This entailed a significant increase in the load on the system in general terms and the appearance of a precedent from an actual point of view, since the lack of a clear definition of the concept in the current law forces the judicial authorities in each case to develop an individual approach to the possibility of categorizing certain offenses as continuing.
How to understand the concept of a continuing offense? It is worth noting that this issue is very important, because through Article 4.5 of the Code of Administrative Offenses, the administrative responsibility period is set at 2 months (for certain offenses - one year), which, in accordance with general rules, starts from the day the offense was committed, and when a violation of a continuing nature - from the day it was discovered.
Definition of the offense
You should be aware that a continuing offense under the Code of Administrative Offenses does not have a definition as such. Nevertheless, it is his interpretation that plays a decisive role in imposing an administrative penalty for specific offenses that the court may recognize as continuing. In accordance with the information in paragraph 14 of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 5 dated 03.24.2005, “On Matters Arising in Courts When Using the Code of the Russian Federation on Administrative Offenses,” it should be noted that such an offense of an administrative type (inaction or action) is recognized as continuing. , which is primarily expressed in the ongoing long-term failure to perform or improper performance of duties stipulated by applicable law.
Since the law of the Russian Federation does not give a definition of a continuing administrative offense, and the Resolution of the Plenum of the Armed Forces of the Russian Federation gives a rather vague definition of this type of offense, the judicial authorities interpret the term under study differently. In any case, this leads to the emergence of a significant number of court decisions, as mentioned above. You need to know that the purpose of these judgments is to correct errors in the interpretation of the relevant law by lower courts.
Examples of continuing offenses
The following situation exists: Rosaccreditation made every effort to bring the client to administrative responsibility in accordance with part 1 of article 14.47 (“Violation of the rules for performing certification work or issuing a certificate of compliance subject to violation of legal requirements regarding technical regulation”) and part 3 of article 14.47 (“ Unjustified issuance by a certification institution or refusal to issue a certificate of conformity or unreasonable termination or suspension of a certificate of conformity actions ”) of the Code of Administrative Offenses for the offenses provided for in these articles that were committed more than one year before the formation of the protocols regarding the implementation of these offenses.
It is worth noting that under part 1 of Article 4.5 of the Administrative Code of the Russian Federation, a decision related to an administrative offense case for violation of the current law regarding technical regulation is not issued after one year has passed since the administrative offense was committed. In our case, the client ensured the issuance of a certificate in violation of the law on technical regulation of 08.02.2014, and the protocol on the topic of administrative violation was formed on 04/10/2015.
Thus, based on paragraph 4 of part 3 of article 23.1 of the Code of Administrative Offenses, it can be said that cases related to administrative offenses, which are provided for in article 14.47 of the Code of Administrative Offenses and are committed by individual entrepreneurs or legal entities, are currently being studied by judges of arbitration courts. That is why Rosaccreditation filed an application with the arbitration courts to bring the client to administrative responsibility in accordance with part 3 of article 14.47 of the Code of Administrative Offenses. If we judge the situation from the point of view of an objection to the adoption of the requirements of the Federal Accreditation Service, we can refer to the following list of circumstances:
- The statute of limitation of administrative responsibility is calculated in accordance with the rules for calculating terms of a general nature. In other words, from the day following the day of the administrative offense. The aforementioned provision can be supported by article 4.5 of the Administrative Code of the Russian Federation.
- A non-continuing administrative offense is completed when, as a result of inaction or destructive action on the part of the offender, there are all the signs of an administrative plan violation and its composition provided for by legislation in force on the territory of the Russian Federation.
- The objective aspect of the offense, the liability for which is provided for in paragraph 3 of Article 14.47 of the Code of Administrative Offenses, forms the actions of a structure that is engaged in certification of a document of compliance in terms of violation of the rules established by law.
- In accordance with the relevant provisions of part 3 of the same article, the day the certification body takes the opposite action is the day the certificate was issued on unreasonable grounds (in other words, provided that the current requirements of the regulations of technical importance are violated).
- In accordance with the first part of Article 4.5 of the Code of Administrative Offenses, a decision related to a case of a non-continuing administrative offense cannot be issued for ignoring the current legislation regarding technical regulation if one year has passed since the administrative offense was committed.
- Upon issuance of a certificate subject to a violation of the current regulation law in technical terms, the statute of limitations for administrative nature began, which is defined by part 1 of article 4.5 of the Code of the Russian Federation on administrative offenses for this category of cases. So, at the time of the formation of the relevant protocol, the deadline has already expired.
Answer Rosaccreditation
Rosaccreditation was of the opinion that the period for bringing to administrative responsibility for a continuing offense of a person is not expired. The structure insisted that the offense was ongoing. Her position was reinforced by a list of circumstances:
- The offense, which is provided for in Article 14.47 of the Code of Administrative Offenses, is ongoing, because it is precisely this position that the Supreme Court of the Russian Federation has upheld.
- This is a continuing offense (Code of Administrative Offenses Part 1 of Article 14.47), since the defendant has not been fulfilling or is improperly fulfilling the obligation related to maintaining the implementation of certification work in accordance with the rules without violating applicable legal requirements.It is worth adding that this obligation is legally established.
- The defendant daily committed actions corresponding to the ongoing long-term non-performance of the duties that were assigned to him, without terminating the validity of the certificate of conformity, which was issued in violation of applicable law. So, this offense - lasting under the Code of Administrative Offenses of the Russian Federation (Part 1 of Article 14.47).
How did the situation end?
Since after November 2014 the Supreme Court ceased to attribute violations to continuing in accordance with Article 14.47 of the Code of Administrative Offenses due to the fact that the issuance of the certificate considered above was considered the issue of a certificate, the result of the proceedings was decided in favor of the client. Federal accreditation by the courts was refused to bring the client to administrative responsibility, as they absolutely correctly established that the end of the offense is relevant at the time of issuing the certificate, and another point of view somehow contradicts common sense. Thus, the client did not bear any responsibility for the ongoing offense. As long as the current legislation does not exist the term of the offense of the nature in question, you should pay attention to the judicial practice of the Supreme Court and the judicial authorities of the cassation instance. In addition, in the process of preparing for the trial in a court of law, it is advisable to take into account the current legal position that prevails in this practice.
Detection, termination and termination of an offense
We examined in detail the concept of a continuing administrative offense and the corresponding example. In order to fully understand the essence of this term, you should determine the timing of its beginning, end, detection and termination. So, inaction of a continuing nature is considered the inaction or action, which is based on negligence or intent. In other words, this is the day of detection of a continuing administrative offense. It is advisable to take into account the design and features of administrative structures, where the consolidation of most of the signs is not relevant in the security standards of the Code of Administrative Offenses, but in the regulatory standards of the law relating to different branches of the legislation in force in the Russian Federation. For this reason, a position where the term as a qualified symptom of an offense is considered as setting the calendar date by the legislator (no later than the twentieth day of the next calendar month, until the 15th day of the calendar month that follows the month of shipment of the commodity, and so on) can be considered as very reasoned or the period of time that allows you to identify such a date (no later than forty days from the date of the operation, within fifty days and so on).
The moment of detection of a continuing offense under the Code of Administrative Offenses of the Russian Federation is considered to be the day starting from which the statute of limitations is calculated to bring to account the administrative plan. This provision can be supported by part 2 of article 4.5 of the Administrative Code of the Russian Federation.
Abundance of Definitions
It is necessary to take into account that the Decree of the Plenum of the Supreme Court of the Russian Federation number five in many instances repeats the definition that is given in the Decision of the Plenum of the Supreme Court of the USSR of 03.03.1929. In accordance with this paper of 03.14.1963, a continuing offense is “inaction or an action that involves the failure to fulfill the obligations assigned to the guilty current law under the threat of criminal punishment. ” This interpretation is also associated with the "constant implementation of the composition of a specific criminal act." It is worth noting that paragraphs 1 and 2 of the letter of the State Customs Committee of Russia dated May 27, 2002 No. 01-06 / 20585 “On the classification of administrative offenses as continuing”, which is currently considered to be repealed (since 2005), deserve special attention. In this letter, a continuing offense was interpreted as an offense according to which “an unlawful act is committed continuously in a given period of time”. Moreover, it "continues throughout the entire time from the beginning to the termination of the offense."
The main feature of the offense
Attention should be paid to the most important characteristic of a continuing administrative offense under Article 4.5 of the Code of Administrative Offenses of the Russian Federation. It lies in the difference in the moments of the end of the offense and the termination of the unlawful state (behavior) in legal law. The finished offense is characterized by the absolute implementation of its subjective and objective parties. Then in action you see all the properties of the offense, which are provided by applicable law. Regarding ongoing offenses, the onset of this state is relevant in the formation of the protocol regarding an administrative offense by an authorized person. Only then can the offender be held accountable. It is worth noting that the termination of an unlawful state (behavior) implies that the person no longer carries out any unlawful acts or that the state stops the offense (it must be added that the state here refers to certain authorized structures that are responsible for these issues).
You need to know that the semantic difference between continuing offenses and committed (in other words, violations of a non-lasting nature) is the fact that very often at the time the offense ends in legal terms, the violator of the existing law still reserves illegal behavior, in other words, until the termination of the act fact (until its completion). Thus, in this situation, a violation of a lasting nature is considered to be over, however, inaction or an action of an unlawful nature continues to last until its termination. This approach allows classifying violations of a continuing type into two groups. It is advisable to relate to the first offense, characterized at the time of detection by the termination of unlawful behavior (for example, by decision of the offender). These are complete offenses. The second group - completed on condition of being in a state of unlawful nature.
Continued and ongoing offenses
In modern practice of applying the law quite often there are problems that are associated with a competent definition of the type of administrative offense (namely, it is ongoing or continuing). The importance of correctness is due to the fact that, according to each type, the periods of limitation of bringing to administrative responsibility are calculated in different ways.
In the case of a continuing offense, the limitation period is calculated according to the rules of general importance, in other words, from the day that follows the day the administrative offense (its discovery) is carried out. If the administrative offense is expressed in the form of inaction, the period of prosecution begins from the day that follows the final day of the period provided for the implementation of the corresponding obligation.
In the case of a violation of a continuing type, the beginning of the calculation of the deadlines is the day the administrative offense was discovered (note that the day of detection of this type of offense is the day when the official authorized to draw up a protocol regarding the administrative offense revealed the fact of the violation of the continuing type).
Question of responsibility
You should be aware that throughout the existence of a violation of standards or rules (from the appearance to the completion of this violation) in accordance with applicable law, it should be considered completed in a legal plan. Thus, the offender can be brought to administrative responsibility for the ongoing offense.If, from the moment of the appearance of an action of an unlawful nature, the violator can be brought to administrative responsibility, it is possible that this action will continue to exist until it is terminated upon.
A vivid example of a violation of a continuing nature is the possession of weapons on illegal terms. The beginning of this offense is the moment of the acquisition of a weapon in fact by a person who violates the law. The end of the administrative offense in question is the moment when the weapon leaves the illegal property. The termination of the offense is relevant at one of the following points:
- Due to the good deeds of the culprit (the person independently decides to remove weapons from his own field of activity).
- In connection with the intervention of law enforcement agencies.
- In connection with other circumstances (for example, due to the death of the offender).
It should be noted that in modern legal practice, certain difficulties are observed, which depend on the accuracy of identifying the statute of limitations for holding an administrative plan liable for violations of a continuing nature. In accordance with the legislation in force on the territory of the Russian Federation, after this period, in relation to such an unlawful action, proceedings cannot be started. If its start is already running, you must immediately stop the operation.