Note 1
Violation by a supervised person of the restrictions and duties accompanying administrative supervision gives reason to believe that he still poses a danger to society, since he is not able to obey such social regulators as legal norms and government regulations. Violation of duties and administrative restrictions serves as the basis for the application to the supervised person of liability measures provided for by the norms of various branches of law.
First of all, these are the norms of administrative law that regulate public relations in the field of public administration. Responsibility for violations of the administrative supervision regime is established by the Federal Law itself. We have already completed an abstract
Regulatory legal acts of the Russian Federation in more detail from 04/06/2011 No. 64-FZ “On administrative supervision of persons released from prison”, as well as the Code of the Russian Federation on Administrative Offenses On this topic, we have already completed the
abstract
Administrative responsibility under the Code of Administrative Offenses in more detail.
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Considering the danger posed by some of those who have served criminal sentences, and in an effort to protect society from their repeated attacks, the legislator also introduced criminal liability for violations of administrative supervision. Formally, the object of a criminal attack is the generally binding nature of a court decision, which imposes obligations and restrictions on the supervised person. But we can say that a violation of the administrative supervision regime is “putting in danger” a wide range of protected social relations, the “first sign” of possible crimes.
Division of responsibility for violating quarantine
Code of Administrative Offenses of the Russian Federation
Article 6.3. Violation of legislation in the field of ensuring sanitary and epidemiological welfare of the population
1. Violation of legislation in the field of ensuring the sanitary and epidemiological well-being of the population, expressed in violation of existing sanitary rules and hygienic standards, failure to comply with sanitary, hygienic and anti-epidemic measures, -
2. The same actions (inaction) committed during a state of emergency * or when there is a threat of the spread of a disease that poses a danger to others, or during the period of restrictive measures (quarantine) in the relevant territory, or failure to comply within the prescribed period with an order issued during the specified periods a legal order (resolution) or requirement of a body (official) exercising federal state sanitary and epidemiological supervision to carry out sanitary and anti-epidemic (preventive) measures -
THAT IS, RESPONSIBILITY IS ESTABLISHED:
— for failure to comply with the SPM in the “usual mode”;
- for failure to comply with the SMP:
+ during the state of emergency*
+ if there is a threat of the spread of a disease that poses a danger to others
+ during the period of implementation of restrictive measures (quarantine) in the relevant territory
*in the Federal Law on SEBN there is no regulation of emergency situations
Federal Law of March 30, 1999 N 52-FZ
“On the sanitary and epidemiological well-being of the population”
Article 1. Basic concepts
For the purposes of this Federal Law, the following basic concepts are used:
sanitary and anti-epidemic (preventive) measures - organizational, administrative, engineering, technical, medical, sanitary, veterinary and other measures aimed at eliminating or reducing the harmful effects of environmental factors on humans, preventing the occurrence and spread of infectious diseases and mass non-infectious diseases (poisonings) ) and their liquidation;
restrictive measures (quarantine) - administrative, medical, sanitary, veterinary and other measures aimed at preventing the spread of infectious diseases and providing for a special regime for economic and other activities, restricting the movement of the population, vehicles, cargo, goods and animals;
Article 5. Powers of the Russian Federation in the field of ensuring the sanitary and epidemiological well-being of the population
The powers of the Russian Federation in the field of ensuring the sanitary and epidemiological well-being of the population include:
— adoption of federal laws and other regulatory legal acts of the Russian Federation in the field of ensuring the sanitary and epidemiological well-being of the population;
— introduction and abolition of restrictive measures (quarantine) on the territory of the Russian Federation;
Article 6. Powers of the constituent entities of the Russian Federation in the field of ensuring the sanitary and epidemiological well-being of the population
The powers of the constituent entities of the Russian Federation in the field of ensuring the sanitary and epidemiological well-being of the population include:
— adoption, in accordance with federal laws, of laws and other regulatory legal acts of the constituent entity of the Russian Federation, control over their implementation;
— introduction and abolition of restrictive measures (quarantine) on the territory of a constituent entity of the Russian Federation on the basis of proposals and orders of chief state sanitary doctors and their deputies;
Article 29. Organization and implementation of sanitary and anti-epidemic (preventive) measures
1. In order to prevent the occurrence and spread of infectious diseases and mass non-infectious diseases (poisonings), the sanitary and anti-epidemic (preventive) measures provided for by the sanitary rules and other regulatory legal acts of the Russian Federation must be carried out in a timely manner and in full, including measures for the implementation of sanitary protection territory of the Russian Federation, the introduction of restrictive measures (quarantine), the implementation of production control, measures regarding patients with infectious diseases, medical examinations, preventive vaccinations, hygienic education and training of citizens.
3. Sanitary and anti-epidemic (preventive) measures are carried out without fail by citizens, individual entrepreneurs and legal entities in accordance with the activities they carry out, as well as in the cases provided for in paragraph 2 of Article 50 of this Federal Law.
Article 50. Rights of officials exercising federal state sanitary and epidemiological supervision
2. When a violation of sanitary legislation is detected, as well as in the event of a threat of the emergence and spread of infectious diseases and mass non-infectious diseases (poisonings), officials exercising federal state sanitary and epidemiological supervision have the right to give citizens and legal entities instructions that are mandatory for them to fulfill within the established time limit. deadlines:
on eliminating identified violations of sanitary and epidemiological requirements;
on stopping the sale of products that do not meet sanitary and epidemiological requirements, including food raw materials and food products;
on carrying out additional sanitary and anti-epidemic (preventive) measures;
on conducting laboratory examinations of citizens who have been in contact with patients with infectious diseases, and medical observation of such citizens;
on the performance of work on disinfection, disinfestation and deratization in foci of infectious diseases, as well as in territories and premises where conditions for the emergence or spread of infectious diseases exist and persist.
Article 31. Restrictive measures (quarantine)
2. Restrictive measures (quarantine) are introduced (cancelled) on the basis of proposals, orders of chief state sanitary doctors and their deputies by a decision of the Government of the Russian Federation or an executive body of a constituent entity of the Russian Federation, a local government body, as well as a decision of authorized officials of a federal executive body or its territorial bodies, structural divisions in charge of defense and other special purpose facilities.
Eg.
Order of the Government of the Russian Federation dated March 27, 2020 N 763-r “On temporary restrictions on traffic through road, rail, pedestrian, river and mixed checkpoints across the state border of the Russian Federation, as well as through the land section of the Russian-Belarusian state border>
Order of the Government of the Russian Federation dated March 16, 2020 N 635-r (as amended on March 25, 2020) <On the temporary restriction of entry into the Russian Federation of foreign citizens and stateless persons and the temporary suspension of the registration and issuance of visas and invitations>
3. The procedure for implementing restrictive measures (quarantine) and the list of infectious diseases, in the event of a threat of occurrence and spread of which restrictive measures (quarantine) are introduced, are established by sanitary rules and other regulatory legal acts of the Russian Federation.
Decree of the Government of the Russian Federation of January 31, 2021 N 66
The Government of the Russian Federation decides:
The list of diseases that pose a danger to others, approved by Decree of the Government of the Russian Federation of December 1, 2004 N 715 “On approval of the list of socially significant diseases and the list of diseases that pose a danger to others” (Collected Legislation of the Russian Federation, 2004, N 49, Art. 4916), add paragraph 16 as follows:
"16. In 34.2 coronavirus infection (2019-nCoV).”
Decree of the Government of the Russian Federation of August 19, 2005 N 529
“On the organization and control over the introduction and lifting of restrictive measures (quarantine) as prescribed by the territorial body exercising state sanitary and epidemiological supervision”
1. Establish that in the event of a threat of the emergence or spread of infectious diseases on the territory of a constituent entity of the Russian Federation, the executive body of the constituent entity of the Russian Federation, on the basis of an order from the territorial body exercising state sanitary and epidemiological supervision, within 24 hours is obliged to:
— make a decision on the introduction of the necessary restrictive measures (quarantine) throughout the entire territory of the corresponding subject of the Russian Federation or in the territory of certain districts, cities, settlements of a given subject of the Russian Federation;
Order of the Ministry of Health and Social Development of the Russian Federation dated December 29, 2006 N 886
“On approval of the Administrative Regulations of the Federal Medical and Biological Agency for the performance of the state function of preparing proposals for the introduction (cancellation) of restrictive measures (quarantine) in serviced organizations and in serviced territories”
(Registered with the Ministry of Justice of the Russian Federation on January 26, 2007 N 8848)
7. If there is a threat of the emergence of mass infectious diseases in the serviced organization, which can cause significant economic damage and cause negative social consequences, or their spread beyond the serviced organization, an official of the territorial body of the FMBA of Russia prepares a reasoned decision on the need to introduce restrictive measures (quarantine) in the organization ) and immediately issues an order to introduce restrictive measures (quarantine) in the serviced organization. The order is handed over to the head of the organization against signature within an hour.
8. If there is a threat of the emergence of mass infectious diseases in the serviced territory, which can cause significant economic damage and cause negative social consequences, or their spread beyond the serviced territory, an official of the territorial body of the FMBA of Russia immediately (by fax or e-mail) sends materials to the FMBA of Russia operational epidemiological analysis with justification for the need to introduce restrictive measures (quarantine) in the serviced territory. (Certificate about the epidemic situation in the serviced area.)
10.
The order (by fax or e-mail) is sent within an hour to the executive authority of the serviced territory, the regional (interregional) department of the FMBA of Russia, the department of the Federal Service for Supervision of Consumer Rights Protection and Human Welfare in the constituent entity of the Russian Federation, as well as the Main State Sanitary doctor of the Russian Federation, the Ministry of Health and Social Development of Russia and the Government of the Russian Federation.
SO, OM (quarantine) is a special case of SPM.
OM (quarantine) should be introduced:
- or regulatory legal acts of the Russian Federation in relation to the entire territory of the Russian Federation;
- or by regulatory legal acts of the executive authority of a constituent entity of the Russian Federation throughout the entire territory of the constituent entity or its part.
Code of Administrative Offenses of the Russian Federation
Article 1.3. Subjects of jurisdiction of the Russian Federation in the field of legislation on administrative offenses
1. The jurisdiction of the Russian Federation in the field of legislation on administrative offenses includes the establishment of:
3) administrative liability on issues of federal significance, including administrative liability for violation of the rules and regulations provided for by federal laws and other regulatory legal acts of the Russian Federation;
THUS, Art. 6.3 (part 1 and part 2) can ONLY be applied in case of violation of FEDERAL rules (restrictions).
Code of Administrative Offenses of the Russian Federation
Article 20.6.1. Failure to comply with the rules of conduct in case of an emergency or threat of its occurrence
1. Failure to comply with the rules of conduct when introducing a high-alert regime in the territory in which there is a threat of an emergency situation, or in an emergency zone, with the exception of cases provided for in Part 2 of Article 6.3 of this Code, -
This provision introduces liability for violations of the FEDERAL Rules of Conduct.
Decree of the Government of the Russian Federation of 04/02/2020 N 417
“On approval of the Rules of Conduct, mandatory for citizens and organizations, upon the introduction of a high alert regime or emergency situation”
In accordance with Article 10 of the Federal Law “On the protection of the population and territories from natural and man-made emergencies,” the Government of the Russian Federation decides:
3. When a high alert regime or emergency situation is introduced in the territory where there is a threat of an emergency situation, or in an emergency zone, citizens are obliged to:
a) comply with public order, the requirements of the legislation of the Russian Federation on the protection of the population and territories from emergency situations, on the sanitary and epidemiological well-being of the population;
b) comply with the legal requirements (instructions) of the head of emergency response, representatives of emergency operational services and other officials carrying out measures to prevent and eliminate emergency situations (hereinafter referred to as authorized officials);
c) upon receipt of instructions (instructions) from authorized officials, including through the media or telecom operators, to evacuate from the territory where there is a threat of an emergency situation, or from the emergency zone and (or) use collective and individual means protection and other property (if provided by executive authorities of the constituent entities of the Russian Federation, local government bodies and organizations) intended to protect the population from emergency situations;
d) if a victim(s) are discovered, take measures to call authorized officials and, before their arrival, if there is no threat to life and health, provide first aid to the victim(s);
e) have with you and present, at the request of authorized officials, an identification document of a citizen, as well as documents (if any) giving the right not to comply with the requirements established by subparagraph “c” of this paragraph and subparagraphs “b” and “c” of paragraph 4 of these Rules.
4. If there is a threat or occurrence of an emergency, citizens are prohibited from:
a) create conditions that hinder and complicate the actions of authorized officials and public transport workers;
b) go beyond the fence marking an emergency zone or other dangerous zone;
c) carry out actions that pose a threat to one’s own safety, life and health;
d) carry out actions that create a threat to the safety, life, health, sanitary and epidemiological well-being of other persons located in the territory where there is a threat of an emergency situation, or in an emergency zone;
e) disseminate knowingly false information about the threat or occurrence of an emergency.
Federal Law of December 21, 1994 N 68-FZ
“On the protection of the population and territories from natural and man-made emergencies”
Article 10. Powers of the Government of the Russian Federation in the field of protecting the population and territories from emergency situations
Government of the Russian Federation:
a) issues, on the basis of and in pursuance of the Constitution of the Russian Federation, federal laws and regulations of the President of the Russian Federation, decrees and orders in the field of protecting the population and territories from emergency situations and ensures their implementation;
a.1) decides to introduce a high alert regime or an emergency situation throughout the entire territory of the Russian Federation or in its part in the event of a threat and (or) occurrence of an emergency situation of a federal or interregional nature;
a.2) establishes mandatory rules of conduct for citizens and organizations when introducing a high alert regime or emergency situation;
Article 11. Powers of state authorities of the constituent entities of the Russian Federation and local governments in the field of protecting the population and territories from emergency situations
1. State authorities of the constituent entities of the Russian Federation:
l) make decisions to classify emerging emergencies as regional or inter-municipal emergencies, introduce a high alert or emergency regime for the relevant government bodies and forces of the unified state system for the prevention and response to emergency situations;
s) establish mandatory rules of conduct for citizens and organizations when introducing a high alert regime or emergency situation in accordance with subparagraph “m” of this paragraph;
t) taking into account the characteristics of an emergency situation on the territory of a constituent entity of the Russian Federation or the threat of its occurrence, in pursuance of the rules of conduct established in accordance with subparagraph “a.2” of Article 10 of this Federal Law, they may establish additional rules of conduct mandatory for citizens and organizations when introducing high alert or emergency mode in accordance with subparagraph “a.1” of Article 10 of this Federal Law.
SO, the GHG regime is being introduced by the Government of the Russian Federation.
A subject of the Russian Federation can introduce a GHG regime and additional requirements for the Rules of Conduct ONLY if there is a decision of the Government of the Russian Federation to establish a GHG regime throughout the entire territory or territory that includes this subject of the Russian Federation.
The Government of the Russian Federation has not introduced the GHG regime on the territory of the Russian Federation and anywhere in its constituent entities.
Code of Administrative Offenses of Moscow
Article 3.18.1. Violation of the requirements of regulatory legal acts of the city of Moscow aimed at introducing and ensuring a high alert regime in the territory of the city of Moscow
2. Failure by citizens to comply with the requirements of regulatory legal acts of the city of Moscow aimed at introducing and ensuring a high alert regime on the territory of the city of Moscow, including failure to ensure a self-isolation regime, if these actions (inaction) do not contain a criminal offense or do not entail administrative liability in accordance with Code of the Russian Federation on Administrative Offences, -
Law of the Moscow region
“Code of the Moscow Region on Administrative Offences”
Article 3.6. Violation of the requirements of regulatory legal acts of the Moscow region aimed at introducing and ensuring a high alert regime in the territory of the Moscow region
2. Failure by citizens to comply with the requirements of regulatory legal acts of the Moscow Region aimed at introducing and ensuring a high alert regime in the Moscow Region, including failure to ensure a self-isolation regime, if these actions (inaction) do not contain a criminal offense or do not entail administrative liability in accordance with Code of the Russian Federation on Administrative Offences, –
There is NO regulation of the GHG regime in the Federal Law on SEBN.
Thus, liability under this rule can only arise in case of violation of the ADDITIONAL Rules of Conduct established by a subject of the Russian Federation when the Government of the Russian Federation introduced the GHG regime ON THE TERRITORY OF THIS SUBJECT OF THE RF.
Another comment on Art. 314.1 of the Criminal Code of the Russian Federation
1. The objective side consists of two alternatively specified acts: a) failure to arrive, without good reason, of a person subject to administrative supervision upon release from prison, to his chosen place of residence or stay within the period determined by the administration of the correctional institution. This inaction consists of a violation of the obligation established by clause 1, part 1, art. 11 Federal Law of April 6, 2011 N 64-FZ “On administrative supervision of persons released from prison”; b) unauthorized abandonment by such a person of his place of residence or stay, committed for the purpose of evading administrative supervision. In this case, the person leaves the place of residence or stay in violation of the order established by Part 1 of Art. 11 of the said Federal Law.
2. The subjective side is characterized by guilt in the form of direct intent, and in case of unauthorized leaving of place of residence or stay - also for the purpose of evading administrative supervision.
Methodology for investigating evasion of administrative supervision
Chapter 1
Forensic characteristics of evasion of administrative supervision
There is no consensus in the legal literature regarding the concept and content of the forensic characteristics of crimes. Without going into a discussion on this issue, we note that in our work we will adhere to the opinion of A.G. Filippova.
According to his point of view, the forensic characteristics of crimes can be defined as “a set of features inherent in a particular type of crime that are of greatest importance for the investigation and determine the use of forensic methods, techniques and means”[2].
In its content A.G. Filippov includes the following elements:
“1) the direct subject of the criminal offense;
2) the method of committing and concealing the crime;
3) the circumstances under which the crime was prepared and committed (time, place, conditions for protecting the object, etc.);
4) features of the traces left by criminals (the mechanism of formation in the broad sense);
5) the identity of the criminal and the victim”[3].
In legal literature, the subject of criminal encroachment
is understood as an object of the material world, which is directly influenced by the criminal in order to achieve his criminal result and contains the largest amount of evidentiary information necessary for solving and investigating the crime [4].
As for crimes related to evasion of administrative supervision, in this case, in our opinion, there is no subject of criminal encroachment. When committing crimes of this type, the guilty person does not have any impact on any objects of the material world, but violates social relations associated with the execution of justice.
Yes, Art. 11 of the Federal Law “On Administrative Supervision of Persons Released from Places of Deprivation of Liberty”[5] imposes the following responsibilities on the supervised person:
1) arrive within the period determined by the administration of the correctional institution to his chosen place of residence or stay after release from places of imprisonment;
2) to appear for registration with the internal affairs body within three working days from the date of arrival at his chosen place of residence or stay after release from prison, as well as after a change of place of residence or stay;
3) appear for registration with the internal affairs body at the place of temporary stay within three days if, due to exceptional personal circumstances, permission is received from the internal affairs body to stay outside the residential or other premises that are the place of residence or stay, and (or) to short-term travel outside the territory established by the court;
4) notify the internal affairs body at the place of temporary stay about leaving for the place of residence or stay, if the supervised person was at the place of temporary stay due to exceptional personal circumstances;
5) notify the internal affairs body at the place of residence or stay within three working days of a change of place of residence or stay, as well as a return to the place of residence or stay, if the supervised person was absent due to exceptional personal circumstances;
6) notify the internal affairs body within three working days about employment, change of place of work or dismissal from work;
7) allow employees of internal affairs bodies to enter residential or other premises that are a place of residence or stay at a certain time of the day, during which this person is prohibited from staying outside the specified premises.
appear when summoned to the internal affairs body at the place of residence or stay within the period determined by this body, give explanations orally and (or) in writing on issues related to compliance with the administrative restrictions established by the court and the performance of duties.
Thus, on the basis of this law, the supervised person enters into certain social relations with law enforcement agencies, which carry out the functions of law enforcement in the process of implementing court decisions. But these social relations are the object of a criminal attack, and not its subject, and are a criminal legal category. In this case, there is no direct subject of the criminal offense.
Method of committing the crime
. The method of committing a crime is understood as “a system of actions to prepare, commit and conceal a socially dangerous act, determined by environmental conditions and personality traits that can be associated with the use of appropriate tools, means, conditions of place and time”[6].
However, this structure of the method of committing a crime is not inherent in all types of crimes. Some of them lack a method of concealing the crime, and some of them are committed without preparation[7].
Evasion of administrative supervision can be accomplished in the following ways:
1. Failure to arrive without good reason at the chosen place of residence or stay within the period determined by the administration of the correctional institution.
2. Unauthorized leaving of place of residence or stay.
Criminal liability for these acts occurs provided that they were committed in order to evade administrative supervision.
3. Repeated failure by a person subject to administrative supervision to comply with administrative restrictions or restrictions imposed on him by the court in accordance with federal law, associated with the commission by this person of an administrative offense against the management procedure (with the exception of the administrative offense provided for in Article 19.24 of the Code of the Russian Federation on administrative offenses), or an administrative offense encroaching on public order and public safety, or an administrative offense encroaching on the health, sanitary and epidemiological well-being of the population and public morality.
As for the failure of a person subject to administrative supervision to arrive at his chosen place of residence or stay, Federal Law No. 64 of April 6, 2011[8], which regulates in detail public relations in connection with the implementation of administrative supervision of persons released from places of deprivation freedom, in Article 11, paragraph 1.1, directly instructs the supervised person to arrive within the period determined by the administration of the correctional institution to his chosen place of residence or stay after release from places of imprisonment.
In this regard, a person released from prison and in respect of whom administrative supervision has been established by the court is obliged to arrive at his location, register with the relevant internal affairs body, comply with the restrictions specified in the court decision, and lead a working life , submit to moral, ethical and other standards of behavior in society during the period of supervision. Violation of these requirements is grounds for criminal prosecution.
However, in all cases of non-arrival of a supervised person at a certain place, it is necessary to find out the reasons for his delay.
Only such circumstances that do not depend on his will and determination can be considered valid reasons. These include difficult weather conditions, natural disasters, interruptions in vehicle traffic, illness of the supervised person or other health problems that prevent him from arriving at his chosen place of residence or stay. In addition to this, other circumstances may arise, but most importantly, they must really prevent the supervised person from fulfilling the order issued by the administration of the correctional institution.
Thus, the failure of a supervised person to arrive at the place of residence or stay may consist of:
- unauthorized delay in transit (along the route I stopped at relatives, acquaintances, people with whom I previously served a sentence, etc.).
As an example, we can cite a criminal case against gr. S., who, after being released from prison, was supposed to arrive at his place of residence. But he went to his aunt, stayed with her for one month, after which he moved to his friends and only two and a half months later he arrived at his place of residence[9].
- notification to the administration of the correctional institution of a false address where he allegedly intends to live after release.
Yes, gr. F., after administrative supervision was established against him, informed the administration of the correctional institution that he intended to live with his relatives after his release. However, after his release, he left in an unknown direction and was discovered by law enforcement officers two months later in a completely different area[10].
As for the unauthorized abandonment of the place of residence or stay by a supervised person, it may consist of the following:
— leaving for another temporary place of residence or stay without notifying the internal affairs body;
- unauthorized change of permanent residence or stay without notifying the internal affairs body;
- leaving the place of residence or stay during the period of time during which it should remain there;
- leaving in an unknown direction.
It should be noted that in all of these cases, criminal liability can only arise when a person, when committing these acts, pursues the goal of evading administrative supervision. In the absence of such a goal, the listed actions entail only administrative liability.
Direct actions for the unauthorized leaving of a supervised person’s place of residence or stay as a method of committing crimes of this type are as follows.
Travel to a temporary place of residence or stay can only be carried out with the permission of the internal affairs bodies and only in exceptional cases due to personal circumstances.
Federal Law No. 64-FZ of April 6, 2011 provides an exhaustive list of such circumstances:
1. death or life-threatening serious illness of a close relative;
2. the need for the supervised person to receive medical care, as well as undergo treatment in health care institutions, if this assistance and treatment cannot be received at the place of residence or stay of the supervised person or within the territory established by the court;
3. the impossibility of further residence of the supervised person at the place of residence or stay due to a natural disaster or other emergency circumstances;
4. the supervised person undergoes training outside the territory established by the court;
5. the need to pass entrance exams upon admission to an educational institution;
6. the need to resolve the following issues during employment:
a) reporting to the employment service authorities for registration and further interaction with these authorities in order to find a suitable job or register as unemployed, if there are no relevant employment service authorities within the territory established by the court;
b) passing a preliminary interview;
c) undergoing a mandatory preliminary medical examination (examination) necessary for concluding an employment contract, if this examination (examination) cannot be completed within the territory established by the court;
d) concluding an employment contract;
e) concluding a civil law agreement, the subject of which is the performance of work and (or) the provision of services;
f) state registration as an individual entrepreneur, obtaining a license to carry out a certain type of activity[11].
All other reasons for leaving the territory established by the court will be considered illegal, and will be one of the ways to evade administrative supervision, if the supervised person pursued the goal of leaving this territory to evade the administrative supervision established for him.
So, for example, gr. A. When establishing administrative supervision, a ban on traveling outside the area of his residence was established as restrictions. However, he left his place of residence without permission, went to another area, where he was detained after some time by law enforcement officers. In his defense, Mr. A. stated that he was forced to go to work in another area due to his difficult financial situation and did not have time to contact the police for a route sheet. However, during the investigation it was found out that gr. A. upon arrival in another territory did not appear at the relevant internal affairs agency and did not inform anyone that he was under surveillance[12]
End of introductory fragment.
How can you be punished for violating restrictions aimed at countering COVID-19?
But not all requirements are contained in regulatory legal acts at the federal level. During the pandemic, the President of the Russian Federation instructed the heads of the constituent entities of the Russian Federation, depending on the situation in the region, to develop their own standards. The Supreme Court of the Russian Federation, in turn, explained 2 that for violation of the rules established at the regional level, Art. 20.6.1 of the Code of Administrative Offenses of the Russian Federation (for failure to comply with the rules of conduct in case of an emergency or the threat of its occurrence) - see it also in Table 1, it was also introduced in April 2021.
Fines for non-compliance with anti-Covid restrictions were established in order to scare employers and draw attention to the importance of preventive measures. The courts understand the emergency nature of such fines and often change them to a milder measure of administrative sanctions - a warning (see, for example, the resolution of the Tverskoy District Court of Moscow dated October 7, 2020 in case No. 5-731/2020) or impose a fine below the lowest limit (see, for example, the resolution of the Zamoskvoretsky District Court of Moscow dated October 23, 2020 in case No. 5-1685/2020). Along with the further easing of coronavirus restrictions, statistics on fines will also change (toward their reduction).
But we should not forget that in certain situations, such violations may result in more serious penalties - suspension of activities for up to 90 days (Article 6.3 and Part 2 of Article 20.6.1 of the Code of Administrative Offenses of the Russian Federation) and even criminal liability (Article 236 of the Criminal Code of the Russian Federation).
After reading the legislative norms given in Tables 1 and 2, we can draw the following conclusion:
- if a violation of sanitary rules led to massive 3 disease (or poisoning) of people or a real threat 4 of such consequences, then criminal liability: under Part 1 of Art. 236 of the Criminal Code of the Russian Federation (without deaths);
- according to Part 2 of Art. 236 of the Criminal Code of the Russian Federation (death of 1 person);
- according to Part 2 of Art. 236 of the Criminal Code of the Russian Federation (death of 2 or more people);
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Supervision practice
The Plenum of the RF Armed Forces is preparing clarifications for the courts in connection with the questions that law enforcement officials have when considering administrative cases on administrative supervision of persons released from places of deprivation of liberty.
In particular, the draft document states that if the specified person does not have registration at the place of residence or stay, then an administrative claim is filed with the court at the place of his actual permanent residence, which is established by a body of evidence indicating that the person has chosen the relevant territory as place of your priority everyday life interests.
Regarding procedural issues, the Supreme Court notes: taking into account the fact that an administrative claim related to administrative supervision is immediately accepted for court proceedings, such an administrative claim cannot be left without progress, while shortcomings can be eliminated in the process of preparing the case for trial . It is also recalled that cases of administrative supervision are not subject to consideration through simplified (written) proceedings.
The Supreme Court of the Russian Federation indicates that the proceedings in the case may be suspended, for example, if the administrative defendant, whose participation in the court hearing is recognized as mandatory by the court, is in a medical institution. If a person evades participation in the case, the court has the right to recognize the personal appearance of the administrative defendant as mandatory, as well as to apply procedural coercive measures. If the actual location of the administrative defendant is unknown, the court appoints a lawyer to represent such person and considers the administrative case with the participation of the appointed representative.
It follows from the draft resolution that if at the time of consideration of the case on administrative supervision the period specified in Art. 4.6 of the Code of Administrative Offenses of the Russian Federation, during which a person is considered subject to administrative punishment for one or more administrative offenses, the possibility of taking such an administrative offense into account as a basis for establishing administrative supervision is excluded.
The Supreme Court explained that in cases where, when considering a case on administrative supervision, a new law is adopted that improves the situation of a person, including influencing the determination of the type of recidivism, expungement of a criminal record, etc., but the sentence was not brought into compliance with the current legislation, the court does not have the right to independently draw conclusions about the presence of corpus delicti in a person’s actions, its category, etc. In this case, the person should be explained his right to file a petition to review the sentence and bring it into compliance with current legislation. If there is such an appeal, the proceedings in the case of administrative supervision should be suspended due to the impossibility of considering this case until the resolution of another case considered in criminal proceedings. In addition, the court must explain to representatives of the correctional institution or internal affairs agency that, regardless of the presence of a petition from the named person, they have the right to apply to the court with a request to bring the sentence into compliance with current legislation.
It is also emphasized that, by extending the period of administrative supervision, the court is not bound by the opinion of the administrative plaintiff and has the right to establish a shorter or longer period within the limits established by the Law on Administrative Supervision of Persons Released from Prison (hereinafter referred to as the Law). At the same time, the provisions of the Law do not prevent the repeated extension of administrative supervision for a period of up to six months within the period for expunging a criminal record in the presence of appropriate circumstances.
When refusing early termination of administrative supervision, the court does not have the right to partially cancel or supplement previously established administrative restrictions or extend the period of administrative supervision. If the court refuses to terminate administrative supervision early, re-applying such an application is possible no earlier than six months from the date of the court’s decision to refuse the early termination of administrative supervision. The Supreme Court draws attention to the fact that in relation to a person who has served a sentence for a crime against the sexual integrity and sexual freedom of a minor, administrative supervision cannot be terminated early.
The draft resolution clarifies that if, when considering a case on administrative supervision, a preventive measure in the form of house arrest is chosen against an administrative defendant, then this circumstance does not prevent the court from establishing administrative supervision, while the Law contains an indication only of detention.
According to Anatoly Kuznetsov, a lawyer at the Borodin and Partners law firm, the document does not pay enough attention to the issue of allowing a supervised person to briefly leave the territory established by the court due to emergency circumstances. He recalled that according to the Law, these include, for example, the death and serious illness of a close relative. “At the same time, for obvious reasons, such a possibility should be established in relation to other persons, with the exception of close relatives who are related to the supervised person, as well as persons whose life, health and well-being are dear to him due to existing personal relationships,” - he thinks.
The expert also touched upon the paragraph of the draft resolution, which refers to “a person in prison and subject to release.” In his opinion, the status of the person subject to release is uncertain. “A person is in places of deprivation legally or illegally,” he said.
He focused on the provisions of the document, which state that a statement of claim to establish administrative supervision is filed with the court at the location of the correctional institution. And also that an administrative claim related to administrative supervision is immediately accepted for court proceedings. In this case, such a case is considered within ten days from the date of receipt of the relevant administrative claim by the court.
These provisions raised questions for the expert: what to do in the case where an administrative claim is filed and registered, but by the time of consideration the person has left prison for his place of permanent residence? Will such a person have to return to convey his position on the administrative case to the court? “It would probably be necessary to establish the possibility of considering such a case at the place of registration or stay of the released person upon his written application,” he believes.
Lawyer, member of the Council of the Administrative District of the Belgorod Region Boris Zolotukhin explained that by introducing administrative supervision, the legislator was trying to restore the system of social adaptation of persons released from prison and the prevention of relapse of crimes, which worked more or less well in Soviet times.
“But then the internal affairs bodies had a real opportunity to employ such persons, and enterprises were obliged to hire them,” he noted. “There is no real opportunity for the current bodies of the Federal Penitentiary Service of Russia to provide employment, and thereby ensure the minimum economic “well-being” of a person released from prison – and it is not expected in the near future.” Therefore, he believes, there is no reason to believe that administrative supervision itself, as well as the practice of its application, will affect the level of crime and its relapse.
