The Main Directions of Increasing the Effectiveness of Liability for Recidivism of Administrative Offenses

Akhtanina Natal'ya Anatol'evna PhD in Law Senior lecturer, Department of Administrative Law and Administrative Activity of the Department of Internal Affairs, V. V. Lukianov Orel Law Institute of the Ministry of Internal Affairs of the Russian Federation 302027, Russia, Orel, Ignatova str., 2 akhtanina@inbox.ru Other publications by this author

In the light of the upcoming reform of administrative and tort legislation, it seems interesting to analyze the innovations introduced by the draft Administrative Code of the Russian Federation ^[4], published by the Ministry of Justice of the Russian Federation on 31.01.2020, regarding the appointment of administrative penalties. In the above-mentioned normative legal act, a separate article enshrines the principle of fairness and proportionality in the imposition of administrative punishment, which is absent in the current Administrative Code, and means that the punishment for an administrative offense must correspond to the size and degree of harm caused, the identity of an individual, the nature of the offense, take into account the circumstances of its commission.

An important task of administrative-tort law is to analyze the causes and conditions of committing administrative offenses in order to prevent them. In most cases, we are faced with the commission of a single illegal act by a person, however, it is not uncommon for a person to commit two or more offenses, before or after bringing him to responsibility for the first. In this case, the administrative and legal assessment of the subject's behavior changes significantly, since such situations usually indicate the antisocial orientation of the person's thoughts, stable illegal views and habits and, all other things being equal, pose an increased public danger.

The commission by a person of two or more offenses, which at the time of bringing him to administrative responsibility have not lost their administrative and tort significance, is attributed by the author to the category of multiplicity of administrative offenses ^{[6, p.4]} The multiplicity of administrative offenses can appear in three forms: repetition, totality and recidivism.  All three forms have important administrative and legal characteristics, according to certain criteria, common and distinctive features, which are disclosed in detail in the author's dissertation research ^{[6, pp. 43-66]}. In this article, I would like to touch on the third form of plurality – recidivism of administrative offenses, defined by the author as the commission by the same person for the second or more time after bringing to administrative responsibility an intentional administrative offense. The recurrence of an administrative offense can be considered:

– as an objective indicator of the effectiveness of administrative proceedings and the imposition of penalties for offenses;

– a way to implement preventive measures to prevent the commission of administrative offenses, and even crimes.

For the first time, the concept of "recidivism" was introduced into administrative and legal norms on July 26, 1966. Decree of the Presidium of the Supreme Soviet of the USSR No. 5362–VI "On strengthening responsibility for hooliganism" was considered as the basis for applying stricter responsibility to the offender. Since hooliganism has always been regarded as a cynical offense aimed at disturbing public order, often with the depersonalization of the object of unlawful encroachment, the introduction of such a concept was justified.

Previously, persons who were brought to justice for hooliganism, even if they repeatedly committed an offense, could not receive severe punishment, since it was not provided for by law, and accordingly such subjects committed them again and again.

After the adoption of the above-mentioned Decree, the responsibility for hooliganism was strengthened, and this responsibility had an increasing character, and the norms establishing it provided the law enforcement officer with a choice. Thus, when committing minor hooligan actions, the violator was fined for the first time, correctional labor, or administrative arrest for up to 15 days.

If a person guilty of a previous offense committed such an act repeatedly, more severe penalties could be applied to him, but within the limits of the sanction of the composition provided for by the Administrative Code of the Russian Federation. In those cases when, after repeated hooligan actions, the person did not realize his behavior, guilt and committed them again, this indicated the presence of antisocial deformation of the offender's personality, lack of remorse for his actions, the formation of criminal attitudes and habits. Accordingly, the application of the same measures is senseless and ineffective and it was required to apply a different punishment in the form of imprisonment for up to 6 months. In this example, we first encounter the phenomenon of administrative prejudice. And at the present time, the question of administrative prejudice, the application of the norms of criminal liability for the repeated commission of a number of administrative offenses (art. 116.1; 151.1; 157; 158.1; 171.4; 191; 193;212.1; paragraphs 1, 2, 5 of Article 215.3; Article 215.4; paragraphs 2, 3 of Article 255; 264.1; 280.1;284.1; 315.1 of the Criminal Code of the Russian Federation) is considered controversial in Russian science, since there are a huge number of different opinions on this issue.

In the Russian Federation, unlike other foreign countries, the legislation does not provide for the concept of a criminal offense, that is, an act that is on the verge between an administrative offense and a crime.

The domestic legal community is of the opinion that the degree of public danger of an illegal act increases with the repeated commission of this offense. Therefore, the Russian law provides for the institution of administrative prejudice.

Describing the essence of administrative prejudice, it should be noted that by its legal properties it can act as a way of criminalization or decriminalization of acts. Consequently, there are the following preconditional compositions:

1) criminalizing acts, in cases when new norms are included in the Criminal Code of the Russian Federation ^[2], similar to the norms of the Administrative Code of the Russian Federation, which expands the scope of application of the criminal law due to the appearance of a new corpus delicti.

For example, an attacker who once committed a petty theft (from 1000 to 2500 rubles) is subject to administrative punishment under Part 2 of Article 7.27 of the Administrative Code of the Russian Federation^[3]. In the event that within a year after the issuance of the decision on administrative punishment, he again steals property for the specified amount, he will have to incur criminal liability under Article 158.1 of the Criminal Code of the Russian Federation.

2) decriminalizing acts acting as a way of humanizing criminal legislation; in cases where the prejudicial composition is fixed in the criminal law, and the prejudice restricts its effect, since after its introduction, the first stage is bringing a person to administrative responsibility (Article 157 of the Criminal Code of the Russian Federation).

  The Constitution of the Russian Federation enshrines all types of property (private, state, municipal, public associations), as well as the duty of the state to protect the rights of citizens who own property from unlawful encroachments^[1]. In particular, the norms of administrative and criminal law are aimed at protecting property and contain sanctions for committing encroachments on someone else's property.

   Thus, it seems reasonable that criminal law and administrative law have a close relationship with each other. Administrative law is aimed at preventing less harm to public relations than criminal law, and accordingly, the responsibility provided for by the sanctions of administrative law will be more lenient than the responsibility for committing a criminally punishable act. For example, a close relationship is observed between Article 7.27 of the Administrative Code of the Russian Federation "Petty Theft" and its analogues in criminal law, which have a number of similar features, which causes problems in the qualification of these compositions.

 Petty theft is an act that has signs of an administrative offense, as well as having signs of a criminal nature, aimed at violating the rights of the owner and taking possession of his property. Article 7.27 has no analogues in the Special Part of the Administrative Code of the Russian Federation. The object of protection of this article is legal relations related to property. The subject of the criminal act provided for in Article 7.27 of the Administrative Code of the Russian Federation will be property, in other words, things, valuables and other objects of the material world that have a value and value not exceeding two thousand five hundred rubles ^[5]. The legislator, when determining the amount of administrative damage, is guided by formal signs, determining the maximum damage caused. The consequence will be the need to determine the amount of damage in each individual case, which will help us to distinguish an administrative offense from a crime. At the same time, the retail value will be used to calculate the amount of stolen property, which will correspond to the value in the period of time when the theft was committed. If, for certain reasons, it is not possible to determine the value of the stolen property, an expert may be involved to determine the amount of damage. It should also be mentioned that the amount of damage caused allows us not only to distinguish an administrative offense from a crime, but it is important that the amount of damage caused will depend on the amount of the administrative fine imposed, which is calculated in multiplicity with respect to the established damage. The maximum amount of an administrative fine imposed can reach five times the value of the damage caused as a result of theft. A distinctive feature of the article will be the theft of someone else's property worth no more than two thousand five hundred rubles, if it is committed by theft, fraud, embezzlement or embezzlement. If the theft is carried out by other means (robbery, robbery), the value of the stolen will not play a role in this case, then this act will be qualified as a criminal offense. Liability for petty theft committed by theft, fraud, embezzlement or embezzlement will occur in the absence of aggravating circumstances, in the presence of such circumstances, the act will be qualified as a criminal offense. Administrative liability is excluded in the case of committing an act as part of a group by prior agreement, with illegal entry into a dwelling and other circumstances ^[4]. 

The illegal act provided for in Article 7.27 of the Administrative Code of the Russian Federation "Petty theft" has a very high prevalence among all committed offenses. This is evidenced by the statistics of committed offenses: 133360 offenses were committed in 2021; 141048 offenses in 2020; 156371 offenses in 2019 ^[7]. Moreover, judicial statistics do not reflect the entire totality of these offenses with a high level of latency. Thus, it can be concluded that there is a tendency to tighten responsibility for this offense by increasing the amount of the fine provided for the commission of this act.

Another trend in administrative law is an increase in the amount of damage caused as a result of the commission of an offense provided for in Article 7.27 of the Administrative Code of the Russian Federation. In accordance with Part one of Article 7.27 of the Administrative Code of the Russian Federation, petty theft is the theft of someone else's property by theft, fraud, embezzlement or embezzlement in the absence of signs of crimes provided for in Part 2, Part 3 and Part 4 of Article 158, Part 2, Part 3 and Part 4 of Article 159, Part 2, Part 3 and Part 4 Article 159.1, part 2, part 3 and Part 4 of Article 159.2, part 2, part 3 and part 4 of Article 159.3, part 2 and part 3 of Article 159.4, part 2, part 3 and part 4 of Article 159.5, part 2, part 3 and part 4 of Article 159.6 and part 2 and part 3 Article 160 of the Criminal Code of the Russian Federation^[3]. The note to this article contains a distinction between petty theft and embezzlement as a criminally punishable act by establishing a quantitative criterion for their differentiation, in particular, "the theft of someone else's property is recognized as "petty" if the value of the stolen property does not exceed one thousand rubles according to the first part of Article 7.27. Moreover, petty theft must have all the signs of theft ^[8].

Also, Part two of Article 7.27 of the Administrative Code of the Russian Federation provides for liability for petty theft of someone else's property worth more than one thousand rubles, but not more than two thousand five hundred rubles by theft, fraud, embezzlement or embezzlement in the absence of signs of crimes provided for in Parts 2, 3 and 4 of Article 158, Article 158.1, Part 2, 3 and 4 of Article 159, Part 2, 3 and 4 of Article 159.1, Part 2, 3 and 4 of Article 159.2, Part 2, 3 and 4 of Article 159.3, Part 2, 3 and 4 of Article 159.5, Part 2, 3 and 4 of Article 159.6 and Part 2 and 3 of Article 160 of the Criminal Code.

This trend can be caused by changes in prices in the modern market of material goods. The level of cost of certain material things has changed a lot since the last revision of this article. The maximum amount of petty theft can be two thousand five hundred rubles.  The damage caused as a result of the theft is established at the cost of the item at the time of the theft. Accordingly, the cost of things has changed significantly since the borders were established in monetary terms. Consequently, there is no proportionality of the damage caused at the present time period and at the time when the distinctions were established. One thing stolen in a given period of time will have a cost different from the cost of the thing stolen at the time when the legislator set the boundaries of petty theft.

Summing up the above, we come to the following conclusions:

1. We believe that it is worth agreeing with the opinion of Professor A. P. Shergin and K.F. Shergin that "the analysis of legal doctrine, criminal and administrative-tort legislation convinces us that there are more similarities than differences in criminal and administrative responsibility. This is primarily due to the general nature of these types of legal liability. They are based on a general ban on socially dangerous acts" ^[9]. 2. Note that Article 7.27 of the Administrative Code of the Russian Federation has no analogues in administrative law, but there are some difficulties in qualifying this offense with related criminal law.

There are also certain trends in changing the amount of damage caused, which is due to a change in the price range of things that may be the subject of encroachment, the presence of inflation and other reasons.   3. We believe that the lack of legal significance of administrative recidivism has led to the fact that bringing to responsibility under certain sanctions of the articles of the Administrative Code of the Russian Federation does not give the necessary effect of awareness of guilt and public danger of their behavior, the effect of awareness of guilt and public danger of their behavior by the violator, which leads to the commission of more serious acts.

  It is advisable to legislate the concept of recidivism of administrative offenses and provide for increased measures of administrative responsibility for it, including as the basis of prejudicial norms.