of June 30, 2022 No. 3
About application of regulations of the General part of the Code of the Republic of Belarus by courts about administrative offenses
Having discussed results of generalization of court practice of application of regulations of the General part of the Code of the Republic of Belarus about administrative offenses (further - the Administrative Code), for the purpose of the correct and uniform application of the legislation the Plenum of the Supreme Court of the Republic of Belarus DECIDES:
1. Draw the attention of courts that the correct application of regulations of the General part the Administrative Code is important instrument for ensuring of protection of life, health, the rights, freedoms and legitimate interests of physical persons, interests of society and state, the rights and legitimate interests of legal entities, and also preventions of administrative offenses.
It must be kept in mind that administrative prosecution of physical person, including individual entrepreneur, legal entity (further if other is not provided, - person) shall be based on the principles of legality, justice, humanity, equality before the law, and also guilty responsibility of physical persons (part 3 of the article 1.2 Administrative Code). Administrative punishment can be imposed in the absence of good causes for application of preventive corrective actions and shall be proportional to nature and degree of public harm of administrative offense, to answer the purpose of the administrative responsibility.
2. It is strict to courts to observe provisions of the article 1.9 Administrative Code about action in time of the act of the legislation eliminating illegality of the act mitigating or canceling the administrative responsibility or otherwise the person improving provision who made administrative offense. At the same time to mean that such act of the legislation extends to person who made administrative offense to the introduction of the act of the legislation in force and concerning whom the resolution on imposing of administrative punishment or application of preventive corrective actions is not performed (fully or partially).
Illegality of act can be eliminated not only introduction of amendments to the Administrative Code, but also as a result of change or cancellation of other regulatory legal acts for which violation the administrative responsibility is provided.
To improving provision of person who made administrative offense can belong containing in again adopted act of the legislation of the instruction which provide, for example, mitigation of the bases and conditions of release from the administrative responsibility, reducing terms of imposing of administrative punishment, etc.
3. Explain to courts that the administrative responsibility for attempt of making of administrative offense comes when person started accomplishment of the objective party of offense, but did not finish the actions owing to circumstances and only in the cases which are directly provided by the Special part the Administrative Code.
In descriptive part of the resolution on the case of administrative offense it is necessary to specify circumstances owing to which the administrative offense was not finished. At the same time reference to Item 11 of part 1 of Article 1. 10, part 3 of the article 2.1 Administrative Code in substantive provisions of the resolution on the case of administrative offense is not required.
4. To courts to mean that the correct reference of administrative offense to one of categories, the stipulated in Article 2.2 Administrative Code, is important for determination of availability of the bases for release from the administrative responsibility, respect for the principles the Administrative Code when imposing administrative punishments, solutions of other questions connected with the administrative responsibility.
If administrative punishment only in the form of the penalty estimated in basic sizes is provided in the sanction, then reference of administrative offenses to administrative offense or considerable administrative offense depends on the penalty sizes (parts 2 and 3 of the article 2.2 Administrative Code) specified in the sanction.
In case in the sanction along with penalty, including estimated in percentage or multiple size, other types of administrative punishments are provided, for the purposes of reference of administrative offense to considerable or rough it is necessary to proceed from the most strict administrative punishment specified in the sanction.
It is necessary to consider that administrative offenses which repeated making (irrespective of type of the administrative punishments provided for their making) attracts criminal liability also are carried to rough administrative offenses according to part 4 of the article 2.2 Administrative Code.
5. When considering the case about committing by person of several administrative offenses courts in strict compliance with the article 2.4 Administrative Code need to establish whether frequency of administrative offenses or their set takes place.
Draw the attention of courts that frequency of administrative offenses takes place only in cases when person makes two or more administrative offenses provided by the same Article of the Special part the Administrative Code or the same part when Article consists of several parts (part 1 of the article 2.4 Administrative Code).
Determining availability or lack of frequency of administrative offenses, including as the circumstance aggravating the administrative responsibility (Item 2 of part 1 of the article 7.3 Administrative Code) it is necessary to proceed from requirements of part 2 of the article 2.4 Administrative Code.
In case of the solution of question of responsibility of person for administrative offense on the qualifying sign of its making provided by Articles of the Special part the Administrative Code repeatedly within one year after imposing of administrative punishment for the same violation it must be kept in mind that the expiration by the time of making of this offense of the terms established by Articles 4. 9, 9.6 Administrative Code, have no legal value.
6. To courts to mean that necessary condition of availability of set of administrative offenses is making of two or more offenses provided by both different Articles, and different parts of one Article of the Special part the Administrative Code when for one of them person was not brought to the administrative responsibility (part 3 of the article 2.4 Administrative Code).
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