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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

of March 24, 2005 No. 5

About some questions arising at courts in case of application of the Russian Federation Code of Administrative Offences

(as amended on 19-12-2013)

Having discussed materials of the carried-out studying of practice of consideration by courts of the cases connected using the Russian Federation Code of Administrative Offences for the purpose of ensuring uniformity of court practice and in connection with not clear questions Plenum of the Supreme Court of the Russian Federation arising at courts by consideration of this category of cases decides to make to courts the following explanations:

1. The Russian Federation Code of Administrative Offences (further - the Code of the Russian Federation on Administrative Offences) enacted since July 1, 2002 which determines conditions and the bases of the administrative responsibility, types of administrative punishments, procedure for production on cases on administrative offenses, including jurisdiction and cognizance of these cases, and also the laws of subjects of the Russian Federation adopted according to the Code of the Russian Federation on Administrative Offences on the questions carried to competence of subjects of the Russian Federation belongs to the legislation on administrative offenses which should be guided by consideration of this category of cases.

In case of accountability, provided by the regulations of the Tax Code of the Russian Federation (Tax Code of the Russian Federation) containing signs of administrative offense, proceeedings shall be performed according to the procedure, the provided Code of the Russian Federation on Administrative Offences (part 3 of article 1.7 Code of the Russian Federation on Administrative Offences, part 2 of article 10 Tax Code of the Russian Federation).

Only those laws of subjects of the Russian Federation which are adopted taking into account the provisions of article 1.3 Code of the Russian Federation on Administrative Offences determining areas of jurisdiction and exclusive competence of the Russian Federation, and also article 1.3.1 Code of the Russian Federation on Administrative Offences, determining areas of jurisdiction of subjects of the Russian Federation are subject to application. In particular, the administrative responsibility for abuse of regulations and the regulations provided by the laws and other regulations of the Russian Federation cannot be established by the law of the subject of the Russian Federation. As measures of administrative punishment the prevention and administrative penalty in the amount of, established by paragraph one of part 3 of article 3.5 Code of the Russian Federation on Administrative Offences can be provided.

In case the international treaty of the Russian Federation establishes other rules, than stipulated by the legislation about administrative offenses, the regulations of the international treaty having direct and direct action in system of law of the Russian Federation are applied. At the same time it is necessary to consider the explanations made by the Plenum of the Supreme Court of the Russian Federation in the resolution of October 10, 2003 to N5 "About Use by Courts of Law of the Conventional Principles and Rules of International Law and International Treaties of the Russian Federation".

2. By preparation for consideration of the case about administrative offense the judge shall make the legal proceedings listed in article 29.1 Code of the Russian Federation on Administrative Offences for the purpose of accomplishment stipulated in Article 24.1 Codes of the Russian Federation on Administrative Offences of tasks of comprehensive, complete, objective and timely clarification of circumstances of each case, permission it according to the law, and also identifications of the reasons and conditions promoting making of administrative offense.

3. By case preparation the judge should establish whether consideration of this case is within its competence.

In case of the solution of question of jurisdiction and cognizance judges of courts of law of cases on administrative offenses need to proceed from the provisions enshrined in Chapter 23 of the Code of the Russian Federation on Administrative Offences according to which the cases listed regarding 1 article 23.1 Code of the Russian Federation on Administrative Offences are referred to competence of judges, considering at the same time the following:

a) judges of district courts consider cases on the administrative offenses specified in parts 1 and 2 of article 23.1 Code of the Russian Federation on Administrative Offences, in that case when on case administrative investigation (article 28.7 Code of the Russian Federation on Administrative Offences) was made or when the sanction of Article establishing responsibility for administrative offense provides possibility of assignment of punishment in the form of administrative expulsion out of limits of the Russian Federation, administrative suspension of operations or disqualification of persons replacing positions of Federal public civil service, position of the public civil service of the subject of the Russian Federation, position of municipal service (paragraph two of part 3 of article 23.1 Code of the Russian Federation on Administrative Offences).

The issue of conducting administrative investigation is resolved in case of initiation of proceedings of administrative offense by persons specified regarding the 2nd article 28.7 Code of the Russian Federation on Administrative Offences. The officials listed regarding the 4th article 28.7 Code of the Russian Federation on Administrative Offences and also the prosecutor (Item 2 of article 1 of the Federal law "About Prosecutor's Office of the Russian Federation") have the right to make administrative investigation. At the same time it is necessary to consider that administrative investigation is allowed only in case of identification of administrative offenses in the industries of the legislation listed regarding 1 article 28.7 Code of the Russian Federation on Administrative Offences.

Administrative investigation represents complex of the requiring considerable time expenditure of legal proceedings of the persons stated above directed to clarification of all circumstances of administrative offense, their fixation, legal qualification and procedural registration. Conducting administrative investigation shall consist of the real actions directed to receipt of necessary data including by conducting examination, establishment of the victims, witnesses, interrogation of persons living in other area.

The legal proceedings made according to regulations of the Code of penal procedure of the Russian Federation within preliminary inquiry on the criminal case brought concerning person brought to the administrative responsibility, and afterwards stopped are not administrative investigation.

Having determined that administrative investigation actually was not made, the judge of district court by preparation of case for consideration should resolve issue of its transfer to the magistrate judge based on Item 5 of part 1 of article 29.4 Code of the Russian Federation on Administrative Offences. In case of conducting administrative investigation on the case of administrative offense in the industries of the legislation which are not specified regarding 1 article 28.7 Code of the Russian Federation on Administrative Offences, the judge submits determination about case referral for consideration to the magistrate judge based on Item 5 of part 1 of article 29.4 Code of the Russian Federation on Administrative Offences;

b) judges of garrison public courts consider cases on all offenses provided by parts 1 and 2 of article 23.1 Code of the Russian Federation on Administrative Offences if they are made by the military personnel and citizens called on military charges (paragraph one of part 3 of article 23.1 Code of the Russian Federation on Administrative Offences);

c) judges consider the cases which are also referred to competence of other bodies (officials) specified regarding the 2nd article 23.1 Code of the Russian Federation on Administrative Offences provided that they were transferred to their consideration because authorized body (official) taking into account nature of committed offense, the identity of person concerning whom proceeedings about administrative offense are conducted and other circumstances specified in the law recognized necessary to discuss question of possibility of application of measures of punishment which purpose is referred to exclusive competence of judges.

Considering that transfer of cases of the this category for consideration to the judge is within the competence of the bodies (officials) called above, the judge in the specified case shall accept case to consideration on the merits;

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