Сибирское юридическое обозрение (Dec 2023)
The Problem of Ensuring Equality Before the Law at Relief of Liability when Qualifying an Administrative Offense as Insignificant
Abstract
The present paper considers the problem of ensuring compliance with the principle of equality of all before the law when applying the institute of insignificance to the committed administrative offense. The Author examines the chronology of the appearance of the norm of insignificance in the legislation of Russia. He compares procedural legislation in cases of administrative offenses of the Russian Federation, the Republic of Kazakhstan and the Republic of Belarus in the context of the institute of insignificance. Study of Article 2.9 of the Code of the Russian Federation on Administrative Offenses, judicial acts of the courts of the first and subsequent instances, the analysis of scientific works devoted to the problem of the application of the institute of insignificance allow studying the problem of the application of the institute of insignificance to all material norms establishing administrative responsibility under Article 2.9 of the Code of the Russian Federation on Administrative Offenses. In the aspect of the principle of equality of all people and citizens before the law, questions are raised about the validity of assigning the status of “exceptional” to the norm under study. Comparison of the practice of application of Article 2.9 of the Code of the Russian Federation on Administrative Offences by courts of general jurisdiction and arbitration courts clearly demonstrates the application of the institute of insignificance in the judicial process. The problem of the application of Article 2.9 of the Code of Administrative Offences of the Russian Federation by authorized executive authorities in the administrative process is also considered in this paper. Arguments against the existence of a discretionary power in the institute of insignificance are given. The constitutional norms violated by the presence of discretionary authority in the institute of insignificance are called. The constitutional rights of delinquents violated due to the existence of discretionary powers in the institute of insignificance are named. The Author discusses the possibility of changing the existing legislation in order to ensure compliance with the balance of interests of delinquents and other participants in the case of an administrative offense to increase the effectiveness of public prosecution and the preventive value of administrative responsibility. The Author proposes to state Article 2.9 of the Code of Administrative Offences of the Russian Federation in the wording that ensures the right of all delinquents to equality before the law and the court in order to ensure their constitutional rights, including to maintain the balance of interests of delinquents and other participants in the case of an administrative offense to increase the effectiveness of public prosecution and the preventive value of administrative responsibility.
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