Functional Aspect of a Protocol on Administrative Offense as a Jurisdictional Act

In June 2019, the official website of the Government of the Russian Federation published the Concept of the New Code of Administrative Offences, the enactment of which is planned for 1 January 2021. This Concept indicates that the factors that reduce the effectiveness of the existing Administrative Code of the Russian Federation include, among other things, problems in law enforcement at the stages of initiation and consideration of cases of administrative offenses, contains general guidelines for reforming the Administrative Code of the Russian Federation and highlights certain challenging issues that need to be resolved in its forthcoming modernization. At the same time, it does not seem to address all the issues that need to be addressed. Thus, the analysis of administrative-jurisdictional practice of the first instance shows that the protocol on administrative offense is considered by subjects of administrative jurisdiction ( extrajudicial, quasi-judicial, and judicial) as one of the types of evidence in the case of an administrative offence. Moreover, it is not uncommon that such a record is the only evidence on the basis of which an administrative penalty is imposed. And the analysis of administrative and jurisdictional practice of the second and subsequent instances (up to the Supreme Court of the Russian Federation) allows us to conclude that this approach is justified and quite legitimate. But is it really true? And to what extent is it lawful and legitimate to consider the protocol on an administrative offense as evidence in the case of an administrative offense? This paper is devoted to searching for answers to these questions through the prism of understanding of the functional purpose and juridical (lawful) nature of this type of administrativejurisdictional acts.

administrative offense, administrative jurisdiction, administrative-jurisdictional proceedings, administrative-jurisdictional act, administrative-jurisdictional process, proof, source of evidence, indictment, proceedings in the case of administrative offense, protocol on administrative offense, protocol functions

1. Gulkevich ZT. K voprosu o funktsiyakh protokolov sledstvennykh deystviy [To the question of functions of protocols of investigative actions]. Vestnik Permskogo universiteta. Yuridicheskie nauki [Perm University Herald. Juridical Sciences]. 2014;1(23):269—274. (In Russ.)

2. Kutsenko TM. Protokol ob administrativnom pravonarushenii kak dokument, imeyushchiy dokazatelstvennoe znachenie [Protocol on administrative offense as a document having evidentiary value]. Zakonnost i pravoporyadok v sovremennom obshchestve. 2013;16:14—18. (In Russ.)

3. Maslennikov M. federalnoe i regionalnoe zakonodatelstvo o protokole ob administrativnom pravonarushenii [Federal and Regional Legislation on the Protocol on Administrative Offences]. In: Dugenets AS, editor. Administrative Process: Theory and Practice. Moscow; 2008. (In Russ.)

4. Novikov AV. Pravovaya priroda protokola ob administrativnom pravonarushenii. Sovershenstvovanie protsedury ego sostavleniya [The legal nature of the protocol on administrative offense. Improvement of the procedure of its compilation]. Vestnik VGU. Seriya : Pravo [Proceedings of Voronezh State University. Series: Law]. 2017;1:126—143. (in Russ.)

5. Rebets KV. Protokol ob administrativnom pravonarushenii kak istochnik dokazatelstv po delu ob administrativnom pravonarushenii [Protocol on administrative offense as a source of evidence in the case of administrative offense]. Politseyskoe parvo. 2008;1:102—104. (In Russ.)

6. Khokhlov DV. Protokol kak istochnik dokazatelstv [A Record as a Source of Evidence]. EZh-Yurist. 2004;28. (In Russ.)