Administrative Prejudicial Effect as a Way of Criminalization using Criminal Liability for Violation of Traffic Rules as a Case Study (Article 264.2 of the Criminal Code of the Russian Federation)

The logical consequence of recognizing administrative prejudicial effect as a form of criminalization is the need, when deciding on the validity of criminalizing repeated acts that initially entail administrative responsibility, to establish the existence of a basis for criminalization, which is considered to be the necessary degree of public danger. The author conducts an analysis of empirical data for 2013–2022 characterizing administrative offenses related to exceeding the established speed limit over 40 km per hour, as well as entering the lane intended for oncoming traffic. This makes it possible to assert at least the absence of an increase in the degree of public harm to the level of public danger (due to the consistent systematic reduction of a number of indicators of punishability, as well as the absence of an increase in injuries and deaths as a result of violations of these traffic rules for the entire analyzed period). Recognizing the absence as such of objective prerequisites for criminal law interference in the sphere of administrative law regulating the analyzed legal relations, it is worth recommending that the legislator pay close attention to the possibilities available within the framework of administrative legislation (including the prospect of establishing appropriate types and sizes of punishment to a greater extent), and the law enforcement officer — to the issues of the enforceability of punishment in the form of a fine. In order to take effective measures against the most serious offenders, it would be more correct to establish a differentiated scale of punishability depending on the fact of repetition of an administrative offense. This approach will make it possible to avoid the conceptual and law enforcement problems of «transferring» responsibility for a recurring offense to the criminal law.

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