Advocate Vladimir Avilkin about a bill worked out in order to prevent unsystematic and fragmentary amendments and additions to the CAO of the RF. Novaya Advokatskaya Gazeta, 14th October 2016
On the 10th of October 2016 a group of MP's submitted a bill #2749-7 "On amendments to the Federal law #196-FL "On bringing into force the Code of the Russian Federation on administrative offenses" to the Federal Assembly of the State Duma (SD) of the RF.
MP's propose to add a single clause 1' to the Federal law #196-FL. The clause reads that amendments to the provisions of the Code of the RF on administrative offenses, and also suspension of the provisions of the CAO and recognition of the provisions of the CAO of the RF as having lost their force, should be carried out exclusively by bringing in to the SD a separate federal law on amendments to the CAO. Changing of the norms in the CAO by including amendments into the bodies of the federal laws which correct or recognize as having lost their force other legislative acts of the RF, or contain an independent subject of regulation, is not allowed.
The authors of the bill reveal the goal of its coming into force in an explanatory note. In their opinion, implementation of the clause 1' will enable to avoid the wrong practice when proposals about making changes in the CAO ,including those concerning making the administrative responsibility more strict, are submitted for consideration to the SD at the stage of the second reading as amendments which were not initially meant (at the working out stage and/or during the first reading in the State Duma) to be included into the law on administrative offenses.
Authors of the Bill #2749-7 emphasize that amendments to the CAO get directly to the second reading in the SD and don't receive a proper, objective legal estimation and, consequently, passed laws may menace rights, freedom and legal interests of citizens and organizations.
In our opinion, passing of the bill is absolutely justified bearing in mind the goal declared by its authors in the explanatory note. It is wrong when the CAO norms are created appearing only at the second reading when it's more difficult to estimate the necessity of their approval or accuracy in formulating of the text in terms of juridical technique and links with the other, already existing legislative acts, than in the situation when proposals to change the CAO norms are announced at the very moment of appearance of the bill in the SD. Changes of that kind may create contradictions between the CAO and other laws, contain banal errors of juridical technique or provide implementation of irrelevantly high responsibility for administrative offenses.
It is quite obvious that making laws without proper preparation, using "on the spot decision" practice is damaging, especially if it results in appearance of new restrictions, limitation of citizens' freedom of behaviour, makes punishments tougher and so on. The authors of the bill can't avoid criticism for the text of the document which allows uncertainty in the meaning, doesn't fully correlate with the motives of the bill mentioned by the authors in the explanatory note.
Here is a full quotation of the clause 1': "Changes in the Code of the Russian Federation on administrative offenses and also suspension and recognition of its provisions as having lost their power ARE CARRIED OUT BY SEPARATE FEDERAL LAWS. Provisions allowing to make changes in the Code of the Russian Federation on administrative offenses, suspension or recognition of its provisions as having lost their power, CANNOT BE INCLUDED INTO THE TEXTS OF THE FEDERAL LAWS WHICH CHANGE, RECOGNIZE AS HAVING LOST THEIR POWER OTHER LEGISLATIVE ACTS of the Russian Federation or containing an independent subject of legal regulation"
In our opinion, the conclusion out of the literal meaning of the text of the proposed norm is the following: changes in the CAO may be made only by passing a bill which initially (when it is brought in to the SD) proposes to make changes only in the provisions of the CAO; the law won't allow cases where a bill initially contains propositions to change several laws, the CAO being one of them.
Such a conclusion does not fully correlate with the explanatory note to the bill where the authors focus only on the opinion that passing of the bill is justified when amendments to the CAO are proposed for the second reading, but do not exist in the initial variant.
If this is really the author's goal (i. e. to prevent novelties getting into the bill only in the second reading), the following conclusion comes to mind: the bill contains inaccuracies in juridical technique which allow to make other conclusions. If the bill should be meant as a new rule that every change in the CAO must be adopted in the form of a new law which cannot contain proposals to change other laws, it means that the authors' point of view can't be accepted for the following reasons.
First of all, it is not justified in every case to impose a ban on making changes in the CAO by passing a law WHICH PROPOSES A COMPLEX REFORMING OF A SEPARATE AREA OF RELATIONS BY MAKING SIMULTANEOUS CHANGES OF SEVERAL LEGISLATIVE ACTS (OBVIOUSLY, IF THAT KIND OF REFORMING OF DIFFERENT LAWS MATCHES THE COMMON GOAL).
Here is an example. In 2011 the SD passed a Federal Law #242-FL "On making changes in separate legislative acts of the Russian Federation on carrying out the state control (supervision) and the municipal control". One of the clauses of the Law (c. 3) contains an addition p. 3 cl. 26.2. CAO which points out that evidence received with breaching of the law including evidence received during the state (municipal) checkups cannot be used in cases of administrative offenses.
Apart from the above mentioned elaboration in the p.3 cl.26.2 of the CAO, the Federal Law #242-FL also contains changes in a large number of other legislative acts of the RF: the Law on protection of consumers' rights, the Labour Code of the RF, the merchant navy navigation Code of the RF and so on. This "complex" law contains only changes in carrying out the state (municipal) control. Therefore, the best way to elaborate norm p.3 cl.26.2 CAO was to pass this law. So, the legislator did particularly that very thing (also in the interests of the process economy).
If we regard such a complex approach to reforming as counter-effective and even dangerous, we increase the risk to overload the law-making process (because a legislator will try to solve each problem separately instead of working out a complex solution and discussing these problems as part of a whole legislative act, including changes in the provisions of the CAO RF).
Secondly, a reproach in the explanatory note to the bill that the status quo in the legislative process may lead to situations when "bills [in the part of the changes brought in in the second reading] do not receive a proper, objective legal estimate and, consequently, the laws passed may become a menace to the rights, freedoms and lawful interests of citizens and organizations", obviously can't be regarded as an opinion that the very approach which makes it possible to change the CAO by legislative acts proposing changes not only in the CAO clauses, but also in the other laws if such propositions were initially present in the bill and were discussed in the second reading, is wrong.
In our opinion, it would be reasonable to keep the possibility of changing the CAO provisions by passing legislative acts which allow to make changes in different legislative acts, on condition though, that such changes in the CAO are proposed by the subjects of legislative initiative already in the initial text of a bill. During preparation of the bill to the second reading the opportunity to add novelties to the CAO should be excluded or limited. Therefore, the proposed project should be clarified in order to make it formally definite and match the goal of the reform stated in the explanatory note by its authors.