Volume 10 - Issue 45

/ September 2021

http:// www.amazoniainvestiga.info ISSN 2322- 6307

DOI: https://doi.org/10.34069/AI/2021.45.09.10

How to Cite:

Paryzkyi, I., Humin , O., Matvieiev , S., Marchenko, O., & Chukaieva, A. (2021). Administrative offense as deterrent to prove

objective aspect in criminal proceedings. Amazonia Investiga, 10(45), 99-104. https://doi.org/10.34069/AI/2021.45.09.8

Administrative offense as deterrent to prove objective aspect in

criminal proceedings

Адміністративний делікт як стримувальний чинник доведення об’єктивної сторони

в кримінальному судочинстві

Received: August 16, 2021 Accepted: September 29, 2021

Written by:

Paryzkyi Ihor

https://orcid.org/0000-0001-6835-5930

Humin Oleksii

https://orcid.org/0000-0002-8016-945X

Matvieiev Serhii

https://orcid.org/0000-0002-0037-004X

Marchenko Olha

https://orcid.org/0000-0002-8945-7490

Chukaieva Alina

https://orcid.org/0000-0001-8251-5187

Abstract

The purpose of the article is to study

administrative offense as a deterrent to proving

the objective element in criminal proceedings.

The research methodology includes the use of

general scientific and special methods of

scientific cognition: dialectical, epistemological,

logical and semantic, system and structural,

normative and dogmatic, monographic, legal

modeling methods. Research results: The article

examines the problems of co-existence of

administrative and criminal offenses. The signs

of delimitation of these illegal acts are

determined, as well as difficulties in defining and

differentiating between administrative and

criminal offences are established, which creates

legal gaps and conflicts. The problem of

administrative offense as a deterrent to proving

the objective element in criminal proceedings is

described. Practical implications: The main

obstacles to legal accountability related to the

consideration of administrative offenses are

identified. Value / originality: The ways to

overcome the above problems are proposed.

Анотація

Метою статті є дослідження

адміністративного делікту як стримувального

чинника доведення об’єктивної сторони у

кримінальному судочинстві. Предмет

дослідження: Предметом дослідження є

адміністративний делікт у кримінальному

судочинстві. Методологія: Методологія

дослідження включає використання

загальнонаукових та спеціальних методів

наукового пізнання: діалектичного,

гносеологічного, логіко-семантичного,

системно-структурного, нормативно-

догматичного, монографічного методів,

методу правового моделювання. Результати

дослідження: У статті досліджено проблеми

співіснування адміністративних деліктів та

кримінальних правопорушень. Встановлено

ознаки відмежування цих противоправних

діянь та одночасно виявлено складність

визначення та розрізнення адміністративних

та кримінальних порушень, що створює

правові прогалини та колізії.

Охарактеризовано проблему існування

Doctor of Economics, PhD in Law, Professor of the Department of Marketing, Economics, Management and Administration,

Vice-Rector for Strategic Development of the Higher Educational Institution "National Academy of Management", Ukraine.

Doctor of Law, Professor, Head of the Department of Criminal Law and Procedure of Lviv Polytechnic National University,

Ukraine.

PhD in Law, Associate Professor, Dean of the Faculty of Law of the National Academy of Management, Ukraine.

Ph.D. in Law, Acting Associate Professor of the Department of Public Law Disciplines of the University of Modern Knowledge,

Ukraine.

PhD in Law, Senior Lecturer of the Department of Information Technologies and Cybersecurity of the Educational and Scientific

Institute №1 of the National Academy of Internal Affairs, Ukraine.

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Keywords: administrative liability,

administrative offense, criminal liability,

criminal offense, criminal proceedings.

адміністративного делікту як стримувального

чинника доведення об’єктивної сторони в

кримінальному судочинстві. Практичні

наслідки: З’ясовано основні перешкоди у

притягненні до юридичної відповідальності,

пов’язані із розглядом адміністративних

деліктів. Цінність / оригінальність:

зЗапропоновано шляхи подолання

вищевказаних проблем.

Ключові слова: адміністративний делікт,

адміністративна відповідальність,

кримінальна відповідальність, кримінальне

судочинство, правопорушення.

Introduction

Nowadays, the legislation on administrative

offenses is undergoing numerous changes,

accompanied by the decriminalization of many

illegal acts related to the abolition of criminal

liability for certain offenses, as well as making

criminal offences administrative offenses,

because often the punishable acts (crimes and

misdemeanours) are similar, the boundaries

between these public law torts are blurred and

difficult to define. This causes certain

complications due to human rights violations, or

failure to adequately protect violated rights. In

view of this, the possibility of considering illegal

acts as administrative offenses, rather than

criminal offenses, is a deterrent to proving the

objective element in criminal proceedings, which

as the consequence of not incurring

responsibility may have a significant public

danger.

The fundamental differences that eliminate

arised limits of administrative and criminal

liability is the determination of different features

(Statkienė & Granickas, 2017, p. 149). It should

be noted that administrative liability is

distinguished from criminal one on the following

grounds:

1) administrative liability arises for the

commission of an administrative offense,

the composition of which is determined both

by laws and by-laws (decisions of local

governments). Criminal liability arises for

the commission of a crime, the composition

of which is determined exclusively by the

provisions of the Criminal Code of Ukraine;

2) the right to initiate cases on administrative

offenses, as well as the right to consider such

cases is endowed with a wide range of

subjects of public administration. The right

to initiate criminal cases is vested

exclusively in the bodies of inquiry and

preliminary investigation and the bodies of

the prosecutor’s office with the power of

review vested solely in the courts;

3) only natural persons are held criminally

responsible, and both natural and legal

persons are held administratively liable;

4) bringing a person to administrative

responsibility and applying administrative

sanctions do not lead to such consequences

as criminal record, which is further

manifested in certain limitations of his (her)

legal personality (for example, free travel

outside Ukraine);

5) administrative liability is realized both out

of court and in court; criminal liability is

realized only in court;

6) bringing a person to administrative

responsibility takes place in a shorter time

and under a simplified procedure.

At the same time criminal liability takes

advantage over administrative liability.

According to the legislation of Ukraine

administrative liability occurs if the nature of the

violation does not make it a criminal offence

under the law. Thus, the aim of the Article is to

distinguish administrative offense from criminal

offense and to study administrative offense as a

deterrent to proving the objective element in

criminal proceedings.

Methodology

General and special methods of scientific

knowledge were used as the methodological

basis for the research. In particular, dialectical

method helps to examine the problem of

administrative offense in criminal proceedings as

a separate and distinct issue. Epistemological

method, as well as logical and semantic method

are used to clarify the concepts of administrative

offense and criminal offense. The application of

Paryzkyi, I., Humin , O., Matvieiev , S., Marchenko, O., Chukaieva, A. / Volume 10 - Issue 45: 99-104 / September, 2021

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system and structural method contributes to the

investigation of the factors, which hinder proper

consideration and bringing the perpetrators to

justice in criminal proceedings. Normative and

dogmatic method helps to examine legal acts,

which regulate the issues connected with

administrative and criminal offenses (the Code of

Administrative Offenses and the Criminal Code

of Ukraine). Monographic method allows to

study the view of scientists on the problem of

administrative offense in criminal proceedings.

The use of legal modeling method allowed to

formulate the relevant conclusions.

Literature Review

Clarification of the essence of the subject matter

of administrative offense and criminal offense,

establishing its objective nature, place and role in

the structure of public relations, protected by

appropriate sanctions, is of great importance for

the correct administrative offense or criminal

qualification and the correct imposition of

administrative penalties or criminal charges. As

Kirchengast (2008, p. 114) correctly notes “the

separation of tort and criminal law is now

affirmed by the institutionalisation of criminal

prosecutions in a state authority and the severe

limitation of victim power in the criminal

courts”. Richards (2009), in his turn, stresses

that “it is important to understand the parallels

between criminal and administrative law,

because most of the criminal prosecutions arise

from administrative law problems”.

However, the distinction between administrative

and criminal illegal acts has a number of

difficulties, as administrative and criminal

liability have common features; in particular the

former is punitive in nature and does not differ

substantially from criminal liability (except

where a warning or injunction has been issued,

which have no punitive effect). In this regard

Paeffgen (1991, p. 247) notes that their co-

existence, based on different legal concepts and

serving different purposes, creates specific

problems of interaction and even interference. In

his turn Simons (2008, p. 720) adds that

structural difference is sometimes given a more

substantive gloss: criminal law prohibits "public"

wrongs and tort law "private" wrongs. According

to Dyson (2014) tort law and criminal law are

closely bound together but their relationship

rarely receives sustained and rigorous scrutiny

There is increasing recognition in the legal and

administrative literature that administrative

offenses are criminal offenses by their nature,

and administrative and tort liability derives from

criminal one, given that it appeared in the

legislation due to the decision of the Soviet

authorities to separate certain socially dangerous

encroachment from other crimes with the

establishment of an administrative procedure for

the consideration of the relevant cases

(Onishchenko et al, 2013, p. 220; Kolpakov,

2005, p. 117).

Although many scientists (Khavroniuk, 2015,

p. 252; Lukianets, 2013; Hryshyna, 2014;

Hrytenko et al, 2021) believe that there are

differences in object, degree of assault,

procedural characteristics, the nature of the

offense and punishment between administrative

offenses and criminal offenses.

Results and Discussion

Nowadays, there is a situation when it is

impossible to distinguish administrative offenses

from criminal offenses, as a significant part of

criminal offenses that have nothing to do with

public administration, provided for by the Code

of Administrative Offenses (Law No. 80731-X,

1984) and other laws. On the contrary, the

composition of administrative offenses is

enshrined in the Criminal Code of Ukraine

(Law No. 2341-III, 2001), and sometimes the

same acts are envisaged in both of these Codes.

The norms of the special part of the current Code

of Administrative Offenses of Ukraine envisage

misdemeanors that are not related to the sphere

of public administration (Khavroniuk, 2015, p.

252). For example, misdemeanors provided for

in Article 51 “Petty theft of alien property”,

Article 51-2 "Violation of intellectual property

rights", Article 52 "Spoil and pollution of

agricultural and other lands", Article 89 “Animal

cruelty“, Article 104 “Poisoning of crops,

damaging or destroying crops, damage to

plantations of collective agricultural enterprises,

other State and public or peasant (farmer) farms

", Article 173 “Petty hooliganism” and many

others (Law No. 80731-X, 1984). Accordingly,

criminal penalties are applied for administrative

violations, and administrative fines and other

administrative penalties are applied for criminal

misdemeanors.

Thus, the combination of offenses in the area of

public administration and offenses of a general

criminal nature (petty theft, petty hooliganism,

etc.), enshrined in our in the codified act do not

correspond to the European concepts in the field

of administrative offense law (Khavroniuk,

2020). Such torts are not directly related to the

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sphere of public administration, do not encroach

on administrative legal relations, are not

subordinate to public administration bodies and

do not "fit" into the modern paradigm of

administrative responsibility (Hurzhii, 2014),

because some administrative offenses in Ukraine

are criminal in their nature (e.g. infringements in

the spheres of public safety and traffic, which are

subordinate to the National Police of Ukraine).

This complicates the possibility of distinguishing

between administrative and criminal violations

and, accordingly, reduces the possibility of

correctly establishing responsibility for the

committed illegal acts.

Regarding the causes of this phenomenon, we

agree with claim that it is not clear to distinguish

between the offences under investigation in

public law, because (Azarov, 2018):

- public danger, as the capacity of an offence to

cause substantial harm or create a threat of its

infliction, is not a sign that distinguishes these

types of offenses, as public danger is a rather

subjective concept and is inherent in both

criminal offences and administrative offenses.

Therefore, the transfer of the article on liability

for a particular offense from the Criminal Code

to the Code of Administrative Offenses does not

change the ability of this offense to cause harm

or create a threat of its commission;

- the body authorized to impose penalties by law

does not characterize the legal nature of the tort

as well. Determining the jurisdiction of cases is

largely a technical problem, the issue of rational

use of State resources, the compliance with the

procedural form of the essence of the offense;

- the assertion that the imposition of an

administrative penalty does not entail a criminal

record is only correct only from a formal point of

view. Although the Code of Administrative

Offenses (Law No. 80731-X, 1984) does not

contain the term “criminal record”, the main

manifestation of a criminal record – its impact on

the qualification of encroachment and

punishment in the case of a new crime – is also

applied to administrative liability. Repeated

violation throughout the year is qualifying

ground of many types of administrative offenses

and a circumstance that aggravates liability for an

administrative offense (Article 35 of the Code of

Administrative Offenses). Besides, the

imposition of penalties for administrative

offenses sometimes entails social restrictions,

such as the inability to hold certain positions or

engage in certain activities.

We believe that the emergence of such gaps and

conflicts creates additional restrictions on the

possibility of proving the objective element in

criminal proceedings, because the consideration

of offenses from the standpoint of administrative

offense, rather than criminal misconduct and

criminal offense creates opportunities for

evasion.

Therefore, even the detection of the facts of

offenses is not always a guarantee of their proper

consideration and bringing the perpetrators to

justice. This is facilitated by various factors:

1) lack of coherence between the Criminal

Code of Ukraine and the Code of

Administrative Offenses of Ukraine on the

composition of the relevant offenses, as a

result of which criminal offenses can often

be considered as administrative offenses,

taking into account low level of public

danger of illegal acts;

2) poor collection of evidence leading to the

dismissing of proceedings because of the

absence of all the elements of administrative

offense;

3) insignificant amount of sanctions provided

for the commission of administrative

offenses is also the factor that does not

contribute to the fight and their prevention in

the future. In many cases, judges’ decisions

in cases of administrative offenses are

reduced to a minimum administrative

penalty (fine), which is considered not only

a measure of responsibility, but also serves

to educate the person who committed the

tort. Besides, there is a practice of

combining several cases into one proceeding

and imposing a minimum fine within the

sanction of the norm. This, on the one hand,

relieves the courts, but on the other one it

does not perform a preventive function,

which contributes to legal nihilism that

further generates new torts;

4) sometimes the courts release the offender

from administrative liability, taking into

account the facts of the case and the nature

of the tort, as well as the fact that no serious

consequences resulted from his (her)

actions, making only an oral comment under

the provisions of Art. 22 of the Code of

Administrative Offenses (due to the

insignificance of the offense);

5) delay and dismissal of the cases in

connection with the expiration of the term of

bringing to administrative liability or in

connection with the expiration of the term of

imposition of an administrative penalty;

6) return of case files for completion

(rectification of defects) and their proper

registration in local police departments and

in the National Agency on Corruption

Prevention. As a result, the proceedings

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usually end with the dismissal of the case

due to the expiration of the term of

administrative prosecution. This applies in

particular to the improper execution of

protocols on administrative offenses, which

are often returned for completion because of

the following reasons:

the essence of the administrative offence is

missing (the fabulate is vague and it is not clear

what exactly constitutes the offence);

it is not specified which normative acts of

Ukraine were violated;

there is no information about witnesses of events

or their absence in the column "witnesses" of the

protocol on administrative offense;

there is no date of the tort with reference to a

specific number of months in the report on the

administrative offense in the column

"composition of the administrative offense”;

the time of the offense is not specified;

the report on the administrative offense does not

specify which part of the article qualifies the

alleged wrongdoing;

the sentences of the protocol are not completed

with a logical meaning, which deprives the court

of the opportunity to establish the essence of a

particular tort;

7) Obstacles to prosecution may also arise at

the stage of consideration of cases in the

administrative court, which in some cases

revoke the judge’s decision and close the

proceedings.

In order to address these gaps and harmonize

administrative and criminal law, it is necessary to

create an effective system for detecting and

combating offenses, respect the rights and

freedoms of those prosecuted, and establish clear

criteria for distinguishing illegal acts, which

makes it impossible to prove the objective

element of criminal proceedings and avoiding

offenders by improper incrimination. Therefore,

we consider it is appropriate:

 to applicate the institution of criminal

misdemeanor (Law No.2617-VIII, 2018) in

the system of criminal law with the

harmonization of administrative offense

norms in administrative law;

 to implement of the correct qualification of

violations of administrative offense and

criminal law;

 to establish the signs of administrative

offenses and offences and criminal

misdemeanors and offenses, according to

which it will be possible to distinguish these

illegal acts in the relevant codes;

 the distinction between crimes, criminal and

administrative offenses should be made on

the basis of such criteria as the degree of

damage to public relations, the type of object

of the offense, the objective element of the

offense, the subject of jurisdiction, severity

and type of penalties provided, the subject of

the offense;

 to respect the rule of law when bringing to

administrative or criminal liability,

depending on the nature of the offense and

reduce the possibilies of unfair actions on

the part of relevant authorities aimed at

minimizing the consequences of the crime in

order to reduce sanctions. It should be noted

that criminal liability takes precedence over

administrative liability (Part 2, Article 9 of

the Code of Ukraine on Administrative

Offenses (Law No. 80731-X, 1984) states

that administrative liability for offenses

under this Code occurs if these violations are

not criminal offences under the law of

criminal liability).

 to harmonize administrative and criminal

justice procedures.

Conclusion

Based on the results of the study, the following

conclusions can be drawn:

1) administrative offenses and criminal

offenses have common features and are not

clearly defined in the codified acts, so the

correct definition of the subject matter of

administrative offense and criminal offense,

the establishment of their objective nature is

important for unmistakable administrative or

criminal characterization and proper

imposition of administrative fines or

criminal prosecution;

2) taking into account the problems of

distinguishing administrative offense from

criminal offense, the existence of legal gaps,

the problem of proving the objective element

in criminal proceedings and the probability

of avoiding liability is exacerbated;

3) currently, despite amendments to some

legislative acts of Ukraine to facilitate the

pre-trial investigation of certain categories

of criminal offences, introduce and allocate

“criminal offense” into a separate category,

there is a need to clearly develop universal

criteria for all cases of delimitation of

administrative offenses, formulate the rules

for resolving conflict situation, which entails

the need to improve the rules of domestic

administrative and criminal law.

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