Problems of Qualification of an Administrative Offense Provided by part 1 of Article 20.20. of the Code of the Russian Federation on Administrative Offenses

Sidorov Eduard Tomovich PhD in Law Professor, Department of Administrative Law and Administrative Activities of the Police, Moscow University of the Ministry of Internal Affairs of Russia named after V.Ya. Kikot 143615, Russia, Moscow region, region, Ruzsky District, Staroteryaevo,, Mof Mosu Mia str., 1 Eduard-Sidorov1965@yandex.ru Other publications by this author

The protection of public order is an important task, the solution of which is entrusted to law enforcement agencies, including the internal affairs bodies.

One of the ways to protect public order is to bring the perpetrators to administrative responsibility. In the Code of the Russian Federation on Administrative Offenses (hereinafter – the Administrative Code of the Russian Federation), responsibility for committing administrative offenses that infringe on public order is provided for in Chapter 20, which, in particular, contains the composition of an administrative offense described in Article 20.20 "Consumption (drinking) of alcoholic beverages in prohibited places or consumption of narcotic drugs or psychotropic substances, new potentially dangerous psychoactive substances or intoxicating substances in public places" ^[1].

The subject of this article is the analysis of the objective side of the composition of the administrative offense provided for in part 1 of Article 20.20 of the Administrative Code of the Russian Federation, namely, such an element of the objective side as the content of the act of this offense.

The relevance of the study of the construction of this composition of an administrative offense and the practice of bringing citizens to administrative responsibility is justified:

– firstly, the high prevalence of this composition of an administrative offense. Thus, according to the data provided by the Ministry of Internal Affairs of Russia, police officers annually identify almost 2 million such acts ^{[11, pp. 105-126]}.

– secondly, the importance of public relations protected by measures of administrative responsibility. Thus, the Constitutional Court of the Russian Federation notes that the legal norms contained in Chapter 20 of the Administrative Code of the Russian Federation are aimed at protecting public order, public morality, and eliminating danger to the life and health of people who, in a state of intoxication, pose a real threat to themselves and others ^[5]. That is why responsibility for drinking alcoholic beverages in public places was first established by the Decree of the Presidium of the Supreme Soviet of the RSFSR of June 19, 1972 "On measures to strengthen the fight against drunkenness and alcoholism". In this legal act, it was said that the commission of offenses related to alcohol consumption causes harm to the health of workers, may lead to the destruction of the family, negatively affects the upbringing of children.

Currently, the relations arising in connection with the use of alcoholic and other related products are regulated by Federal Law No. 171-FZ of 22.11.1995 "On State regulation of the production and turnover of ethyl alcohol, alcoholic and alcohol-containing products and on the restriction of consumption (drinking) of alcoholic products" ^[2]. Chapter 20 of the Administrative Code of the Russian Federation contains the elements of administrative offenses, which, often, simultaneously encroach on both public order and public health. These are, in particular, administrative offenses provided for in Articles 20.20, 20.21, 20.22 of the Administrative Code of the Russian Federation. It should also be noted that in a state of intoxication, various other administrative offenses are often committed, as well as crimes, including serious ones, for example, of a domestic orientation.

All this testifies to the importance of interpreting the legal norms contained in Article 20.20 of the Administrative Code of the Russian Federation both for ensuring public order, normal life of citizens, organizations, government bodies, and for law enforcement practice of internal affairs bodies. It should be noted that the current version of the legal norm contained in part 1 of Article 20.20 of the Administrative Code of the Russian Federation, as the survey of police officers shows, has an ambiguous interpretation, and, as a result, differences in its application in law enforcement. At the same time, there is no legal interpretation that could be contained in regulatory legal acts, as well as resolutions of the Constitutional Court of the Russian Federation and the Plenum of the Supreme Court of the Russian Federation in this area.

Therefore, the task of the study is to develop recommendations for the correct interpretation of the legal norm contained in part 1 of Article 20.20 of the Administrative Code and its application in practice. The result of this should be uniformity in the activities of police officers in the qualification of the composition of the offense, the collection of evidence necessary to establish the composition and the procedural design of the procedure for bringing the guilty person to administrative responsibility. After all, the goal of uniform application and interpretation of the norms of law is to prevent unjustified differences in the application of the same legal norms in various cases ^{[17, pp. 52-55]}.

It should be noted that there are problems in law enforcement practice in bringing citizens to administrative responsibility on the basis of part 1 of Article 20.20 of the Administrative Code of the Russian Federation. In particular, the problem lies in determining the moment when the composition of an administrative offense can be considered complete. Unlike criminal law, administrative delictology does not provide for such concepts as preparation for the commission of an administrative offense and an attempt to commit an administrative offense. An administrative offense is recognized as committed only when its composition is completed. To commit a formal composition, it is sufficient to commit the act of an administrative offense itself, and in the material case, the onset of consequences provided for by the legal norm.

The problems in determining the moment of the end of the commission of an administrative offense provided for in part 1 of Article 20.20 of the Administrative Code of the Russian Federation consist in determining the type of act, and, accordingly, when this act can be considered committed.

With regard to the composition of the offense under consideration, the question arises – can this act be considered committed if a citizen took out a bottle of alcohol in a place prohibited by law, uncorked it and poured it into glasses? Or is it necessary to drink the contents of this bottle to commit this act? The subsequent actions of law enforcement officers depend on the answers to these questions. In the first case, it will be enough for a police officer to provide a video recording of a citizen's actions or witness statements, if any, as evidence. In the second case, the commission of an act must be established by an act of medical examination, in which the doctor must record the presence of a state of intoxication of a citizen brought to administrative responsibility.

These are the questions that are proposed to be answered in our article.

It should be noted that for all the apparent simplicity of this situation, it is not so easy to establish the truth. Thus, the current version of the legal norm contained in Part 1 of Article 20.20 of the Administrative Code of the Russian Federation, which is established by Federal Law No. 7-FZ dated 03.02.2015 "On Amendments to Certain Legislative Acts of the Russian Federation" is set out as follows: "Consumption (drinking) of alcoholic beverages in places prohibited by federal law" ^[3].

Until 04.07.2016, a different version of this legal norm was in effect, which differed, in particular, in the content of the act. In the previous edition, the legal norm sounded as follows: "drinking alcoholic and alcohol-containing products on the streets, stadiums, squares, parks, in a public transport vehicle, in other public places, with the exception of trade and catering organizations in which the sale of alcoholic beverages in bottling is allowed."

In our study, we will not consider the subject of an administrative offense. Initially, it included beer and beverages made on its basis, as well as alcoholic and alcohol-containing products with an ethyl alcohol content of less than 12 percent of the volume of finished products. In the current version, the subject of an administrative offense is alcoholic beverages. In this matter, in our opinion, the changes currently made by the legislator to the structure of the composition are sufficiently clear and definite and do not cause difficulties in interpretation. Problems in law enforcement practice, as shown by a survey conducted in classes on the discipline "Administrative law" among police officers from five regions of Russia: The Moscow, Tver, Tula, Smolensk, Yaroslavl regions are as follows. Police officers who identify this type of administrative offenses face difficulties in determining the content of the act of an administrative offense provided for in Part 1 of Article 20.20 of the Administrative Code of the Russian Federation. At the same time, the leading role in the administrative and jurisdictional activities of the police in this area is played by the Prosecutor's office, which clarifies the legal norms of the article under consideration of the law. At the same time, the interpretation of this article by prosecutor's offices in different regions is not monotonous.

As can be seen from the text of the articles, the legislator changed the wording, adding to it the concept of "drinking" also the concept of "consumption". At the same time, I gave these formulations the meaning of synonyms and put "consumption" in the first place.

Why was this done? What has changed in the understanding of this act and how should this affect the proof of this element of the objective side?

In order to answer these questions, it is necessary to interpret the legal norm contained in part 1 of Article 20.20 of the Administrative Code of the Russian Federation.

The easiest way, at first glance, is to refer to the comments of part 1 of Article 20.20 of the Administrative Code of the Russian Federation. However, in the characterization of the content of the act, nothing new can be found in the question of describing the content of the act ^{[15, p. 387]}. In the comments, either the description of the act from the article is duplicated, or there is a rather vague phrase "establishing the fact of drinking".

At the same time, in the comments to the previously valid version (until 04.07.2016) of the legal norm under study, Professor Yu.P. Solovey together with N.N. Tsukanov noted that "the term "drinking" has a broader meaning than use. Preparation for drinking (an impromptu feast) is not preparation for an offense, but part of this act." A similar interpretation of this legal norm takes place in other comments of this version of the law ^{[13, p.651]}.

In our opinion, the position of the authors who commented on the legal norm in force at that time is clear and unambiguous. In the amended version of the law, this interpretation can no longer be used, and in the current explanations, unfortunately, there is no such certainty, as was noted.

Therefore, it is necessary to look for other ways of interpreting the legal norm. Back in 1901, Professor E.V. Vaskovsky determined that the interpretation of legal norms is carried out through a system of necessary techniques. He wrote the following: "interpretation or interpretation is a set of techniques used in the works of the human spirit in order to understand them" ^{[9, p. 18]}.

In the theory of state and law, there are two main ways of interpreting legal norms that are quite applicable to the interpretation of administrative and legal norms: verbal (grammatical) and systemic.

In accordance with the first method, the meaning of the rule of administrative law is understood, as a rule, in exact accordance with the text.

So, if you turn to the explanatory dictionary of S.I. Ozhegov and N.Y. Shvedova, you can understand the following interpretation of this concept. "Consume" means "use to meet needs, spend" ^{[16, p.615.]}.

As correctly noted by K.S. Belsky and E.Y. Pavlova, this type of interpretation will be sufficient if the legal norms are verbally formulated clearly and the meaning embedded in them is clear from the first reading ^{[9, pp. 3-9.]}.

In our case, it is necessary to resort to a systematic interpretation, which consists in the fact that "any norm subject to interpretation is an integral part of the system - a normative act, a law, a code - and only in this capacity, interacting with other norms, is subject to interpretation and understanding ^{[18, pp. 31-32.]}.

For a systematic interpretation of the concept of "consumption (drinking)", you need to refer to Part 2 of Article 20.20 of the Administrative Code of the Russian Federation, where the composition of an administrative offense is formed by the actions of a person on the consumption of narcotic drugs or psychotropic substances. The content of the act in both parts of the article under consideration of the law coincides in the sense that when consuming alcoholic beverages, consumption occurs as well as when consuming narcotic drugs or psychotropic substances, its ingestion occurs. The differences are in the order of actions, i.e. the methods of the person who uses alcoholic beverages or narcotic drugs. The consumption of drugs, psychoactive substances, intoxicating substances can occur by smoking cigarettes, swallowing pills or by injection. The use of alcoholic beverages occurs through its drinking. 

This thesis is also confirmed by the analysis of judicial practice in this category of cases. In particular, the fact of committing an act in the form of consumption of narcotic drugs or psychotropic substances is established only by an act of medical examination for intoxication ^[6-8].

That is, the preparation by a person of smoking devices or syringes for injections without a doctor's appointment in a public place does not form the composition of this offense.

Similar in terms of understanding are the compositions of such offenses as "Consumption of narcotic drugs or psychotropic substances without a doctor's appointment or new potentially dangerous psychoactive substances" (Part 1 of Article 6.9 of the Administrative Code of the Russian Federation), involvement of a minor in the use of alcoholic and alcohol-containing products, new potentially dangerous psychoactive substances or intoxicating substances (part 1 of Article 6.10 of the Administrative Code RF).

Indirect confirmation of the thesis that it is necessary to bring to administrative responsibility under Part 1 of Article 20.20 of the Administrative Code of the Russian Federation to find a person in a state of intoxication is Article 15 of the Law of the Trans-Baikal Territory of June 24, 2009 No. 198-ZZK (as amended. dated March 4, 2015) "On administrative offenses".

This article provides for liability for "finding a person who has reached the age of 16 with an uncorked bottle (jar) or other container containing alcoholic beverages in places where, in accordance with federal law, consumption (drinking) of alcoholic beverages is prohibited, in the absence of signs of an offense provided for in part 1 of Article 20.20 of the Administrative Code of the Russian Federation.

In our opinion, D.V. Khodukin and V.K. Aulov mistakenly believe that "in its legal sense, this article duplicates Article 20.20 of the Administrative Code of the Russian Federation" ^{[17, pp. 32-37]}.

The legislators of the Trans-Baikal Territory adopted a legal norm in which the content of the act is fundamentally different from the one in Part 1 of Article 20.20 of the Administrative Code of the Russian Federation. The difference lies in the description of the act – an element of the objective side, for which administrative responsibility is provided for in Article 15 of the Law of the Trans-Baikal Territory of June 24, 2009 No. 198-ZZK and Part 1 of Article 20.20 of the Administrative Code of the Russian Federation.

Thus, we can come to the following conclusion. The ambiguous interpretation of the legal norm contained in part 1 of Article 20.20 of the Administrative Code of the Russian Federation indicates that it cannot be recognized as understandable.

The analysis allows us to conclude that the administrative offense provided for in Part 1 of Article 20.20 of the Administrative Code of the Russian Federation can be considered committed from the moment a person consumes alcoholic beverages. Only in this case, the fact of drinking alcoholic beverages can be considered perfect. To prove this fact – the committed act, the police officer must direct the person brought to administrative responsibility to conduct a medical examination for intoxication. The conclusion of the doctor who will conduct a medical examination that the person is intoxicated will be evidence in the case.

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