Since the beginning of 2016, legislative amendments related to the cancellation of a certain type of inspections entered into force. Many control activities nonetheless remained. Upon the fact of revealed violations, the authorized bodies shall issue acts of an imperative nature - instructions. It is important for organizations and citizens to know in which cases such documents are issued, what are the deadlines for fulfilling the requirements.
The essence of the requirements
Often, as a result of inspections carried out by municipal or state bodies in the activities of legal entities and individual entrepreneurs, various violations are detected.
Upon the fact of discrepancies, an imperative act shall be issued in the form of representations, decisions, decisions, orders of state oversight bodies. Failure to comply with the requirements of the document entails liability under article 19.5 of the Code of Administrative Offenses.
In January 2016, changes were made to the Federal Law governing the protection of the rights of individual organizations and entrepreneurs in the course of supervision and control by state and municipal bodies.
According to the adjustment of legal norms, part of scheduled inspections is prohibited to be carried out more often than once every three years. The unscheduled control measures were not affected. In addition, individual entrepreneurs who have committed gross legal violations and engage in activities dangerous to life and the environment will also subject to more frequent inspections.
For failure to comply with the requirements contained in the orders of supervisory authorities, officials may be held liable in the form of a fine or disqualification for a period of three years.
Signs of regulations issued by regulatory authorities
Imperative documents must have three important features:
- Mandatory character.
- Legality of the act.
- Feasibility of document requirements.
- Reasonable time for execution.
Upon receipt of the order, the official needs to check the document for compliance with these criteria. If the act is issued in violation, the citizen has the right to appeal it within the time limits established by law. If no complaints have been received and the requirements of the order have not been fulfilled, the person will be held administratively liable.
Mandatory character
A sign of binding is that an administrative offense under Article 19.5 of the Code consists of inaction, which resulted in failure to comply with the instructions of the authorized body. If the requirements belong to the group of legal non-normative acts, they are not subject to execution.
The following example of judicial practice can be cited, as reflected in the Resolution of the Fifth Appeal Arbitration Court No. 05AP-7794/2014 of July 18, 2014.
In the framework of the case, a dispute arose between the taxpayer and the oversight body. During the inspection, violations of the law were revealed and a corresponding note was made. An extract from the act was sent to the violator to eliminate shortcomings in the organization's work.
Since the requirements of the regulatory body were not fulfilled on time, the head of the legal entity was brought to justice in the form of an administrative fine under Article 19.5 of the Administrative Code of the Russian Federation.
The taxpayer did not agree with the decision of the inspecting entity and filed a complaint. Due to the fact that the requirement to eliminate violations was issued not by a separate document, but in the form of an extract from another administrative act, the court found the prosecution illegal.
Legality of Act
When checking the proper form of the document, it is necessary to consider the timing of the execution of orders and their legality. According to the norms of legislation, an element of the offense under this article is the legality of a non-normative act.
Judicial practice has established that the lawfulness of a precept issued by an authorized body must be checked and evaluated in each individual case.
If a document is issued to an improper person, not an authorized entity, etc., its non-execution does not entail bringing to administrative responsibility. This position is reflected in the judgment of the EAO Court, issued in the case No. 4-A-27/2014 on May 29, 2014.
List of circumstances to be considered
When considering cases to verify the legality of the issued orders, the court must find out the following facts:
- material grounds for issuing an act of an imperative nature (evidence of non-compliance with legal norms of legislation by the violator);
- compliance with all points of the procedure for issuing an act;
- the presence of the authority of the inspection body to draw up such documents.
The peculiarity of the consideration of cases of this kind lies in the fact that the legality of the issued order is proved by the body itself. If the supervisor failed to prove the lawfulness of holding the official accountable, the case is terminated on the basis of Article 24.5 of the Code due to the absence of an administrative offense.
Compliance with document requirements
The second significant requirement for documents of an imperative nature is the enforceability of the act. The essence of the requirement is that the control body that issued the order must clearly reflect the requirements and form a clear understanding with the offender of what actions the official should (or not) take.
The correctness of the content of the documents and the timing of the execution of the instructions are equally important for the violator and the inspection authorities. This is due to the fact that it is only possible to verify compliance with real requirements. It is impossible to punish for failure to perform actions that are impossible to carry out.
The FAS in the Volga-Vyatka District issued a Resolution in the framework of the trial No. A43-27119 / 2012. In the document, the court indicated that the instructions of the officials containing legitimate requirements must be realizable, contain requirements of a legal nature, real terms of implementation and clearly formulated actions that the violator must perform (or refrain from making them).
The document also noted that the instructions contained in the act of violation should be clearly formulated, set out briefly, clearly, clearly, consistently, readily.
The essence of the feasibility requirement
According to the norms of legislation and established judicial practice, the requirements of enforceability are as follows:
- officials (offenders) must be notified in a timely manner about the content of the published non-normative legal act;
- The document should contain unambiguous, clear language;
- the official must have a real opportunity to correct the shortcomings within the time period established by the authorized body;
- the deadline for the execution of the order to eliminate the identified violations must be reasonable.
Decree No. 2423/13, issued by the Presidium of the Supreme Arbitration Court on July 9, 2013 in case No. A53-19629 / 2012, indicates the importance of the requirements for enforceability and lawfulness of legal non-normative acts issued by authorized authorities.
The Bureau also noted the importance of indicating a timeline for elimination. The instructions, according to the position of the Supreme Arbitration Court, should be implemented within a reasonable period of time. Thus, acts of an imperative nature, issued by authorized state and local bodies, must meet the requirements of legality, legality, enforceability and reality of deadlines.
Failure to comply with these requirements entails the impossibility of bringing the violator to liability under Article 19.5 of the Code. In this case, the guilty person will be acquitted under Article 24.5 of the Code of Administrative Offenses in connection with the absence of an administrative offense.
Types of Violations
The control body that fixes the violations and sets the deadlines for the execution of the verification order is entitled to draw up acts to hold accountable under Article 19.5 of the Administrative Code of the Russian Federation for failure to comply with the requirements of the following mandatory documents of authorized persons:
- The legal decision of the supervisor at the local or state level in the field of non-compliance with legislation.
- Decisions, regulations in the field of export control.
- The act of the antimonopoly federal body on the termination of actions restricting competition in this area, the use of a dominant position in the market, discrimination, unlawful or illegal advertising, unfair competition, violations of antitrust laws, the termination of illegal acts of local or state bodies in the field of trade.
- Decisions, prescriptions of the body engaged in the regulation of monopolies of the natural type.
- Act of the regional state control body in the field of construction of immovable objects by shares.
- Decisions, instructions of the body dealing with regulation of tariffs and prices.
- Act of the regional state control body in the field of construction supervision.
- Decisions, regulations of the procurement supervision authority.
- Act of the executive body of the federal government in the field of procurement of services, goods, works.
- Decisions, instructions of the body engaged in veterinary supervision.
- Act of the Bank of Russia.
- Decisions, prescriptions of the authority supervising in the transport field.
- Act of the executive branch in the field of industrial safety, hydraulic structures.
- Decisions, instructions of the state fire supervision authority, etc.
Types of Sanctions
The punishments for offenses under article 19.5 of the Code are as follows:
- Fine. The size of the monetary sanction depends on the gravity of the offense. For citizens the limit of financial punishment is from one to five thousand, for officials from ten to fifty, for an organization from one hundred to five hundred thousand.
- Disqualification. The period of disqualification of officials is no more than three years.
- Administrative suspension of activities for ninety days. It is provided for by the sixth and sixteenth parts of the article of the Code.
For example, failure to comply with the requirements of the state fire control authorities entails the imposition of sanctions of the following types: disqualification for three years or a fine (for citizens - from two to three thousand, for officials - from five to six thousand, for organizations - from ninety to one hundred thousand).
In order to avoid being held accountable, the perpetrator may file a request for an extension of the time period for the execution of the order.
Bodies, cases under Article 19.5 of the Code of Administrative Offenses
Administrative offense proceedings under Art. 19.5 Administrative Code begins after the compilation of the relevant protocol. It is filled out by a state or municipal official authorized to issue instructions to individual entrepreneurs.
According to Article 28.3 of the Code, protocols are drawn up by employees of the executive bodies of the federal government, their units and bodies of a territorial type, exercising control and supervision in the relevant areas.
Administrative offenses are examined by the following authorities:
- in parts 1, 13, 12, 15, 14 - magistrates' courts;
- in parts 18, 16, 19 - district courts;
- in parts 15, 6 - arbitration courts;
- in parts 2, 2.1., 2.3., 2.2., 2.7, 2.6, 5, 3, 6, 11, 8.1., 20, 17 - courts of general jurisdiction.
In the remaining parts of the article under review, cases are examined by the supervisory authorities that instituted them. If the specified bodies or their officials, having drawn up the protocol, are not entitled to consider the case in the future, they will send the collected materials to the judge within three days from the date of its preparation.
Having received a package of documents, the judge considers the case of an administrative offense for no more than two months. The extension of the trial is possible for valid reasons for another month.
If the case is referred by the officials who drew up the minutes for consideration to another entity (not a court), the duration of the process is reduced to fifteen days. This period may also be extended by one month if necessary.
Offenders and officials who compose a protocol on an administrative offense under article 19.5 of the Administrative Offenses Code of the Russian Federation should remember that the statute of limitations on this norm is no more than three months from the date the expiration of the period for fulfilling the requirements of the order. If the specified time period has expired, it will become impossible to hold the guilty subject liable for failure to comply with the order.
Requirements of acts of a peremptory nature drawn up by officials of the executive bodies of the federal or local authorities must be fulfilled within the time limits set in the document. Otherwise, the offender is threatened with prosecution under article 19.5 of the Code of Administrative Offenses, which includes fines, disqualification and administrative suspension of activity for a period of three months.