9.7. Evidence in the case of an administrative offense
9.7.1. Ways of obtaining and fixing evidence
In the process of establishing and evaluating (verifying) factual data attributable to evidence in the case of an administrative violation (hereinafter - evidence), an official authorized to review the case and a person suspected of committing an offense participate.
The objectives of public proof are not only the qualification of guilt, as it is directly provided for in Part 1 of Art. 26.2 of the Code of Administrative Offenses, but also the establishment of circumstances indicative of the suspect's innocence. Thus, the definition of data relevant to evidence and their subsequent analytical investigation are the exclusive prerogative of an official of the administrative jurisdiction body (see Part 3 of Article 1.5 of the Code of Administrative Offenses).
The evidence includes materials (written data) submitted by a public or non-governmental body, organization, institution, media reports, as well as messages and statements of individuals regardless of the form of their presentation. Thus, the receipt of evidence by an authorized official is the reason for initiating a case on an administrative offense (compare part 1 of Article 26.2 and part 1 of Article 28.1 of the Code of Administrative Offenses).
The procedural form that confirms the existence of evidence is the protocol on the case of an administrative offense or the protocol for considering the case, or a protocol on the application of an administrative restraint measure, in which the relevant factual data, including those received orally, or a specialist. Indications of special technical means, also attributable to evidence, are reflected in the protocol on administrative violation (see Part 2, Article 26.8 of the Code of Administrative Offenses).
Evidence in the case of an administrative offense should be obtained by the methods established by the Code of Administrative Offenses; as applied to offenses under the jurisdiction of judges of arbitration courts (see paragraph 3 of part 3 of article 23.1 of the Code of Administrative Offenses), the establishment and evaluation of evidence is determined by the AIC. Information obtained during public control can not be used as evidence in the case of an administrative offense (see Part 3, Article 26.2 of the Code of Administrative Offenses). The methods for establishing and fixing evidence in civil and criminal trials are determined by the Civil Procedure and the Code of Criminal Procedure respectively.
9.7.2. Procedural requirements for fixation and research of evidence
Fixation and analytical investigation of evidence in cases of administrative offenses committed by a natural or legal person are carried out on the basis of various procedural requirements. This circumstance is caused by the rules for initiating a case on an administrative offense and its consideration established by the Administrative Code depending on the status of the offender. The following procedural features are taken into account:
o qualification of the fault of a natural person on the basis of psychological criteria of intent and negligence (see, respectively, part 1, 2 article 2.2 of the Code of Administrative Offenses);
o Qualification of the fault of a legal entity in relation to formal (objective and subjective) criteria (see Part 2, Article 2.1 of the Code of Administrative Offenses);
o the status of coercive procedural measures that can only be applied to an individual (delivery, administrative detention, personal search, etc.) or only to a legal entity (see Article 27.8 of the Code of Administrative Offenses);
o Establishment of circumstances that mitigate or aggravate the administrative liability of an individual, legal entity (compare part 2 and part 3 of article 4.1, and part 1 of article 4.2, part 2, article 4.3 of the Administrative Code)
o the difference in factual data attributable to evidence in cases of an administrative offense, depending on their jurisdiction to arbitration courts (see clause 3, part 1, article 28.1 of the Code of Administrative Offenses) and courts of general jurisdiction (compare clauses 1, 2 Part 1 of clause 3 of Part 1 of Article 28.1 of the Code of Administrative Offenses).
The Administrative Code provides for various requirements for public proof of the guilt of a person suspected of committing an offense, and for assessing evidence when imposing an administrative penalty. In the latter case, the fault of the offender is established, but it is necessary to prove the existence or absence of circumstances mitigating or aggravating the responsibility. In establishing circumstances mitigating responsibility, the principle of presumption of innocence is not applied, since the person's fault has already been established. Thus, the culprit must independently confirm the existence of such circumstances, for example, to submit documents showing compensation for property damage, confirming his material status (in relation to clause 3, part 1, article 4.2 of the Code of Administrative Offenses), or (in repentance) to prove his negative attitude towards the committed offense, specifying the relevant psychological arguments in a written application addressed to a person authorized to issue a resolution on the imposition of an administrative penalty. The presence of circumstances aggravating administrative liability must be established by the person considering the case, but the offender has the right to provide evidence indicating the absence of such circumstances.
Obtaining material, written evidence, their recording and evaluation are carried out at various stages of the case. At the same time, an analytical study of evidence is usually carried out by a person authorized to impose an administrative penalty. When qualifying the circumstances mitigating administrative responsibility, it is necessary to take into account that such circumstances are confirmed mainly by subjective criteria that are not known to be applicable to the offender - a legal entity (see clauses 1, 3-5, part 1, article 4.2 of the Administrative Code). Since the evaluation of arguments that testify to the existence of circumstances that mitigate administrative liability refers to mandatory procedural actions carried out when imposing administrative punishment on a legal entity (see Part 3 of Article 4.1 of the Code of Administrative Offenses), when such arguments are confirmed, the participation of officials of the organization- violator to an offense committed by a legal entity. In the sense of part 3 of Art. 2.1 CoAP correlation of unlawful actions of officials with the act of the offender - a legal entity and correlating the forms of guilt of the person established by Part 2 of Art. 2.1 and art. 2.2 of the Code of Administrative Offenses is an obligatory procedural requirement at the stage of analytical examination of evidence and the imposition of administrative punishment - otherwise qualification of circumstances that mitigate the administrative liability of a legal entity is impossible.
Thus, a person suspected of committing an administrative offense is endowed with additional procedural rights due to the presumption of innocence, only at the stage of obtaining evidence in the case and their analytical investigation. A person guilty of committing a misdemeanor is deprived of such rights when imposing an administrative penalty.
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