On February, 23, 2010, amendments to the Administrative Offences Code came into force. Somewhere they mitigate responsibility for administrative offences as regards the so-called economic offences, somewhere – withdraw such responsibility completely. As is known, the law which mitigates or cancels responsibility has a retroactive force. In this connection the Supreme Economic Court received a number of questions from businessmen. How to use in practice this retroactivity with respect to earlier decisions of controlling bodies? This and other questions were answered by Dmitry Alexandrov, a judge of the Supreme Economic Court of the Republic of Belarus within the framework of “Argument” Law Group senior partner Denis Aleinikov’s "The Letter of the Law" program.

On adoption of Regulation No. 98 that came into force on February, 23rd, of the current year, the Administrative Offences Code broadens range of criteria which allow usage of retroactive force, namely, cancellation or alteration of administrative responsibility for an offence, elimination of illegality of a deed.

Retroactive force of a law, which improves position of a private businessman whom administrative penalty was imposed on, for an offence committed before February, 23rd, 2010, also covers persons with respect to whom relevant state bodies had taken the decision on administrative penalty in case such decision was not yet carried out.

On the whole, I’d consider the amendments to the Administrative Offences Code as a measure of improvement of business climate and, to some extent, as certain ‘economic amnesty’ with respect to illegal deeds committed before adoption of the given act of legislation which improves position of a private entrepreneur in comparison with earlier years.

Let’s have a look at the norms secured in Article 1.5 of the Administrative Offences Code. There is an interesting provision there which runs: ‘Since the day of coming into force of the act of legislation eliminating illegality of a deed, this respective deed committed before coming into force of the above, is not considered to be an administrative offence. How is this norm applied in practice? Suppose, an enterprise didn’t register its prices when it was obligatory. And then, an act of legislation was adopted which cancelled this obligatory registration. It seems that now enterprises don’t have to bring their documents to conformity with the past legislation? How will it be regarded during a check-up?

In practice of regional economic courts and Minsk economic court, in practice of the Supereme Economic Court with respect to the aforementioned courts there quite often happened cases when the body which was carrying out a check saw elements of offence in a deed, entailing responsibility for violations in price formation, non-registration of prices. So, relevant protocols on administrative offences were drawn up. Authorized bodies conducting the administrative process took corresponding decisions on imposing administrative penalties. Complaints on such decisions were addressed to economic courts. After it was found out that a legislative act came into force in the form of decree on amendments to Regulation No. 285 which changed the procedure of price formation and approach to it, the decisions on imposing an administrative penalty were cancelled and cases on an administrative offence were dropped in accordance with Article 9.6 which envisages, as one of the reasons for termination of such cases, coming into force of an act of legislation eliminating illegality of a deed.

That is, if a private entrepreneur didn’t follow the procedure of price registration and later the procedure itself was cancelled, then he can’t be punished in accordance with the legislation active at that period?

Indeed, even if an offence took place in the past, a controlling body, taking into consideration Article 1.5 of the Administrative Offences Code which ensures norm of direct action with respect to application of retroactive force, is not supposed to decide whether to apply this norm or not; it must apply it. And if at the moment of consideration of an offence the latter ceased to be illegal then, accordingly, there will be no responsibility.

Regulation No. 98 gives to a person who was brought to administrative responsibility or with respect to whom an administrative protocol was drawn up before February, 23rd, 2010, but was not considered during 15 days after the above regulation came into force, the possibility to initiate the procedure either of consideration of application of retroactive force of this law at the stage of consideration and estimation of this deed by a competent body or, if the term of appeal has expired, to initiate the issue of termination of execution in the unexecuted part of the decision through Article 13.4 of the Administrative Offences Procedures Code.

And what if the decision has already been fulfilled?

If the decision has already been fulfilled the lawmaker gives no possibility to initiate the procedure of application of retroactive force in the form of termination of execution, as he placed emphasis on the possibility of this procedure only if the decision on a penalty has not been fulfilled.

There were such cases. I can’t say they were many, but reference to correspondence of Article 1.5 in previous version and of Article 13.4 was at the stage of execution of necessity for termination of execution in view of adoption of the legislative act which eliminates illegality of a deed and cancels administrative responsibility. In particular, Decree No. 9 on turnover of liquid oil fuel some time back amendments were introduced and one of the private entrepreneurs who brought to Belarus liquid oil fuel by railway transport was brought to administrative responsibility for violation of the procedure of delivery of this article to the territory of Belarus. The violation consisted in accompanying documents being not properly executed – this concerned marking with special control signs.

At the stage of execution of the decision changes have taken place and the reference to pipeline transportation and railway transportation was excluded from the Decree. The above entrepreneur approached the body which was executing the decision with a request to apply to him retroactive force of the law as improving his position and eliminating illegality of the deed, because he was bringing fuel by railway transport. The execution of the decision was stopped by the economic court referring to the fact that changes in the Decree improved the position of the given subject and Article 13.4, ordering to stop the execution, was realized.

If, for example, in one year, obligation to mark with control signs this type of goods delivered by any transport, will be introduced again – what can a private entrepreneur be held responsible for and from what moment? Can complaints be lodged against him on past violations, when an analogous normative act was in force?

This is exactly the question about the reverse of the medal as regards the institute of retroactivity of the law. The law on normative legislative acts tells that a legislative act which worsens the position does not have retroactive force. That’s why a deed which later on will be considered as illegal, but which was committed before adoption of such act, will not be regarded as a violation.

How many constituent elements of an offence where administrative responsibility is canceled or mitigated or non-usage of obligatory confiscation as a measure of responsibility is envisaged are to be found in the Administrative Code presently? What constituent elements can we talk about as regards the so-called economic offences?

If we talk about the number of articles of the Special Part of the Administrative Code which underwent changes so as to talk about improvement of the position of private entrepreneurs, about mitigation of administrative responsibility, about eliminating of illegality of a deed or canceling of responsibility – then there are quite a number of such articles. As for constituent elements which are directly considered by economic courts, we can mention, for example, Article 12.7 (‘Illegal Conducting of a Business’), Article 12.30 (Turnover of Liquid Oil Fuel’), Article 12.35 (‘Turnover of Goods to be Marked with Identification Marks’).

In what sequence should a businessman act if before February, 23rd, a decision was taken on him which envisages confiscation of his goods, earnings, and after February, 23rd, the provisions of the Article changed and confiscation is not obligatory any more? Does it mean that somebody will surely relieve him of such penalty of confiscation or there is a special procedure according to which he can request cancellation of this very penalty? How must a legal entity act?

In the cases when additional penalty was decided on by way of confiscation and it was submitted for execution, the first thing the subject in question should think about and should try to do, is to approach the service of court executors with an initiative to stop the proceedings based on Article 13.4 of the Administrative Offences Procedures Code. But there is a certain subtlety about the way the procedure will go – whether retroactivity of law to such decisions will be instant (without consideration of some issues) or these issues, nevertheless, will be considered.

Indeed, the lawmaker ensured the possibility not to resort to confiscation, still he didn’t cancel it with respect to the articles for which economic courts are competent to take decisions. That is, possibility of usage of this penalty remains and this issue has not been explicitly settled by court practice yet. For example, a decision on imposing of an additional penalty can be reviewed on appeal if the person on whom a penalty was imposed approaches the High Economic Court within the terms envisaged by the Administrative Offences Procedures Code for lodging such complaint. If the person doesn’t follow this procedure but says that retroactivity should be considered at the stage of execution, one can come across the reverse of the medal. I am not inclined to state that we necessarily, looking back at the retroactive force of the law, should immediately stop execution of this part. Whether to resort to confiscation or not is the issue decided only by the body which considers the administrative protocol in essence. A court officer is not authorized to do this. Ideally, this issue should be considered by a court at the stage of reviewing the decision on the complaint of this subject and conclude whether it is possible not to use confiscation as regards the given person.

Term of appealing of decisions on administrative offence which came into force is not quite long. Why?

During the lengthy period of developing of the draft law which became Regulation No. 98, there were proposals both from state bodies and business communities to extend the term of appeal from six months to one year for administrative offences. In one of the drafts it was proposed to extend the term to one year. Nevertheless, after February, 23rd, we found that the lawmaker had not changed this term and it remained as before - six months. Still, a considerable step forward was made: if a person whom administrative responsibility was imposed on managed to lodge a complaint to prosecutor against the decision which came into legal force, the latter, if he finds grounds for lodging the complaint has the right to lodge it beyond this 6 months’ term. In this case he, as a body authorized to carry out activities of general supervision, is not bound by this term.

Can one exercise his right for retroactivity of law if appeal term for the decision of a controlling body which came into legal force has expired?

I think – yes, if the decision has not been executed. The lawmaker does not specify whether complete or partial execution is meant. Time will show in which way courts or bodies which fulfill decisions will handle this issue in practice. But there is also an opinion that if the lawmaker talks of possibility of applying retroactivity of law including also a person on whom a penalty was imposed but the decision was not fulfilled, one can conclude that it is possible to stop the execution or modify the decision in the part concerning usage of retroactive force of law, even in the non-executed part.

And if the decision was taken two years ago and has not yet been executed, will the provisions of Regulation No. 98 which came into force on February, 23rd, be applicable for it?

I think they will, as in the Administrative Offences Procedures Code the lawmaker does not say anything about time limitation of execution.

But appeal term has expired…

Nevertheless, at the stage of execution one can quite definitely put the question before the body which is carrying out such decision.

Can one ask for reviewing of confiscation as this question can’t be put before the executive body? This question must be put before the court? What to do in this case? Procedural term has expired, the decision has not been executed.

If we should go by the way of forming the practice of evaluation of possibility not to resort to confiscation, as the lawmaker allows after February, 23rd, then either method of appealing or addressing attorney with a complaint can’t be used after expiry of these terms. If a person approaches the body which is executing such decision, then it must not be ruled out that application of retroactive force may be refused with explanation that this issue should be considered in essence.

If an administrative law cancelled the responsibility for certain administrative offences, what measures does a private businessman have the right to undertake? Does he have the right to apply retroactive force by approaching the bodies which execute decisions?

He has such right at the stage of execution and guided by Article 13. 4. There can be two scenarios of subsequent events: the first is the initiative of the person himself whom administrative responsibility was imposed on and this responsibility is hanging over him like the sword of Damocles, and the second – when the body which is to execute the decision can itself initiate the procedure of termination of execution. But I think that only the person whom administrative responsibility was imposed on should be interested in the fate of this decision. This is in the applicant’s interests, he himself should initiate the consideration of this issue.