You can’t issue a fine without a gun.
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The White House has decided on the procedure for implementing the presidential order to delineate the powers of security forces and control and supervisory authorities in relation to business. At meetings with the head of the government apparatus, Dmitry Grigorenko, it was decided for now to send to the State Duma a bill to exclude the possibility of the Ministry of Internal Affairs to initiate cases under 46 articles of the Code of Administrative Offenses. However, there are 197 such articles of “double effect” in total, and the remaining ones will require detailed consideration of the possibility of their removal from the sphere of activity of the Ministry of Internal Affairs. The results of this “sorting” will be taken into account in the amendments to the second reading; The bill has been sent to the GPU and has not yet been submitted to the State Duma. Isolation of the police from economic activity should improve the business climate, but may intensify the struggle for power in the security bloc.
In the process of delimiting the powers of control and supervisory authorities and the police in case of violations by business of the Code of Administrative Offenses on behalf of the president, a conflict arose. The government, we recall, expects to prohibit the police from punishing entrepreneurs for violating mandatory requirements, the fulfillment of which the authorities require as part of control and supervisory activities—Kommersant wrote about such a bill from the Ministry of Justice on September 25. Its main contradiction from a business point of view was the incompleteness of excommunicating security forces from monitoring violations of the Code of Administrative Offenses due to the clause on their preservation for the “protection of legally protected values.” However, during a number of meetings with the head of the government staff, Deputy Prime Minister Dmitry Grigorenko, who oversees the legislative activities of the White House, in a number of cases the need to maintain the possibility of police participation in control activities was confirmed – we are talking, for example, about the need to “use physical force and special means , administrative detentions or delivery” (for example, if violators ignore the requirements of controllers or threaten them).
As a result, the White House was faced with the task of balancing the interests and risks of three types of participants in the process: companies, controllers and security officials. According to Kommersant, the government apparatus is still hoping to solve it taking into account the experience of the “regulatory guillotine” (the need for mandatory requirements for companies was considered by regulators and business in working groups with a parity composition, and decisions were made by consensus). When discussing each of the 151 “controversial” articles of the Code of Administrative Offences, the opinions of all three parties will also be taken into account, says Kommersant’s interlocutor in Mr. Grigorenko’s secretariat.
The reasons for analyzing the feasibility of maintaining the participation of the Ministry of Internal Affairs in the prosecution of violations under certain articles of the Code of Administrative Offenses, in addition to the direct need for force powers to fix them, will be the traditional threats to “the life and health of citizens”, “significant harm to the environment”, as well as the shortage of employees of the relevant control or supervisory body and allowing for arbitrary interpretation of “sensitivity of the area” and “reduction in the level of security in the specified area.” The list of 46 articles of the Code of Administrative Offenses, for which it was decided to abolish the powers of the Ministry of Internal Affairs, corresponds to this logic: so far it includes “unauthorized occupation of a land plot” (controlled by Rosreestr), “violation of the terms of a license for the use of subsoil” (Rosprirodnadzor, Rostechnadzor), “ violation of the rules for organizing activities for the sale of goods in markets” (Rospotrebnadzor, Ministry of Emergency Situations), etc.
The business and legal communities expect that the division of powers will reduce pressure on business, but the effectiveness of the solution will depend on the practical work of selecting duplicate teams. The head of the expert center on criminal legal policy and the execution of judicial acts of Business Russia, Ekaterina Avdeeva, notes that the police actually perform the duty of inspections within the framework of the Code of Administrative Offenses under some articles. “However, there are a number of articles where a conflict arises today, when the police are not deprived of the right to conduct an inspection, but in essence this inspection should be carried out by a special body,” she says, confirming the need to analyze those inspections that were classified as problematic, and a clear separation of clauses – eliminating duplication of functions of inspection bodies with a clear indication of which articles it relates to – this gives a much greater chance of uniform and clear enforcement. The head of Saunin Law Practice, Andrey Saunin, agrees with her: “The absence of duplication of functions, as a rule, brings positive changes to protect the interests of victims and for the state.” At the same time, practice will show how effectively the bodies authorized to exercise control can exercise it, he adds.
The results of a detailed consideration of the controversial articles, according to Kommersant, are planned to be submitted to the State Duma as amendments to the second reading of the Ministry of Justice bill. It itself, as a document of joint jurisdiction, has so far been sent for consideration to the Main Legal Directorate of the President before being submitted to the State Duma.
Of particular interest in the redistribution of powers of security forces and inspectors, we note, is the joint participation in it of the government and the Prosecutor General’s Office. According to the latter’s response to Kommersant’s request, based on the results of inspections in 30 regions in 2021–2022, the amount of “gray” administrative pressure of the Ministry of Internal Affairs on business (in the form of administrative protocols drawn up based on the results of “extra-procedural inspections without registering incident reports under the guise of consideration appeals or operational search and other activities”) is estimated at 65 thousand – and this is only the documented array. The transition of the business environment to a greater extent under the control of the executive branch, from the government’s point of view, should improve the business climate. Obviously, it will also strengthen the control of the prosecutor’s office over the Ministry of Internal Affairs and the “focus” of the police on direct tasks, but it may entail a new redistribution of powers within the security bloc.
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