The Code of Administrative Offenses, or How the State Punishes Us. Vol-1

The Code of Administrative Offenses, or How the State Punishes Us. Vol-1

Ever since we have been living in independent Georgia, we all share the feeling and are all in agreement regarding what kind of system the Soviet Union was—a system for which human rights and freedoms were unknown. The Soviet system not only failed to protect these rights but, on the contrary, encouraged punishment for them. Accordingly, in our legal space, one of such "last Soviet Mohicans" is the Code of Administrative Offenses, which, just as during the Soviet Union, is used as an "instrument of punishment" and not as a "document for the development of rights." The Code of Administrative Offenses does not respond to the challenges of the time. Herein, I will try to simply explain, using examples, why and on what basis I believe this. In the first part, I will focus more on the inadmissibility of double jeopardy (double punishment), which is prohibited from a constitutional standpoint but exists in our Code of Administrative Offenses. The Code of Offenses - The Mohican of the USSR in Georgia First and foremost, attention should be paid to the fact that this code was adopted on December 15, 1984. The adopting body is the Presidium of the Supreme Soviet of the Georgian SSR, and it is signed by the Chairman of the Presidium of the Supreme Soviet of the Georgian SSR, P. Gilashvili;

a) In Article 12 of the Code, we encounter the term "frivolously presumed";
b) In Article 21, "materials are transferred for consideration to a comrades' court";
c) In Article 105.1, "involving non-specialized construction organizations in the construction of objects for gardening cooperatives";
d) Article 232, point "h": "if there is a resolution of a competent body (official) on the imposition of an administrative penalty or an unrevoked decision of a comrades' court against the person held administratively liable for the same fact";
e) Article 7: "Labor collectives shall develop and implement measures for the prevention of administrative offenses, the identification and elimination of causes and conditions facilitating their commission, and the upbringing of citizens in the spirit of high consciousness and discipline, and strict observance of laws";
f) Article 274: "A resolution on an administrative offense case may be protested by a prosecutor";
g) Article 23: "An administrative penalty represents a measure of responsibility and is applied to educate the person who committed the administrative offense in the spirit of observing laws...";
h) Article 82.3: Violation of the requirements of the "technical regulation for the form of the maintenance logbook of equipment working on refrigerants and reporting";
i) Article 89.1: "Damage to a natural monument";
j) Article 145: "Failure by officials to observe the rules for registering citizens in need of improved housing conditions, removing them from the register, allocating living premises to citizens, and non-compliance with the established deadlines for moving into residential houses and living premises";
k) Article 185.1: "Failure to report the death of a person";

This is merely a small list of the oddities encountered in the law, whereas the list of punishable acts themselves is immeasurably large. This includes the staggering number of times this law has been amended: since the declaration of Georgia's independence (i.e., from 1984 until the writing of this article), 487 amendments have been made to the Code of Administrative Offenses. The Georgian legal space knows no other law of this kind that has been subjected to so many changes. As for the structure of the code itself, unlike other branches of law, normative, procedural, and enforcement norms are all contained within a single law; meaning, one law defines everything. This practice has long been overcome in developed countries; each direction requires a separate code that exhaustively explains every procedural issue.

Article 24 of the Code of Administrative Offenses of Georgia defines the types of administrative penalties. In total, there are eight of them, the most severe being administrative arrest. A fine is also a type of penalty, for example; however, Article 25 of the same code indicates that "for a single administrative offense, a principal administrative penalty or both principal and supplementary administrative penalties may be imposed." Accordingly, a distinction must be made between what is a principal penalty and what is a supplementary penalty. The types of principal and supplementary administrative penalties are:

At first glance, this might seem acceptable to anyone, but if we try to understand the essence of these penalties based on the content of the code itself, we will unfortunately struggle to find an answer. Because the Code of Administrative Offenses only lists the types of these penalties but does not explain when which penalty should be used and by what standard it should be applied. On the contrary, the code points to something else; specifically, according to Article 10: "An administrative offense (misdemeanor) is an unlawful, culpable (intentional or negligent) action or inaction that infringes upon state or public order, property, the rights and freedoms of citizens, or the established order of administration, for which administrative responsibility is provided by legislation." In other words, the code defines what is considered a misdemeanor, but it does not provide explanations regarding the measure of possible responsibility arising from this action. Furthermore, the code distinguishes several forms of committing the act/fault itself, namely:
a) Article 11. Intentional commission of an administrative offense;
b) Article 12. Commission of an administrative offense by negligence;
c) Article 18. Extreme necessity;
d) Article 19. Necessary defense;

As for the difference between these, the code itself indicates that a person is not held liable within the bounds of extreme necessity and necessary defense, but liability arises when an administrative offense is committed intentionally and/or by negligence. This is exactly where the code also has a problem: when and what should be applied by the judge, or by what standard, is not specified in the code. Moreover, the law tells the judge directly that the purpose of the code is "the upbringing of citizens in the spirit of exact and unwavering observance of the Constitution of Georgia and the laws of Georgia, respect for the rights, honor, and dignity of other citizens, respect for the rules of common life, and fulfillment of assigned duties." That is, the law aims first and foremost to educate citizens, rather than to establish the supreme principles of law or equality before the law. In other words, the code considers itself as having parental rights, assuming it can educate the individual, which, according to this very code, strips the individual of their right to individuality. The purpose of a code should never be to educate anyone—this is not the state's business. The state's business is to create a space where the individual can be an individual, not a space where the state believes it wants or is able to educate someone;

In addition, according to Article 6 of the Code of Administrative Offenses, a penalty can be applied both as a principal and a supplementary penalty. To clarify: I, as an administrative offender, could be subjected to both the confiscation of an item and a fine, or I could have an item seized and also be fined—meaning the person is subjected to double punishment for a single act. To put it more clearly, despite the existence of this provision in the law, the purpose of the administrative code does not coincide with what is written in it, and it goes beyond the constitutional legal principle itself. Specifically, the Constitution of Georgia states in Article 11.1: "All persons are equal before the law." Furthermore, Article 31.8 additionally indicates that "No one shall be repeatedly convicted for the same crime." Of course, there can be various interpretations here, arguing that it is not the same crime but only one action, and the law itself allows double penalization for it, etc. However, an action, when committed by an individual, is a single action and cannot be punished dually for that one action. For example, a fair question arises:

Does the state even have the authority to punish a person? Does punishing mean using the legal lever in the hands of the state?
Punishment as a legal lever cannot exist in a state governed by the rule of law; moreover, the law as a lever of punishment contradicts the purpose of the state. The state is authorized to apply responsibility to the individual, but by no means punishment, because granting the authority to punish within the state is the path toward the Soviet Union, toward its substantive core, where "the individual is merely an instrument for the state and not the greatest legal good." We do not have the luxury for the state to turn into a punishing machine; and if it has become one, then what? Where is the all-encompassing word and substance—"justice"—at that moment? In whose hands is it? The judges or the parliament? Let's be honest, when was the last time, or who from these two spheres amazed you with their justice? Is the state truly a "state" if its primary idea is not "justice"?! And if the space for this is becoming smaller and smaller, what is the way out?! Where is the boundary when, in the name of "justice," the "state" will stop punishing "individuals"?

The purpose of the Constitution is to establish a state governed by the rule of law, to implement its principles both in law and in any normative act. If we discuss what the purpose of the administrative code might be, and if we trust the text, it is upbringing. However, the text itself contradicts the Constitution (despite the fact that, according to the code, upbringing is mentioned). The preamble of the Constitution of Georgia does not recognize such provisions: "We, the citizens of Georgia, whose firm will is to establish a democratic social order, economic freedom, a social and legal state, to secure universally recognized human rights and freedoms...". The Constitution does not recognize double punishment of a person for a single act; the measure of responsibility that can be applied to a person cannot take the form of double punishment. In such a case, a conflict emerges between the rights of the individual and the law, when the law becomes a source of repressive impact on the rights of the individual. In such a case, does the individual have the right to civil disobedience?! No one has the right to punish an individual, especially not the state; the individual only bears responsibility. But the substance, decisions, processes, laws, and their interpretations concerning these issues, from the perspective of the individual themselves, resemble "trying to drink the sea from the palm of one's hand," where only faith provides the certainty that sooner or later, the Georgian state will become a just state. Today, however, the reality is simple: "We live in an unjust state"!

The issue of applying double penalties is highly relevant in criminal law, but an act provided for by the Criminal Code is a source of heightened danger, where there is an intrusion into the rights of another individual and a legal good requires protection. Moreover, the Criminal Code, even as the most "legitimate repressive code," does not use the terms punishment or upbringing, despite being a code that protects a higher good. On the contrary, it points to a term that significantly changes the perception of the Criminal Code itself: "responsibility"—"The Criminal Code of Georgia establishes the basis for criminal responsibility." Besides the fact that the Code of Administrative Offenses lacks many definitions, the most important thing that cannot be found in this code is that "In the Code of Administrative Offenses, there is no, there does not exist, the code does not know the presumption of innocence."

Imagine a legal state where for so many years "deprivation of liberty as a measure of responsibility"—i.e., administrative arrest—has been possible. And in that code, the very code by which the state detains a person—intruding upon the greatest legal right, my freedom—there is no "presumption of innocence." And what is the state's answer to this?! Be it the executive, judicial, or legislative branch?! What phantoms is the state fighting this time?!

Of course, the extension of constitutional principles to administrative offenses is possible, but through this code, the state grants a police officer the authority to detain you. And if we follow the structure, the code says that the police officer's action is legal—meaning the detention is legal until a court says otherwise. And in which country does this happen? Yes, the country in whose language I am writing right now. Under the Code of Administrative Offenses, the judge is not provided with a standard regarding "by what standard they must conduct the proceedings." For example:
a) The "beyond a reasonable doubt" standard is not used in this code;
b) The stages of administrative legal proceedings are not defined; the judge has to conduct the proceedings according to their own practice—taking explanations, the questioning stage, the evidence examination stage, granting closing arguments, etc;

Imagine, without all this, the trial of individuals takes place in the common courts of Georgia, where no standard of proof is established, no "beyond a reasonable doubt" standard exists, the stages of the process are undefined, the presumption of innocence is not defined. And finally, the code does not allow the higher instance, the appellate court, to evaluate or dispute the factual circumstances established by the first instance. In other words, you dispute the action you committed solely and exclusively in the court of first instance, but you cannot challenge the fact established by the first instance judge in a higher instance. Even if they establish a completely unimaginable fact, the law has stripped you of the right to make that fact disputable. This is exactly the manifestation of an "unjust state," when it is completely indifferent to the fate of the individual.

The European Court has repeatedly noted that the categorization in the domestic legislation of a legal proceeding cannot be the sole criterion for extending the ne bis in idem principle, enshrined in Article 4 of Protocol No. 7, to that proceeding. If this were the case, extending the prohibition of double jeopardy or punishment to a particular proceeding would be entirely at the discretion of the contracting state, which would lead to a result incompatible with the object and purpose of the Convention (Storbråten v. Norway, Application No. 12277/04, ECHR Decision of February 1, 2007; Boman v. Finland, Application No. 41604/11, ECHR Judgment of February 17, 2015, paragraph 29). Thus, for the purposes of Article 4 of Protocol No. 7 to the European Convention on Human Rights, an administrative proceeding may be considered a criminal proceeding, and the ne bis in idem principle may be interpreted as a prohibition against being tried twice and penalized twice for the same administrative offense.

In law, the principle of ne bis in idem operates, which is a fundamental principle not only of criminal law but also of administrative law and any law where a judicial dispute is being conducted against or by a person. This principle means something simple: "It is prohibited to try and punish the same person twice for the same offense." With the new edition of the Constitution, this right encompasses not only the criminal legal space but other branches as well, including the Code of Administrative Offenses during the peculiar "application of a penalty." It is also noteworthy that this same principle is a direct and immediately applicable principle in international law.

However, today's Code of Administrative Offenses ignores these principles. Even today, our state, through the laws it has adopted, reserves the right to both arrest and fine an individual for the exact same act, as well as to confiscate an item and fine them. Proceeding from the above, this Code of Administrative Offenses, as a "Soviet Mohican" operating in Georgia today, violates human rights. The existence of the Code of Administrative Offenses in this form is unacceptable to the Constitution of Georgia itself; however, changing it, tearing down the old and building the new, requires political will. That is exactly why we are "not developing as a legal state" and find ourselves where we are—in an "unjust state."