Article 3.9 of the Code of Administrative Offenses of the Russian Federation. Administrative arrest (current version)

Terms of administrative arrest

Who should not be subject to administrative arrest?

For what violations is administrative arrest imposed?

Procedure for serving arrest

When committing the most dangerous administrative offenses, in accordance with the Code of Administrative Offenses of the Russian Federation, administrative arrest may be assigned.

The concept of arrest in administrative legislation

Administrative arrest is a type of administrative punishment that consists of keeping the offender in isolation from society.

Administrative arrest is ordered by a judge.

What is administrative arrest? Concept

Administrative arrest is an exceptional form of punishment applied under certain articles of the Code of Administrative Offenses of the Russian Federation, which can only be imposed by a judge. It consists of isolating the offender from society in special places of detention for up to 15 days, and in separately designated cases (Part 1 of Article 3.9 of the Code of Administrative Offences) they can be given up to 30 days.

Under most articles that provide for this type of punishment, administrative arrest is the maximum possible measure and is applied only in cases of very serious violations.

Do not confuse administrative arrest with car seizure, which we wrote about in detail here.

How is it different from detention?

Arrest is a type of punishment, i.e. a measure of influence applicable after consideration of the case, proof of guilt, and the adoption of an appropriate court decision.

Administrative detention is a short-term restriction of freedom, applicable in cases where without this the consideration of the case may go wrong or untimely. The period of administrative detention cannot exceed 3 hours (Part 1 of Article 27.5 of the Code of Administrative Offenses of the Russian Federation), but if the suspect is charged with articles implying administrative arrest, this period can be up to 48 hours (Part 2 of Article 27.5).

This is the main difference between detention and arrest.

The period of detention is taken into account in the total period of the assigned arrest.

Judicial practice under Article 3.9 of the Code of Administrative Offenses of the Russian Federation:

Supreme Court decision: Resolution N 72-AD13-1 of July 25, 2013 Judicial Collegium for Administrative Cases, supervision

Supreme Court decision: Resolution N 89-AD13-1 of 03/04/2013 Judicial Collegium for Administrative Cases, supervision

Supreme Court decision: Resolution No. 19-AD11-3 of July 20, 2011 Judicial Collegium for Administrative Cases, supervision

Supreme Court decision: Resolution N 18-AD16-160 of 09/07/2016 Judicial Collegium for Administrative Cases, supervision

Supreme Court decision: Resolution No. 11-AD16-22 of 12/01/2016 Judicial Collegium for Administrative Cases, supervision

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Who sets the punishment and on what basis?

Let us repeat that punishment in the form of administrative arrest is imposed only by a judge (Part 1 of Article 3.9 of the Code of Administrative Offenses of the Russian Federation). Law enforcement officers can make an arrest, but it is the court that must consider the case and, considering it necessary, apply the arrest.

To which persons can it not be applied?

The list of these persons who are not subject to administrative arrest is clearly established by Part 2 of Article 3.9 of the Code of Administrative Offenses of the Russian Federation. Administrative arrest, as a type of administrative punishment, cannot be used in the following cases:

• Pregnant women.
• Women with children under 14 years of age.
• Disabled people of groups 1 and 2.
• Minors.
• Called up for military training.
• Certain categories of persons who have certain merits to special services (special ranks of the Ministry of Internal Affairs, Investigative Committee, Ministry of Emergency Situations, etc.).

Let us emphasize that we are talking specifically about persons who are not subject to administrative arrest. In cases of detention, different rules are used.

❓ Reader questions

Why has the number of arrests in the Russian Federation increased during the coronavirus period?

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Citizens who do not agree with the introduction of restrictive measures go to unauthorized rallies, and also refuse to obey the demands of police officers who require them to present documents justifying the legality of being outside residential premises. Such actions are qualified under Articles 19.3 or 20.2 of the Code of Administrative Offenses of the Russian Federation, which provide for administrative arrest as punishment. Due to the growing number of people who disagree with the restrictions, the number of people arrested has also increased.

What is the day of serving an administrative arrest?

The punishment in the form of administrative arrest is calculated in days. If the court at 15:45 on 03/05/2020 issued a decision imposing a sentence of isolation from society in a special institution for a period of 5 days, then the sentence will end at 15:45 on 03/09/2020.

It is important to remember that if a person was detained before the court considered the case, then the time of serving the sentence will be counted from the moment of detention.

Is administrative arrest considered absenteeism from work?

Absenteeism is defined as absence from work for the entire working day or for more than 4 hours in a row without a valid reason.

Despite the fact that while serving a sentence of arrest, the employee will be absent from the workplace, it cannot be said that there is no good reason. Thus, administrative arrest cannot be considered absenteeism in accordance with the labor legislation of the Russian Federation.

Minimum and maximum period of administrative arrest

Part 1 of Article 3.9 of the Code of Administrative Offenses defines the possible period of arrest by the concept of “up to 15 days” (in exceptional cases, up to 30, but the examples we are considering do not apply to them). Thus, the maximum period is set at 15 days .

Cases of shorter periods are determined directly by the articles related to traffic violations:

As you can see, for a number of articles there are alternative punishments that can be used instead of arrest. Moreover, administrative arrest is imposed for a period of no more than 15 days, i.e. the court has the right to appoint a shorter period (up to 3, 5, 10 days) of serving the sentence. According to statistics, now the most common sentence is 5 days of arrest.

At the same time, Part 3 of Article 12.8 and Part 2 of Article 12.26 of the Code of Administrative Offenses of the Russian Federation provide an alternative only for persons to whom arrest is not applicable. In other cases, this particular type of punishment will be imposed, and its duration cannot be less than 10 (or more than 15) days.

Only articles of the Code of Administrative Offenses related to traffic violations are indicated. This does not exclude additional punishments if other legal norms were violated at the same time. For example, beatings or damage were caused.

When does the deadline begin?

If the arrest occurs in a courtroom, and before that the perpetrator was at large, the term begins to count from the moment of actual restriction of freedom.

However, it has already been mentioned that the period of arrest includes the time of detention. This means that if the culprit was previously detained and then sentenced to arrest, then the term of the latter will be counted from the moment of delivery (forced transfer - Part 3 of Article 27.5 and Article 27.2 of the Code of Administrative Offenses of the Russian Federation).

Cases of detention of drunk people are separately covered. In accordance with Part 4 of Article 27.5 of the Administrative Code, the calculation of the period of detention of such persons begins from the moment of sobering up, which cannot be more than 48 hours.

For clarity, let's look at an example:

On September 1, a drunk driver was detained, who had previously been deprived of the right to drive a vehicle for a similar offense. He is charged with Part 2 of Article 12.8 of the Code of Administrative Offenses of the Russian Federation. It took two days for the suspect to “come to his senses,” then the court, held on September 4, sentenced him to 10 days of arrest. We calculate from what moment the countdown of the period begins:

• On September 1 and 2, the process of sobering up took place. Based on Part 4 of Article 27.5, this period was not included in the period of permissible detention, and therefore subsequent arrest.
• From September 3 until the sentencing, the detention lasted, and on the 4th a sentence of 10 days was imposed. The calculation of this period begins from the moment the period of detention begins to be taken into account, i.e. from 3.09.
• Accordingly, the administrative arrest lasts (3.09 + 10 days) until 13.09.

This is the most confusing situation. Usually the calculation of the arrest period is obvious.

The procedure for administrative arrest of a person in the Russian Federation

Let's look at a common example of the complete arrest process for a traffic violation. Typically, it consists of the following basic steps:

1. Recording of the offense by a traffic police officer (if the violation is recorded on camera, arrest is not permissible).
2. Determination by the official of the possibility of drawing up a protocol on the spot.
3. If the previous step is not possible, a decision is made to deliver the offender (Article 27.2 of the Administrative Code).
4. Drawing up a protocol of detention (Article 27.4 of the Administrative Code), including information about the official and the offender, the place and time of the offense, its essence. The protocol is signed by both parties, and if the offender refuses to sign, this fact is indicated.
5. Transferring the case to court.
6. Court hearing.
7. Making a decision.

Please note that administrative detention is not a mandatory step. After drawing up the protocol, the offender may remain free until a court decision.

Separately, it should be noted that a personal search and search of a detainee’s belongings is permissible on the basis of Article 27.7 of the Administrative Code, and already in the process of serving an arrest, on the basis of Article 6 of Federal Law No. 67.

It is better to involve a professional lawyer at the court hearing so that rights are fully protected. Read about how to ask your question to a car lawyer for free in another article.

Appeal

The procedure for appealing decisions in cases of application of administrative arrest is described in Chapter 30 of the Administrative Code. The law determines the possibility for persons participating in the case to challenge the decision made by the court. To do this, you will need to file a complaint within 10 days of receiving the document determining the punishment.

The application is submitted to the court. You can submit it directly to a higher authority, or you can forward it through the structure that made the contested decision. The court of first instance, having checked the correctness of the complaint, sends it within 3 days to a higher one.

If the deadline for applying is missed for valid reasons, it can be restored. To do this, you must submit a petition for its restoration. It is usually attached to the complaint itself, since the same judge is competent to consider this issue.

Complaints are not subject to state duty. If the court comes to the conclusion that the reasons for skipping are not valid, then a ruling on this fact is made. Such a document can also be appealed in the general manner.

Complaints in cases of administrative arrest, in accordance with Part 3 of Art. 30.5 of the Code of Administrative Offenses are required to be reviewed within 1 day. Please note that all materials will be subject to verification for all reasons, and not just those listed in the complaint. As a result of the dispute, one of the following decisions may be made:

• leave the resolution unchanged;
• amend it, provided that the new decision does not increase the degree of responsibility of the arrested person;
• refer the case to a judge for retrial;
• transfer the case to the body authorized to verify the materials, due to the lack of proof of the offender’s guilt.

If the result of the consideration of the case at this stage does not satisfy you, then it can also be challenged.

Rights and responsibilities of an arrested driver

In addition to other legal norms, in Russia there is the already mentioned Federal Law No. 67, which regulates the procedure for serving administrative arrest.

Article 7 of this act establishes the rights of the detainee :

• Obtaining information about rights and obligations.
• Safety, health protection, receiving medical care.
• Polite treatment.
• Handling complaints, suggestions, petitions, etc.
• The secret of correspondence.
• Getting help from lawyers.
• Visits with loved ones (based on relevant legislation).
• Storage of records and documents.
• Self-education, use of books, print media.
• Disposal of own funds, but for services and goods, the list of which is clearly limited by law.
• Religious rituals, if they do not violate internal regulations.
• Telephone services paid for by the arrested person in the amount of up to 15 minutes per day.
• 8 hours of sleep in an individual sleeping place.
• An hour's walk during the day.
• Three meals a day.
• Free provision of writing materials.

The exercise of the rights of an arrested person cannot contradict other laws, norms and internal regulations (Part 2 of Article 7 of Federal Law No. 67).

The duties of the arrested person are specified in Article 8 of the law in question:

• Compliance by the arrested person with the order and norms of the law.
• Standards of hygiene, sanitation, fire safety.
• The rights and freedoms of other citizens cannot be violated.
• Measures that harm one’s own life and health, as well as the life and health of other persons, cannot be taken.
• Careful attitude towards property.

For failure to fulfill duties, additional sanctions may be applied based on the relevant provisions of the legislation of the Russian Federation.

Where do administrators serve their arrest?

The place where administrative arrest is served is called special detention centers, which are created on the basis of internal affairs bodies.

Offenders can serve their sentences both in general detention facilities and in solitary confinement. When placing administratively arrested persons in common premises, the requirements regarding the standard area per person of 4 m2 must be observed.

When placing administratively arrested persons, the following requirements must be followed:

• separate accommodation for men and women;
• separate keeping of healthy persons and persons with signs of disease, or those in need of supervision by medical personnel;
• Where possible, smoking and non-smoking offenders are kept separately.

Solitary confinement may be provided to persons upon their request, provided that such a possibility is available in the special detention center.

What can be transferred to the special detention center?

Administratively arrested persons have the right to receive parcels and parcels with the following contents:

• Food;
• essentials;
• shoes, clothes;
• pocket mirrors;
• shaving accessories (straight razors are prohibited).

The list of items that administrative detainees have the right to have with them or receive from outside is determined by the Internal Regulations of special detention centers.

What is a “special detention center for minors”?

In relation to minor offenders, the legislator has established a ban on the use of such punishment as administrative arrest.

At the same time, if there are grounds, by court order, minors can be placed in TsVSNP - temporary detention centers for juvenile offenders.

TsVSNP is not a special detention center intended for serving administrative punishment by juvenile offenders.

Where are other conditions of detention?

Administrative arrest is served in institutions specially created for this purpose . In accordance with Article 3 of Federal Law No. 67, they are divisions of federal executive authorities in the field of internal affairs, financed from the budget.

In common parlance, these institutions are called “special detention centers.” In fact, these can be either separate institutions or combined with other places in which it is possible to isolate the offender from society (in the form of separate blocks).

At the beginning of the term, the violator undergoes a mandatory medical examination to identify parasites and infectious diseases. Persons requiring constant medical supervision must be kept separately from healthy arrestees.

The holding cells are shared, usually designed for 3 to 12 people. The standard area is 4 m2 per arrested person.

How is the sentence served?

After the arrested person is admitted to the special detention center, his fingerprints are taken, his photograph is taken, he is searched and sent to a cell.

There is a bed in the room; the prisoner is given bedding. Prisoners are fed three times a day.

A medical examination is also provided, following which the person may be prescribed medication or transferred to another institution.

Prisoners can receive parcels from relatives. These could be basic necessities, clothing, shoes, food. Before carrying a “delivery” to the arrested person, check the list from Order of the Ministry of Internal Affairs of Russia dated February 10, 2014 No. 83.

Those arrested are kept in closed cells under 24-hour security.

Consequences of illegal administration. arrest

Procedural violations can occur in any law enforcement practice. They also happen during administrative detention or arrest.

In these cases, the arrest must be appealed. Since this type of punishment is imposed only by the court, it is necessary to appeal to higher courts. The complaint must be sent within 24 hours after its receipt (Part 2 of Article 30.2 of the Code of Administrative Offenses of the Russian Federation).

This is a rather labor-intensive process, the essence of which depends both on the offense and on the body that made the mistake (exceeding its authority). It is almost impossible for the most unprepared person to cope with this – it is necessary to involve a professional motor vehicle lawyer in the procedure.

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