Administrative liability for ecological violations

General Provisions

Administrative liability for violating land legislation is applied in cases where the act does not reach the level of public danger necessary for criminal prosecution. It is aimed at ensuring compliance with legal norms and protecting natural resources, as well as ensuring order in managing land relations.

For administrative liability to be imposed, it is important that the violation has a wrongful nature, was committed intentionally, and is not a disciplinary offense. The purpose of such liability is not to compensate for property damage, but to prevent and correct the violation, protect the land, and ensure the rational use of natural resources.

Statistics show a significant number of cases of administrative offenses in the field of land and environmental protection, which reflects the relevance of monitoring compliance with environmental regulations. Officials, legal entities, and individuals are held accountable for violating rules on land use, protection of water bodies, rational use of mineral resources, and maintaining land in a suitable condition.

Administrative offenses in the area of land relations include land degradation, failure to fulfill obligations to bring land into a condition suitable for use, violation of rules for protecting mineral resources and water bodies. Such violations are regulated by Chapter 8 of the Code of Administrative Offenses of the Russian Federation, ensuring uniform approaches to holding responsible parties accountable.

Subjects of administrative liability include both physical and legal entities. The law provides for various forms of punishment: a warning, an administrative fine, deprivation of a special right, administrative arrest, disqualification, or suspension of activities, which allows for the effective protection of land resources and ensures their rational use.

According to S.A. Bogolyubov, administrative liability arises if violations in terms of their nature and severity are not socially dangerous and do not result in criminal liability under current criminal legislation¹.

Whereas Yu.G. Zharikov emphasizes that administrative liability arises for the violation of both administrative-legal norms and norms of other branches of law. According to the general opinion of legal scholars, for its application a number of conditions must be present: the offense does not reach such a degree of public danger that would require imposition of criminal liability; the offense is generally not a disciplinary offense (negligence in service, violation of labor discipline), and if it is so, then in this case the unlawful behavior violates not only labor discipline but also the order of management, and liability is imposed by an authority to which the offender does not belong in service; the purpose of imposing liability is not to compensate for the property damage caused².

As noted in the state report "On the State and Protection of the Environment of the Russian Federation in 2010"³, the number of administrative offense cases initiated by officials of Rosprirodnadzor in 2010 amounted to 31,734 units, which is 17% higher than in 2009. The total amount of fines imposed was 939,494.5 thousand rubles, and the amount of fines collected was 581,811.0 thousand rubles, or 62%. In 2010, 15,634 individuals (6,571 in 2009) were held administratively liable, legal entities – 13,302 units (12,087 in 2009), and citizens – 2,124 people (1,706 in 2009).

An administrative offense is defined as an unlawful, culpable act (omission) by a physical or legal entity for which administrative liability is established by the Code of Administrative Offenses of the Russian Federation or by laws of the subjects of the Russian Federation on administrative offenses (Article 2.1 of the Code of Administrative Offenses of the Russian Federation).

According to O.L. Dubovik, an administrative environmental offense is considered a wrongful, culpable (intentional or negligent) act (or omission), which has caused or could have caused harm to the environment and for which administrative liability is provided by legislation, and which violates the ecological order, the rights and freedoms of citizens in the area of environmental protection and use, the right of ownership over natural resources, and the procedures for managing the use of nature⁴.

Specific compositions of administrative offenses in the area of environmental protection and natural resource management are provided in Chapter 8 of the Russian Code of Administrative Offenses. Among them, the following can be highlighted: land degradation; failure to fulfill obligations to bring land into a condition suitable for use according to its designated purpose; violation of requirements for the rational use of mineral resources; violation of rules for the protection of water objects.

The subjects of an administrative offense may be both physical and legal entities. Article 3.3 of the Russian Code of Administrative Offenses (hereinafter - the Code) provides for the following types of administrative penalties: 1) warning; 2) administrative fine; 3) deprivation of a special right granted to a physical person; 4) administrative arrest; 5) disqualification; 6) administrative suspension of activities.

Judicial Practice

To administrative liability under part 2 of article 8.7 of the Russian Code of Administrative Offenses (hereinafter - the Code) for failure to comply with established requirements and mandatory measures aimed at improving, protecting land and protecting soils from wind and water erosion and preventing other processes and other negative impact on the environment that degrade the quality condition of lands, a public authority responsible for managing the land plot which is the subject of the administrative offense may be held liable.

The Federal Service for Veterinary and Phytosanitary Surveillance (Rosselkhoznadzor) of the subject of the Russian Federation received a complaint from a citizen regarding the overgrowth of a land plot designated for agricultural use.

During the inspection conducted by an authorized official, it was found that there is a large amount of waste (shingle debris, old tires, rags, etc.), as well as abundant weed vegetation on the land plot.

According to the extract from the Unified State Register of Real Estate, the owner of this land plot is the subject of the Russian Federation, land category: agricultural lands.

By the decision of the deputy head of the Federal Service for Veterinary and Phytosanitary Surveillance (Rosselkhoznadzor) regional administration, the Committee for State Property Management of the subject of the Russian Federation was found guilty of committing an administrative offense provided for by part 2 of article 8.7 of the Code of Administrative Offenses of the Russian Federation (failure to comply with established requirements and mandatory measures aimed at improving, protecting land and protecting soil from wind and water erosion and preventing other processes and other negative impact on the environment that degrade the quality condition of land), with an administrative penalty in the form of an administrative fine being imposed.

This decision was appealed by the representative of the Committee to court, with the appeal citing that the Committee is not a land user or an economic entity, and does not engage in entrepreneurial activities related to the use of agricultural lands, as it is only endowed with powers of an authoritative and managerial nature, and therefore cannot be considered a subject of an administrative offense under the presumption of guilt.

During the consideration of this appeal, the judge came to the following conclusions.

Part 1 of Article 1 of the Land Code of the Russian Federation, in particular, establishes the priority of land protection as one of the most important components of the environment.

The objectives of land protection include the prevention and elimination of pollution, depletion, degradation, damage, destruction of lands and soils, as well as other negative impacts on lands and soils, and also ensuring the rational use of lands, including for restoring soil fertility on agricultural lands and improving the quality of lands (Article 12 of the Land Code of the Russian Federation).

Paragraphs 1 and 3 of Article 13 of the Russian Federation Land Code provide that in order to protect land, owners of land plots, land users, landholders, and lessees of land plots are obliged to carry out measures to preserve soils and their fertility, and to protect agricultural lands from overgrowth with trees and shrubs, weeds, as well as to protect plants and plant products from harmful organisms (plants or animals, pathogenic organisms capable of causing damage to trees, shrubs and other plants under certain conditions).

Owners of land plots and persons who are not owners of land plots are obliged to use the land plots in accordance with their designated purpose and belonging to a particular category of land, as well as permitted methods of use that should not cause harm to the environment, including land as a natural object; carry out measures for land protection; comply with requirements of urban planning regulations, construction, ecological, sanitary-hygienic, fire safety, and other rules and standards when using land plots; prevent pollution, littering, degradation, and deterioration of soil fertility on lands of the relevant categories; perform other requirements provided by this code and federal laws (Article 42 of the Land Code of the Russian Federation).

As follows from the case materials, in violation of the aforementioned provisions, mandatory measures to protect agricultural land from encroachment by weeds, trees and shrubs on the specified plot have not been carried out, which constitutes the objective side of an administrative offense provided for in part 2 of article 8.7 of the Russian Code of Administrative Offenses.

The land plot in relation to which this administrative violation has been committed, as follows from the extract from the Unified State Register of Real Estate, is owned by a subject of the Russian Federation, that is, constitutes its treasury.

By the decision of the governor of the subject of the Russian Federation, the Regulation on the Committee for Management of State Property of this subject of the Russian Federation (hereinafter - the Regulation) has been approved.

In accordance with the Charter, the Committee for State Property Management of the subject of the Russian Federation (hereinafter referred to as the Committee) is an executive body of the subject of the Russian Federation authorized in the field of property and land relations within the territory of the subject of the Russian Federation, and has the status of a legal entity.

The Committee manages and disposes of property and land plots owned by the subject of the Russian Federation in cases and procedures provided for by current legislation, ensures implementation of measures for reclamation and (or) conservation of lands and land plots, as well as coordinates projects for land reclamation and land conservation projects in cases and procedures established by current legislation, and interacts with federal government bodies and local self-government bodies of the subject of the Russian Federation on issues related to state land supervision and municipal land control.

Thus, from the systemic interpretation of the provisions of the Regulation it follows that the Committee manages and disposes of property and land plots constituting the treasury of a subject of the Russian Federation on behalf of the owner.

At the same time, since the owner of the land plot is legally obliged to carry out mandatory measures for improvement, protection and conservation of land, and the Committee acts on behalf of the owner in relation to this land plot, then the performance of these obligations must be carried out by the Committee.

Based on the above, the judge refused to satisfy the complaint filed by the representative of the Committee.

Source: Overview of judicial practice regarding the application of legislation on environmental protection (approved by the Presidium of the Supreme Court of the Russian Federation on 24.06.2022)

When considering the imposition of administrative liability under part 1 of article 8.28.1 of the Code of Administrative Offenses of the Russian Federation (hereinafter referred to as the "Code") for violating the deadline for submitting (late submission) a declaration on a transaction involving timber, it is necessary to take into account that such a deadline shall be calculated from the date of conclusion (amendment or termination) of the relevant contract.

When holding an individual entrepreneur administratively liable under part 1 of article 8.28.1 of the Code for late submission of a declaration on a transaction involving timber to the unified state automated information system for accounting of timber and transactions with it (hereinafter referred to as "LesEGAIS"), the judge relied on the following.

As follows from the case materials, the person concluded a supply contract for timber on January 31, 2019, and submitted the declaration regarding this transaction to LesEGAIS on February 7, 2019.

On the basis of paragraph 1 of Article 50.5 of the Forest Code of the Russian Federation, legal entities and individual entrepreneurs who have concluded transactions involving timber, including for the purposes of importing into the Russian Federation or exporting from the Russian Federation, must submit to the operator specified in Article 50.6 of this code through the Timber EGAIS system a declaration on timber transactions in the form of an electronic document signed with an electronic signature using general-purpose information and telecommunication networks, including the Internet, including via the unified portal of state and municipal services.

Pursuant to paragraph 3 of Article 50.5 of the Forest Code of the Russian Federation, the declaration on timber transactions must be submitted within five working days from the date of conclusion, amendment or termination of the agreement for the alienation of timber, including for export from the Russian Federation, but no later than one day prior to the transportation of timber.

In accordance with Article 3 of the Forest Code of the Russian Federation, forest legislation regulates relations in the area of use, protection, safeguarding and reproduction of forests, forestry (forest relations); property relations related to the circulation of forest plots, forest stands obtained through the use of forests and the implementation of activities aimed at preserving timber and other forest resources are regulated by civil legislation, as well as the Land Code of the Russian Federation, unless otherwise provided for by the Forest Code of the Russian Federation or other federal laws.

The provision in forest legislation regarding the accounting of timber through the submission of declarations on transactions with it is aimed at combating illegal logging and its sale, that is, at protecting forests. In this regard, relations concerning the submission of declarations on transactions with timber are subject to regulation by forest legislation, which consists of the Forest Code of the Russian Federation, other federal laws and laws adopted in accordance with them by the subjects of the Russian Federation (part 1 of Article 2 of the Forest Code of the Russian Federation).

The LK RF does not contain special rules regarding the calculation of terms provided for by forest legislation, and therefore, based on a literal interpretation of the provisions of paragraph 3 of article 50.5 of the LK RF, the period for submitting the forest declaration begins from the date of conclusion (amendment or termination) of the relevant contract.

Thus, the declaration regarding this transaction with timber should have been submitted by the person to the Forest EGAIS no later than February 6, 2019. However, this information was entered into the Forest EGAIS only on February 7, 2019.

In light of these circumstances, the judge found the individual entrepreneur guilty of committing an administrative offense provided for by paragraph 1 of article 8.28.1 of the Code of Administrative Offenses of the Russian Federation and imposed an administrative penalty in the form of an administrative fine.

Source: Overview of judicial practice on issues of application of environmental legislation (approved by the Presidium of the Supreme Court of the Russian Federation on June 24, 2022)

The person who has not submitted a declaration regarding the transaction with timber is subject to administrative liability under part 1 of article 8.28.1 of the Code of Administrative Offenses of the Russian Federation, regardless of whether the concluded contract was performed.

When considering the case of an administrative offense provided for by part 1 of article 8.28.1 of the Code of Administrative Offenses of the Russian Federation in relation to a legal entity - the buyer under the timber supply contract, its lawful representative applied for the termination of the case due to the absence of the composition of the administrative offense, stating that the contract on the supply of timber concluded by the legal entity on April 29, 2021 was not actually performed by the counterparty, and as of June 15, 2021 (the date of the protocol on the administrative offense), the timber had not been received by them.

When holding the legal entity administratively liable, the judge relied on the following.

In accordance with paragraphs 1 and 3 of Article 50.5 of the Russian Federation Forest Code, legal entities and individual entrepreneurs who have concluded transactions involving timber, including for the purposes of importing into the Russian Federation or exporting from the Russian Federation, shall submit to the operator of the unified state automated information system for timber accounting and transactions provided for by Article 50.6 of the Russian Federation Forest Code an electronic document in the form of a declaration on timber transactions, signed with an electronic signature, using general-purpose information and telecommunication networks, including the Internet, including the single portal of state and municipal services; the declaration on timber transactions shall be submitted within five working days from the date of conclusion, amendment or termination of the agreement on the alienation of timber, including for export from the Russian Federation, but no later than one day prior to the transportation of timber.

Thus, the requirements of Article 50.5 of the Forest Code of the Russian Federation oblige legal entities and individual entrepreneurs who have concluded transactions involving wood to submit declarations on transactions with wood to the operator of LesEG AIS regardless of whether these transactions have been actually performed.

At the same time, rejecting the argument that due to non-performance of the contract by the counterparty transportation of the assumed volumes of wood was not carried out, the judge noted that information regarding the absence of the actual volume of transported wood should be reflected by the legal entity by making changes to the previously submitted declaration on transactions with wood in accordance with paragraph 3 of Article 50.5 of the Forest Code of the Russian Federation.

In view of the above, the legal entity was held administratively liable under part 1 of Article 8.28.1 of the Code of Administrative Offenses of the Russian Federation.

Source: Overview of judicial practice on issues of application of legislation on environmental protection (approved by the Presidium of the Supreme Court of the Russian Federation on June 24, 2022)

The place of commission of the administrative offense provided for in paragraph 5 of Article 8.28.1 of the Russian Code of Administrative Offenses is the place where the unlawful activity in the form of transporting timber without a properly issued accompanying document, as required by forest legislation, was intercepted.

By the judge's decision, the legal entity was held administratively liable under paragraph 5 of Article 8.28.1 of the Russian Code of Administrative Offenses and subjected to an administrative penalty in the form of an administrative fine.

The legal representative of the legal entity appealed against this decision, citing a violation of territorial jurisdiction rules in considering the case.

The judge of the higher court, upon reviewing the issued decision, established the following.

In accordance with paragraph 5 of Article 8.28.1 of the Russian Code of Administrative Offenses, transporting timber without an accompanying document properly issued in accordance with forest legislation entails holding the guilty parties administratively liable.

In accordance with paragraphs 1 and 2 of Article 50.4 of the Russian Federation Forest Code (the norms are provided in the version applicable at the time the circumstances arose that served as a basis for holding an individual administratively liable), transportation of timber, including under a transportation contract, by any type of transport is carried out upon presentation of a supporting document, which contains information on the owner, shipper, consignee, carrier of the timber, its volume, species (type) and sortiment composition, points of origin and destination, number of the declaration of transactions with timber (in cases where transactions were conducted with the specified timber), as well as the number of the state registration mark of the vehicle used for transporting the timber (in cases where transportation is carried out by road transport); the supporting document is issued by legal entities and individual entrepreneurs who are owners of the timber.

Therefore, if the aforementioned requirements are not met, the person who committed the violation is subject to administrative liability.

According to the case materials, the person being held administratively liable on February 13, 2019 at 18:00 at the 15th km of highway N carried out the transportation of wood (birch) without a properly issued accompanying document, thus committing an administrative offense provided for by paragraph 5 of article 8.28.1 of the Russian Code of Administrative Offenses.

At the same time, the judge noted that the argument in the appeal regarding the consideration of the case with a violation of territorial jurisdiction rules cannot be considered justified.

In general, as stipulated by paragraph 1 of article 29.5 of the Russian Code of Administrative Offenses, an administrative offense case is considered at the place where it was committed.

In accordance with the legal position set out in sub-item "z" of paragraph 3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2005 No. 5 "On Certain Issues Arising in Courts When Applying the Code of the Russian Federation on Administrative Offenses" (hereinafter referred to as Resolution No. 5 of the Plenum), when determining jurisdiction it is also necessary to take into account the rules on territorial jurisdiction of cases on administrative offenses established in Article 29.5 of the Code of the Russian Federation on Administrative Offenses; paragraph 1 of this article establishes a general rule according to which the case is considered at the place where the offense was committed; the place where an administrative offense is committed is the place where the unlawful act was committed regardless of the location where its consequences occurred, and if such act has a continuing nature, then the place where the unlawful activity ended or was terminated; if the offense was committed in the form of omission, then the place where it was committed should be considered as the place where the action should have been performed, or the obligation imposed on the person was to be fulfilled.

The objective side of the administrative offense provided for in paragraph 5 of Article 8.28.1 of the Russian Code of Administrative Offenses consists in transporting timber without a properly issued accompanying document as required by forest legislation, meaning that the offense is ongoing. Since this administrative offense was intercepted at the 15th km of highway N, it was lawfully considered by the first instance judge, whose jurisdiction covers this territory.

Source: Overview of judicial practice on issues of application of environmental protection legislation (approved by the Presidium of the Supreme Court of the Russian Federation on June 24, 2022)

Spilling petroleum products on forest fund lands constitutes a violation of sanitary safety rules in forests and is subject to qualification under paragraph 2 of Article 8.31 of the Russian Code of Administrative Offenses.

The judge held the organization administratively liable under paragraph 2 of Article 8.31 of the Russian Code of Administrative Offenses for polluting forest fund lands with petroleum products, and imposed an administrative penalty in the form of an administrative fine.

The legal representative of the organization appealed against the decision, pointing out the absence of the elements of an administrative offense provided for in part 2 of article 8.31 of the Code of Administrative Offenses of the Russian Federation, and the necessity to reclassify the actions under part 2 of article 8.6 of the Code of Administrative Offenses of the Russian Federation.

The decision of the judge of the higher court left the decision unchanged, and the appeal was not satisfied for the following reasons.

Part 2 of article 8.31 of the Code of Administrative Offenses of the Russian Federation provides for administrative liability for polluting forests with wastewater, chemical, radioactive, and other harmful substances, production and consumption waste, and (or) any other negative impact on forests. According to part 2 of article 8.6 of the Code of Administrative Offenses of the Russian Federation, administrative liability arises for destroying the fertile layer of soil or damaging land as a result of violating rules regarding handling pesticides and agrochemicals or other substances and waste production and consumption that are hazardous to human health and the environment.

According to the case materials, a state inspector of the executive authority responsible for federal forest control (supervision) recorded an oil product spill on the land plot, about which an administrative offense protocol was drawn up under part 2 of article 8.31 of the Russian Code of Administrative Offenses.

When initiating the administrative offense case, it was established that the mentioned forest area is located within the boundaries of a forestry district. The legal status of such areas is determined by land and forest legislation. At the same time, the use, protection, preservation, and reproduction of forests are carried out based on the concept of the forest as an ecological system or as a natural resource (article 5 of the Forest Code of the Russian Federation).

The Constitutional Court of the Russian Federation in its decision dated June 2, 2015, No. 12-P "On the case concerning the review of the constitutionality of paragraph 2 of Article 99, paragraph 2 of Article 100 of the Forest Code of the Russian Federation and provisions of the Government Decree 'On Calculation of Damage Caused to Forests as a Result of Violation of Forestry Legislation' in response to the complaint by the limited liability company "Zapolyarn nefte" noted that forest, as a natural resource, is a complex ecological system consisting of soils, underground and above-ground sources, objects of flora and fauna, which are closely interrelated; therefore, negative impact on individual components of the ecological system of forests leads to violation of internal system links, thereby causing damage to the ecosystem as a whole.

The protection of forests, including forest soils, from pollution and other negative impacts is carried out in accordance with the Forest Code of the Russian Federation, the "Law on Environmental Protection" and other federal laws (Article 60.12 of the Forest Code of the Russian Federation).

As the spill of petroleum products on forest soils of the forest fund constitutes pollution of the forest as an ecosystem, the actions of the person who caused the spill have been properly qualified under part 2 of article 8.31 of the Code of Administrative Offenses of the Russian Federation.

At the same time, the judge of the higher court noted that in the event that during the initiation of an administrative offense case it is established that a person has committed one act (omission) containing the elements of both the aforementioned administrative offense and another administrative offense for which liability is provided under part 2 of article 8.6 of the Code of Administrative Offenses of the Russian Federation, it is not excluded that the court may impose an administrative penalty for these administrative offenses taking into account the provisions of part 2 of article 4.4 of the Code of Administrative Offenses of the Russian Federation.

Source: Overview of judicial practice on issues of application of legislation on environmental protection (approved by the Presidium of the Supreme Court of the Russian Federation on June 24, 2022)

Incomplete payment of the fee for negative impact on the environment constitutes the objective side of the administrative offense provided for in Article 8.41 of the Code of Administrative Offenses of the Russian Federation (KоАП РФ).

By the decision of the senior state inspector of the Russian Federation in the field of environmental protection of the subject of the Russian Federation, left unchanged by the judge of the district court, the person was found guilty of committing an administrative offense provided for in Article 8.41 of the Code of Administrative Offenses of the Russian Federation (KоАП РФ), and was subjected to an administrative penalty in the form of an administrative fine.

In the appeal submitted to the higher court, the person requested the annulment of the judicial decisions with the termination of proceedings in the case, arguing that, in his opinion, incomplete payment of the fee for negative impact on the environment committed by him does not constitute the offense provided for in Article 8.41 of the Code of Administrative Offenses of the Russian Federation (KоАП РФ).

However, the submitted appeal was left unconsidered for the following reasons.

According to Article 1 of the Law on Environmental Protection, negative impact on the environment is understood as the effect of economic and other activities whose consequences lead to adverse changes in the quality of the environment.

Pursuant to Article 16 of the Law on Environmental Protection, the fee for negative impact on the environment is charged for the following types of impact: emissions of pollutants into the atmospheric air from stationary sources; discharges of pollutants into water bodies; storage and disposal of waste from production and consumption (waste placement).

According to paragraph 1 of Article 16.1 of the Environmental Protection Law, legal entities and individual entrepreneurs conducting economic or other activities on the territory of the Russian Federation, the continental shelf of the Russian Federation, and in the exclusive economic zone of the Russian Federation that have a negative impact on the environment (hereinafter - entities required to pay the fee) must pay the environmental damage fee, except for legal entities and individual entrepreneurs conducting economic or other activities exclusively on objects of category IV.

Paragraph 1 of Article 16.3 of the Law on Environmental Protection provides that the fee for negative impact on the environment for the reporting period is calculated by persons obligated to pay the fee independently by multiplying the payment base amount for each pollutant included in the list of pollutants, by the class of danger of production and consumption waste, by the corresponding rates of this fee applying the coefficients established by the aforementioned article, and summing up the resulting amounts.

In accordance with paragraph 52 of the Rules for Calculation and Collection of Fees for Negative Impact on the Environment, approved by the Government of the Russian Federation Decree dated March 3, 2017 No. 255, in the event of non-payment or partial payment of the fee within the established period, the fee administrator applies administrative sanctions provided for by legislation on administrative offenses against persons obliged to pay the fee, conducting business and (or) other activities at facilities subject to federal state environmental supervision, and sends information about these persons to authorized executive bodies of the subjects of the Russian Federation.

Thus, a person obliged to pay the fee for negative impact on the environment is subject to administrative liability in the case of partial payment of this fee, i.e., paying the fee in an amount less than the sum of the fee that should be paid when its calculation is correct.

As follows from the case materials, the person held administratively liable violated the requirements of Articles 16 and 16.1 of the Law on Environmental Protection by not paying in full the fee for discharging pollutants into water bodies for the first quarter of 2017, thereby committing an administrative offense provided for by Article 8.41 of the Code of Administrative Offenses of the Russian Federation.

Source: Overview of judicial practice on issues of applying environmental protection legislation (approved by the Presidium of the Supreme Court of the Russian Federation on June 24, 2022)

The landowner is the victim in the case concerning the administrative liability of a person responsible for the unauthorized removal or relocation of the fertile soil layer on their land plot.

By the decision of the head of the department of veterinary and phytosanitary supervision of the Rosselkhoznadzor regional office in the subject of the Russian Federation, a person who is a lessee of a land plot was found guilty of committing an administrative offense under part 1 of article 8.6 of the Code of Administrative Offenses of the Russian Federation, and was subjected to an administrative penalty in the form of an administrative fine for the unauthorized removal of the fertile soil layer from the land plot.

Disagreeing with this decision, the owner of the land plot on which the administrative offense was committed appealed against it to court.

The judge's ruling returned the appeal, as the judge considered that the applicant does not belong to the persons specified in articles 25.1 - 25.5.1 of the Code of Administrative Offenses of the Russian Federation and does not have the right to file a complaint against the decision issued by an official in the case of an administrative offense.

The judge's ruling on returning the appeal was appealed by the owner of the land plot to a higher court on the grounds of its unlawfulness.

In this complaint, it was stated that the complainant is the owner of the specified land plot and currently uses this plot for mowing grass, grazing livestock, and that the actions of the person held administratively liable caused him property damage in the form of damage to agricultural lands, and therefore he considers himself a victim in this case in accordance with Article 25.2 of the Code of Administrative Offenses of the Russian Federation.

When overturning the judge's decision to return the complaint and sending the administrative offense case to court for the stage of preparing the complaint for consideration, the higher court judge relied on the following.

The provisions of Article 24.1 of the Code of Administrative Offenses of the Russian Federation stipulate that the objectives of proceedings in administrative offense cases are to thoroughly, fully, objectively and timely ascertain the circumstances of each case.

In accordance with the provisions of articles 30.1, 30.6 of the Code of Administrative Offenses of the Russian Federation (KоАП РФ), a decision on an administrative offense issued by an official may be appealed by persons specified in articles 25.1 - 25.5.1 of the KоАП РФ to a higher authority, a superior official, or to a district court at the place where the case was considered. Among these persons is also the victim.

In accordance with paragraphs 1 and 2 of article 25.2 of the KоАП РФ, the victim is a physical person or a legal entity to whom an administrative offense has caused physical, property, or moral damage; the victim has the right to familiarize himself/herself with all materials of the case on the administrative offense, give explanations, present evidence, make applications and motions for recusal, use the services of a representative for legal assistance, appeal the decision in this case, and exercise other procedural rights in accordance with the aforementioned code.

According to the legal position expressed in paragraph 11 of Resolution No. 5, based on part 3 of Article 25.2 of the Code of Administrative Offenses of the Russian Federation, the victim's right to participate in the case concerning an administrative offense must be ensured regardless of whether the occurrence of consequences is a characteristic of the composition of the administrative offense.

The considered case was initiated as a result of an inspection into violations committed on a land plot owned by the person who submitted the complaint, who claims that their rights have been violated.

Under these circumstances, the judge's conclusion at the stage of preparing for consideration of the complaint that the administrative offense consisting in the removal of the fertile soil layer of the land plot did not affect the rights of the owner of this land plot was premature.

Returning the complaint without examining the arguments on the merits violates the requirements of the norms of the Code of Administrative Offenses of the Russian Federation, since the circumstances stated by the person who submitted the complaint were not properly checked; the judge who refused to accept the complaint regarding the decision on the administrative offense did not obtain the case materials in the established procedure, and also failed to examine and assess the legal circumstances related to the commission and detection of the administrative offense.

The procedural violation committed is significant because it prevented the necessary conditions from being created to ensure the procedural rights of the landowner, thereby depriving him of the opportunity to exercise his right to appeal against the decision in accordance with Articles 30.1 - 30.2, 30.6 of the Code of Administrative Offenses of the Russian Federation.

Source: Overview of judicial practice on issues related to the application of environmental protection legislation (approved by the Presidium of the Supreme Court of the Russian Federation on June 24, 2022)

The vehicle used for cutting forest plantations is considered a tool for committing an administrative offense provided in part 2 of article 8.28 of the Russian Code of Administrative Offenses, and therefore may be confiscated in accordance with the sanction of this provision.

A protocol on an administrative offense provided by part 2 of article 8.28 of the Russian Code of Administrative Offenses, as well as a protocol for the seizure of chainsaws and the vehicle that served as tools for committing the offense, was drawn up by an official of the federal state forestry supervision authority in relation to an individual entrepreneur who carried out illegal cutting of forest plantations.

The judge's decision found this person guilty of committing an administrative offense provided in part 2 of article 8.28 of the Russian Code of Administrative Offenses, and imposed an administrative penalty in the form of an administrative fine, confiscation of products from unlawful use of natural resources, and confiscation of tools used to commit the administrative offense, including the vehicle belonging to him.

In the appeal against the decision on the administrative offense case, the individual entrepreneur argued that the application of vehicle confiscation was unlawful, as the vehicle was not used for preparing timber and therefore was not a tool for committing the offense provided for in part 2 of article 8.28 of the Code of Administrative Offenses of the Russian Federation.

Refusing to satisfy this appeal, the judge of the higher court relied on the following.

According to paragraph 2 of Article 8.28 of the Russian Code of Administrative Offenses, unlawful felling, damage to forest plantations, or the unauthorized digging up of trees, shrubs, and vines in forests, committed using machinery, motor vehicles, self-propelled machines, and other types of equipment, or committed in a forest park green belt, if these actions do not constitute a criminally punishable offense, entail administrative liability for citizens in the amount from four thousand to five thousand rubles, including the confiscation of products obtained through illegal use of natural resources, as well as the confiscation of tools used to commit the administrative offense or without such confiscation.

Felling of forest stands (trees, shrubs, vines in forests) is recognized as the process of their cutting (including sawing, felling, pruning), as well as other technologically related processes (including skidding, primary processing, storage of timber in the forest), as a result of which timber is produced in the form of forest materials (logs, processed and unprocessed assortments and other forest materials) (part 1 of article 23.1 of the Forest Code of the Russian Federation, point 16 of the resolution of the Plenum No. 21).

As follows from the protocol on the administrative offense and was not contested by the person held administratively liable, during felling of forest stands it used chainsaws as machinery, and the vehicle was used for skidding cut trees within the logging area.

Based on the above circumstances, the judge of the higher court concluded that the vehicle used for skidding felled trees is an instrument of committing an administrative offense provided for in part 2 of article 8.28 of the Russian Code of Administrative Offenses, and therefore it was lawfully confiscated as a measure of administrative punishment in this case.

Source: Overview of judicial practice on issues of applying environmental protection legislation (approved by the Presidium of the Supreme Court of the Russian Federation on 24.06.2022)