International Journal of and Applied Science, ISSN: 2394-7926 Volume-1, Issue-9, Special Issue Oct.-2015 THE REPRESSIVE FORCE OF ADMINISTRATIVE LEGISLATION IN AND RUSSIAN FEDERATION

ELONA BANO

Phd Canditate Marin Barleti University, , Albania We are what we repeatedly do, xcellence than is not an act, but a habit- Aristotele E-mail: [email protected]

Abstract- This paper aims to analyze the administrative legislation in Albania and Russian Federation also to evident the problematics that are meet on the process of administrative reforms in these two countries.It is known the importance of the administrative legislation for the government of one democratic and rule of law state but are not known by everybody the issues that ex-comunist countries have on the implementation of a new administrative legislation which must first of all assure the protection of rights and liberties of citizens on the receivement of state services. This papper is focused mostly on the represive potential of administrative legal norms because usualy is known better the repressive potential of criminal legal norms. This papper has used the methodology of comparative analyse between these two legislations, historical analyse and empiric methodology. The author is studying the administrative reforms in estern European counties because of their specifics in the framework of her doctoral disertation. The aim of this papper is first of all to present the mainly issues that exist in countries with a new democracy in which centralisation of executive power for years have been the main way of organisation of the state.

Keywords- administrative legislation, Albania, Russian Federation, administrative reform, represive power

I. INTRODUCTION into the policy of state repression. As a rule, this characterizes an extreme form of deformation of law- The implementation of a democratic and rule of law enforcement aactivity, in most cases the state based on protection of human rights and liberties implementation of protective nnorms takes place in are the biggest issues for ex-communistic countries lawful law-enforcement form. With the growth of the like Albania and Russian Federation. These two society, its complexity increased and thereby countries are implementing a lot of reforms in presenting new challenges to the administration we criminal, civil and administrative legislation but it is can have the appraisal of the same only when we still after almost 25 years of political plurality very make a comparative study of the duties of the difficult to estabilish democratic reforms. Albania for administration in the ancient times with that of the example has a long path on aderation in European modern times. In the ancient society the functions of Union, but this process of aderation is helping her to the state were very few the prominent among them improve the judiciary and the national legal being protection from foreign invasion, levying of framework. Begining from the January 2015 the Taxes and maintenance of internal peace & order. It Albanian parliament has created a special does not mean, however that there was no parliamentary commision which is working on a administrative law before 20th century. In fact general reforme on albanian constitution, legal administration itself is concomitant of organized system and judiciary. In this reforme is included the Administration. In the modern society, the functions revision of Albanian administrative legislation too. of the state are manifold. In fact, the modern state is Russian Federation has another specific because this regarded as the custodian of social welfare and country as we know do not have in plane to aderate in consequently, there is not a single field of activity European Union at least soon, but having a which is free from direct or indirect interference by population of more than 140 milions of people and the state. Along with duties, and powers the state has more than 1/6 of global surface, for her is very to shoulder new responsibilities. The growth in the important to have an effective administrative range of responsibilities of the state thus ushered in legislation in way to controle the territory and to offer an administrative age and an era of Administrative faster governamental or municipial services to all law. The development of Administrative law is an Russian citizens. Common place of public and inevitable necessity of the modern times; a study of professional consciousness has been occupied by the administrative law acquaints us with those rules fact that prohibiting norms contain certain repressive according to which the administration is to be carried potential, since they are of protective nature, the basis on. for their implementation is an offense and application II. CHAPTER IDEFINITION AND of these norms is associated with bringing to CLASSIFICATION OF ADMINISTRATIVE responsibility. The most pronounced forms of ORGANS enshrining prohibiting norms are criminal legislation and Legislation on administrative offences. However, In Europe and in Albania specialy, the term not always implementation of rohibiting norms turns administration may mean alternatively a body or an

The Repressive Force Of Administrative Legislation In Albania And Russian Federation

70 International Journal of Management and Applied Science, ISSN: 2394-7926 Volume-1, Issue-9, Special Issue Oct.-2015 activity. In its organic meaning, the administration by a law or another legislative act eliberated by the encompasses the State, the local governments and the legislative power. public institutions which depend upon it. In its functional meaning, the administration is also 2. Clasification of administrative institutions by the made up of private corporations responsible for the territorial jurisdiction. execution of administrative public service, whether or - Central institutions of state administration not they exercise prerogatives of public power, as are the instituions which extend their activity all over opposed to those responsible for the execution of the Albanian territory, and their acts are implemented industrial and commercial public service that remains without any restriction all over the Albanian territory. subject to private law and the judicial judge’s control. - Local institutions of state administration, are the institutions which extend their activity in specific But first of all we have to do a difference between and limited territories such as cities, districts etc.. administrative authorities and bodies (public administration) and private administration. The public 3. Clasification of administrative institutions by the administration has as object the fullfilment of duties caracter of their competences and activities that expres state interest. The - Administrative institutions with general administrative power and institutions are strength competencies. Such kind of institutions can interfere legated with the legislative institutions and with in conformity with their territorial jurisdiction, in judiciary power, because the judiciary decisions must every field of administrative activity. Ex. Council of be implemented by administrative institutions. As Ministers, Prime Minister, Mayor. institutions of state administration are clasified the - Administrative institutions with special pucliv institutions which are executive and competencies. This kind of institutions have decisionmaker institutions, which act in conformity competencies in a specific sphere such as: , with Constitution and other laws, in way to organise health etc.. the political, economic and social life in Albania as a state of rule of law requires. The Albanian 4. Clasification of administrative institutions by Constitution does not expresly provide which are the their structure insitutions of public administration in Albania but - Colective institutions indirectly in some articles they are announced. For - Individual institutions. example in art. 60 and 63 or in parag 2 of art 107 is 5. Clasification of administrative institutions by provided the fact that: “The functionaries in public their budget administration are nominated after they have done a - Budgetary administrative institutions are the competition”. The especialy law nr. 8485 dt. bodies that are financed by the central state budget. 12.05.1999 “The Code of Administrative Procedures - Administrative institutions with economic in Albania” at art.3 provided that: “administrative account, that assure their budget from the services institutions are: - the institions of central power which and activities they exercise2. have executive functions; - the institutions of some public entities regarding to their limited III. CHAPTER II administrative functions; - the local institutions which THE REPRESSIVE FORCE OF have administrative functions; - the institutions of ADMINISTRATIVE LEGISLATION Armed Forces and any other structure which`s functionaries have the military status, during the time 3.1 The administrative responsability and repressive in which these functionaries exercise administrative force of administrative law in Russian Federation functions”. 1 The moment, in which the deformation of the whole 1. Administrative institutions clasified by the way procedure of ensuring legality and the rule of law they are formed: takes place, is of interest. It appears that the In way to do a first clasification of administrative repressive capacity of the legislation is implemented institutions we have to see the way of their formation exactly when the law-enforcement mechanism is and implementation. In this category we have: driven by political will, and becomes a way to solve - Administrative institutions which are state tasks. In this case, the activities of the officials provided by the Constitution directly and are clasified of public authorities for bringing to responsibility are as constitutional administrative institutions. due not only to a committed offence, but also to the - Administrative institutions which are not desire to demonstrate to the political leadership their provided by the Constitution and are clasified as loyalty and the proper understanding of the strategic unconstituional administrative institutions but they challenges facing the state. In such a situation, are forseen in especialy laws. They usualy are created consideration of cases turns into a political

2https://sites.google.com/site/juridikal/leksione/legjislacioni- 1 Law nr. 8485/12.05.1999 “The Code of Administrative kombeetar/moduli-iv/kuptimi-i-administrates-shteterore- procedures in Albania” publike

The Repressive Force Of Administrative Legislation In Albania And Russian Federation

71 International Journal of Management and Applied Science, ISSN: 2394-7926 Volume-1, Issue-9, Special Issue Oct.-2015 "campaign", in which the culprits are known in The official interpretation of this concept has turned advance. Legal criteria for an enforcement procedure in a discretionary power of law enforcement agencies, in this case lose their independent significance and what has given rise to two types of consequences: become only the formal terms that must be met in order to prosecute the subjects that have been First, it has become possible to bring to criminal indicated in advance "by the top". We often have to responsibility for negligence or for abuse of official be witnesses of the scene, when the political powers virtually any official who has taken with leadership of the country or region expresses violation any managerial act, even if there are no dissatisfaction with the work of oversight bodies or pronounced harmful consequences. This is made their inaction, the reason of which is the easier by the fact that in these offences there is no unsatisfactory situation in this or that area. such sign as personal interest, personal motive. All As a rule, the response of the competent authorities this allows estimating of an average official does not make us wait. They quickly initiate criminal misconduct (violation of administrative legislation) or administrative cases, begin a frantic search for without personal motive and clearly defined perpetrators, consideration of cases occur without consequences as a crime against the state, the taking into account their essence. Of course, the interests of public service and service in bodies of discontent of senior management is based on real local self-government. Considering the complexity of social problems, and it puts good goals, but the turned into "flurry" complicated procedure of case consideration, multiplied by the traditional for the or the State, bureaucracy desire to do a good turn and "to respond shall be punishable by a fine in the amount of 100 to 200 to the challenges of the time", makes the procedure of minimum wages, or in the amount of the wage or salary, or any other income of the convicted person for a period of one to two bringing to responsibility a repression. The lack of months, or by disqualification to hold specified offices or to clear criteria for the distinction between engage in specified activities for a term of up to five years, or administrative and criminal offences has become one by arrest for a term of four to six months, or by deprivation of of the major threats of the development of state liberty for a term of up to four years. repression in the sphere of administrative law- 2. The same deed, committed by a person who holds a public enforcement. Thus, the objective aspect of many office of the Russian Federation or a public office of a subject of the Russian Federation, or by the head of a local self- administrative offenses is failure to comply with government body, managerial rules by officials, the execution of which shall be punishable by fine in the amount of 500 to 800 is their duty. With that, article 293 of the Criminal minimum wages, or in the amount of the wage or salary, or any Code of the RF "Neglect of Duty" defines corpus other income of the convicted person for a period of five to delicti as non-performance or improper performance eight months, or by deprivation of liberty for a term of up to seven years, with disqualification to hold specified offices or to by an official of its duties due to a dishonest and engage in specified activities for a term of up to three years, or careless attitude to civil service, if this has involved without such disqualification. the infliction of a considerable damage or substantial 3. Deeds provided for in the first or second part of this Article, breach of the rights and lawful interests of individuals and entailing grave consequences, or organizations, or of the legally-protected interests shall be punishable by deprivation of liberty for a term of up to of society and the state. Practically this corpus delicti 10 years, with disqualification to hold specified offices or to engage in specified activities for a term of up to three years. differs from many administrative offences only by Notes: general characteristic of harmful consequences - 1. Persons who discharge the functions of a representative of "considerable damage or substantial breach of the government on a permanent or temporary basis, or by special rights and lawful interests o f individuals or authority, or who perform organizing and regulative, organizations, or o f the legally-protected interests of administrative, and economic functions in state bodies, local society and the state". At that, this characteristic has self-government bodies, governmental and municipal institutions, and also in the Armed Forces of the Russian not received full and complete interpretation except Federation, in other troops, and military formations of the for the cash equivalent of the considerable damage. It Russian Federation are deemed to be officials in the Articles of should be noted that the concept of " substantial this Chapter. breach of the rights and lawful interests of individuals 2. Persons holding offices established by the Constitution of or organizations, or of the legally-protected interests the Russian Federation, by federal constitutional laws, and federal laws for the direct exercise of the powers of state of society and the state" is the only consequence of agencies are understood in the Articles of this Chapter and in one more corpus delicti - "Abuse of Official Powers" other Articles of this Code as being persons holding 3 (part 1 article 285 of the Criminal Code of the RF). government posts of the Russian Federation. 3. Persons who hold offices established by the constitutions or charters of subjects of the Russian Federation, for the direct 3 http://www.russian-criminal- exercise of the powers of state agencies, are understood in the code.com/PartII/SectionX/Chapter30.html : 1. Use by an Articles of this Code as being persons holding posts of subjects official of his powers, contrary to the interests of the civil of the Russian Federation. service, if this deed has been committed out of mercenary or 4. Civil servants and local self-government employees who are any other personal interests and has involved a substantial not included into the category of officials shall bear criminal violation of the rights and lawful interests of individuals or responsibility under the Articles of the Chapter in cases, organizations, or the legally-protected interests of the society specially provided for by the corresponding Articles.

The Repressive Force Of Administrative Legislation In Albania And Russian Federation

72 International Journal of Management and Applied Science, ISSN: 2394-7926 Volume-1, Issue-9, Special Issue Oct.-2015 administrative legislation, controversy of managerial institutions 5 .”. 6 So the functionary is responsable norms, lack of unity of their proper understanding, when he has acted in a guilty mood or not in good the subject of criminal prosecution can become faith7. almost any official who has taken a defective In this case is important to underline that in managerial act. There is a lot of evidence of how administrative process always one of subjects will be uncertainty of these compositions enables to use them the administrative institution and after that if this to settle scores and put administrative pressure. institution considers that the responsability is completly of the public functionary than it can do Secondly, there is an opportunity during the another administrative procces against to this proceedings on cases of administrative offences to functionary. change the status of these cases, transferring them The general conditions in which exists the into the category of criminal ones. Quite often this or administrative responsability are provided by article that case is initiated as administrative, and ends as 14 of The Code of Administrative Procedures of criminal. At that, such dynamics is not always Albania. These cases are: justified by the interests of justice. In recent years, we - Are deliberated some ilegal decisions can see that the heads of the state focused their - Ilegaly is refused to make a decision which attention on the lack of effectiveness of placement is a legal competence of these institutions. public and municipal orders. This criticism was based - Are issued documents with incorrect or on the information about the development of informations which are note true to prive persons. corruption in the field placement public and - When these institutions take measures that municipal orders. Response to the criticism of law are evidently in disporpotionality with the reality. enforcement agencies was expressed in the fact that - When their functionaries comit corruptive without the ability or needed professional level to actions. prove the corruption component in cases relating to the placement of orders, they in an emergency CONCLUSIONS procedure began to try to prosecute officials of customers for any violation of the rules for placement As we have analysed in this paper the responsabilities orders under articles "Neglect of Duty" or "Abuse of of administrative institutions or administrative Official Powers". In fact, there was a process of functionaries are very different and allways they transformation of cases on administrative offenses damage the rights and liberties of citizens causing a into criminal ones, what can be characterized as considerable damage to private persons. repressive policy aimed at addressing the tasks set by the political leadership. All this even more discredited States as Albania or Russian Federation have a long the process of criminal prosecution, and the set goals path ahead to do in way to implement a state of law in were not achieved. which administrative state institutions are not the priviledged categories but are the servers of Albanian 3.2 The administrative responsability and and Russian citizens and their main duty consists on repressive force of administrative law in Albania protection of citizen`s rights and duties and on the delivery of state services for their citizens. The responsability of state administration is a modern concept for Albanian doctrine. One definition Despite the fact that Albania and Russian Federation provides that: “The obligation of administrative is working in way to reform their administrative institutions to recompense the damage they have framework it remains a lot of work to do mostly on caused to the interests of private persons during the Russian legislation in which a lot of important exercice of their public functionsBased on art. 44 of concepts are still not clearly defined by the law. Albanian Constitution to be in the situation in which the administrative institutions are responsable must A novelty for this countries remains the fact that exist 4 elements: 1) an action or an omission to act responsable for the damage that is caused to the that is ilegal; 2) this act must be done by an state citizens can not be allways exclusively the state institution 4 ; 3) the act must have caused institutions but their functionaries too. consequences to the citizens; 4) must exist a causal relation between the first element and the third one. REFERENCES Principialy the institutions of state administration as legal persons are responsable for the demages that are caused by these institutions during the exercise of 5 their duties. Exceptionaly, subjects of administrative The Code of Administrative procedures in Albania, art 14: the institutions of public administration and their functionaries are responsability are not only the institutions but also the responsable for the dameges that they cause to private persons. public functionaries which work in these 6 Prof.Asoc.Dr. S.Sadushi, General principles of public administration, Ed. Luarasi, Tirane, 2013, pg 43 7 Art 4, Law nr. 8510/1999 “For the extracontractual 4 See the clasification on Chapter 1 responsability of state administrative institutions”

The Repressive Force Of Administrative Legislation In Albania And Russian Federation

73 International Journal of Management and Applied Science, ISSN: 2394-7926 Volume-1, Issue-9, Special Issue Oct.-2015 [1]. Prof.Asoc.Dr. S.Sadushi, General principles of [8]. Russian Criminal Code, dt 13.06.1996, Official public administration, Ed. Luarasi, Tirane, 2013, Gazzete Nr. 63, [2]. Prof.Dr. Ermir Dobjani, Administrative Law, Ed. http://www.consultant.ru/popular/ukrf/ Morava, Tirana 2010. [9]. Russian Administrative code, dt. 30.12.2001, [3]. E.G.Lipanov, The repressive force of Official Gazzete Nr. 195, administrative legislation in Russian Federation, www.consultant.ru/popular/koap Scientific Russian, “Vestnik Pags”, Moske 2014, [10]. http://persmin.gov.in/otraining/UNDPProjec [4]. Constitution of Republic of Albania t/undp_modules/Administrative%20Law%20N% [5]. Constitution of Russian Federation 20DLM.pdf [6]. Law nr. 8485/12.05.1999 “The Code of [11]. http://www.russian-criminal Administrative procedures in Albania” code.com/PartII/SectionX/Chapter30.html [7]. Law nr. 8510/1999 “For the extracontractual responsability of state administrative institutions”

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