Proving in cases of administrative offenses provided for in Article 6.1.1 of the Administrative Code of the Russian Federation (Beatings)

Vodianaia Mariya PhD in Law Associate Professor at the Department of Administrative Law and Administrative Activities of Internal Affairs Agencies of Omsk Academy of the Ministry of Internal Affairs of Russia 644092, Russia, Omskaya oblast', g. Omsk, ul. Pr. Komarova, 7 vodimash@mail.ru Other publications by this author

Lyashuk Anna Valer'evna PhD in Law Senior Lecturer at the Department of Administrative Law and Administrative Activities of Internal Affairs Agencies of Omsk Academy of the Ministry of Internal Affairs of Russia 644092, Russia, Omskaya oblast', g. Omsk, ul. Pr. Komarova, 7 monsegur55@mail.ru Other publications by this author

The bodily inviolability of a person, being an inalienable right inherent in every individual, belongs to the jurapersonarum (the rights of the individual belonging to any person) and its safety is respected by everyone during the normal process of the life of society. Encroachment on bodily integrity forms the composition of several torts, in particular beatings. The commission of the illegal act under investigation is a very common phenomenon. This is due to both the high latency and its everyday nature. The number of administrative offenses committed under Article 6.1.1 of the Administrative Code, according to the data of the Main Information Analytical Center of the Ministry of Internal Affairs of Russia, for 2020 amounted to 240905. The frequency of beatings is a determining factor for the recognition of this offense as one of the most registered types of administrative offenses in the duty units of the internal affairs bodies ^[1] and in the district police commissioners ^[2]. To date, there are many difficulties regarding the correct qualification of this act, in particular, the differentiation of the sectoral competence of a particular offense or crime. The issues of administrative coercion are classic for the theory of administrative law, however, despite this, they do not cease to be relevant ^{[3, p. 57]}. These issues are subject to careful study in order to improve the quality of the work of the internal affairs bodies in this area, which, in turn, will ensure that the interests and rights of all participants in certain legal relations arising in the process of qualifying offenses are respected.

Legally, the definition of "beatings or other violent acts" is not fixed, which leads to difficulties in making a decision on the guilt of a person. The objective side of this offense can be expressed in various actions that cause pain to the victim: beatings or other violent acts. The place of the beating can also be different and depends, as a rule, on whether there is a connection between the delinquent and the victim. Most of the beatings are committed in residential premises, territories adjacent to them, however, there is a certain proportion of offenses committed in public places. A high level of latency is characteristic of beatings in the family and household sphere. The family is the most important and oldest form of association, as well as the first stage of social interaction. In modern conditions, there are often families with deviant behavior of one or both spouses. In pseudo-prosperous families, marginal families, between cohabitants or former spouses, administrative offenses are often committed on the basis of family and household relations. Of particular concern is the involvement of minors in this process who, due to their age, are unable to fully protect their rights, including the right to bodily integrity ^{[4, p. 58]}. Employees of the internal affairs bodies (mostly district police officers), who are empowered by law to commit actions aimed at attracting persons guilty of committing this offense, face a wide range of problems in proving the guilt of offenders.

Proving and collecting evidence are closely related to the activities of authorized entities in order to establish the true facts.Thus, involved in the process of collecting evidence and evaluating it are, first of all, police officers authorized to draw up protocols on administrative offenses, magistrates whose competence includes making decisions on cases of administrative offenses provided for in Article 6.1.1 of the Administrative Code of the Russian Federation, as well as prosecutors overseeing the legality of actions (omissions) and decisions of police officers ^[5].

An analysis of law enforcement practice under Article 6.1.1 of the Administrative Code of the Russian Federation, including an analysis of court decisions and protocols drawn up by police officers, shows that, despite the fact that according to Article 26.1 of the Administrative Code of the Russian Federation, evidence in the case of an administrative offense is any factual data, as well as other circumstances relevant for the correct resolution of the case. Most often , law enforcement officers rely on the following provisions: 1) the protocol on an administrative offense under Article 6.1.1 of the Administrative Code of the Russian Federation; 2) explanations of the person against whom the proceedings on an administrative offense are being conducted; 3) testimony of the victim; 4) expert opinions; 5) other documents (police reports, certificates, etc.). There are often no inspections of the scene, it is often possible to face situations of making decisions on cases without expert opinions (results of examinations).

The most common procedural shortcomings that force the court to make a decision on the need to return the protocol are the absence in the materials:

data on calling the victims, explaining the rights and obligations, responsibility for knowingly false testimony;

evidence confirming the objective side of the administrative offense;

indications of exactly what actions constituted the objective side of the administrative offense;

incompleteness of the presented evidence.

In isolated cases, it was recorded that there was no document in the verification materials (certificate of verification under the module "Administrative Practice" of the SOP) confirming information on the absence of resolutions that had previously entered into force in the case of an administrative offense 6.1.1 of the Administrative Code of the Russian Federation.

In the Review of Judicial Practice of the Supreme Court of the Russian Federation No. 5 of December 27, 2017 ^[6], there are provisions that note that the circumstances of the case of an administrative offense under Article 6.1.1 of the Administrative Code of the Russian Federation can be established, firstly, on the basis of the results of an administrative investigation, and secondly, on the basis of measures implemented in other forms provided for by law. This circumstance determines the diversity of both the data themselves, acting as evidence in the case, and the procedural forms in which they are clothed. The most common procedural procedure is the initial application of the norms of criminal procedure legislation, and then retraining and, as a result, registration of administrative and jurisdictional proceedings. Therefore, it is rare for the case materials to contain a determination on the initiation of an administrative offense case and the conduct of an administrative investigation, however, this is not a procedural flaw. As a negative point, one can only point to the increasing burden on the magistrates' courts, which are entrusted according to Article 23.1 of the Administrative Code of the Russian Federation with the authority to consider cases of an administrative offense initiated on the grounds of the absence of elements of crimes provided for in Articles 115 and 116 of the Criminal Code of the Russian Federation ^[7].

When studying cases of administrative offenses provided for in Article 6.1.1 of the Administrative Code of the Russian Federation, a problem was identified, which consists in the impossibility of conducting an inspection of the place of commission of an administrative offense ^{[8, pp. 134-138]}. It is possible to implement this procedural action only in accordance with the criminal procedure legislation. Unfortunately, this extremely important means of proof is not available to law enforcement officers due to a legislative ban.

In the law enforcement activities of police officers, there are a number of problematic issues related to the consideration of materials under Article 6.1.1 of the Administrative Code of the Russian Federation. In particular, it is not uncommon for citizens to be detained for a fight, during which one or both of them were beaten, causing physical pain and moral suffering. Both of them admit this fact in explanations or deny it, they have no claims against each other, they refuse to write a statement. There is no institution of private prosecution in the Administrative Code of the Russian Federation.

There are often situations when the victim, having initially applied for a beating, later for various reasons refuses to undergo a forensic medical examination, the conclusion, according to the results of which, is one of the main sources of evidence in the case of an administrative offense. There are incidents when the victim(s) seeks medical help, but refuses the subsequent examination, having reconciled with the person who inflicted the beatings. A logical question arises: which of the conditions stipulated in Article 24.5 of the Administrative Code of the Russian Federation in such a situation will be the basis for termination of the proceedings in the case, since the Administrative Code of the Russian Federation does not establish rules on reconciliation with the victim.

There is an opportunity to send materials to the court, where the judge can dismiss the case and limit himself to an oral remark if the offense is insignificant, in accordance with Article 2.9 of the Administrative Code of the Russian Federation. However, in most regions, there is a practice of returning materials for revision without a conclusion based on the results of a forensic medical study, with the motivation that it is impossible to exclude the corpus delicti provided for in Article 115 of the Criminal Code of the Russian Federation. In this regard, in some regions there is a practice according to which injured persons who evade the passage of a forensic medical examination are brought to justice under Part 1 of Article 19.3 of the Administrative Code of the Russian Federation. Indeed, in accordance with paragraph 11 of Part 1 of Article 12 of the Federal Law "On Police", the police are charged with the duty to prevent administrative offenses and carry out proceedings on cases of administrative offenses attributed by the legislation on administrative offenses to the jurisdiction of the police ^[9]. After making a ruling on conducting a forensic medical examination, which is part of the proceedings in the case, the person (in our case, the victim) is obliged to fulfill this definition, since the provisions of Part 3 and Part 4 of the Law "On Police" oblige him to do so. A police officer has a duty to carry out the proceedings, and the victim, refusing to undergo a forensic medical examination, actually prevents the police officer from performing his duties. However, it seems that in this case responsibility should come under Article 17.7. "Failure to comply with the legal requirements of the prosecutor, investigator, inquirer or official conducting proceedings on an administrative offense." The legal requirements of an official conducting proceedings on an administrative offense are conditioned by his procedural powers established by Articles 28.3, 23.3 of the Administrative Code of the Russian Federation.

 And this is only some of the problems that police officers face in their activities when carrying out an inspection on the facts of causing beatings. It is necessary to further improve the norms of administrative legislation and introduce amendments and additions to the Administrative Code of the Russian Federation.

The appointment of an expert examination in the case in order to establish the degree of harm caused is appointed and carried out, as a rule, as part of an inspection in the course of criminal procedural activities. Administrative legislation also does not prevent it from being carried out in the framework of an administrative offense case^[10].In most cases, forensic examination after beatings is carried out as soon as possible so that the traces on the human body do not have time to disappear.

Despite the rule fixed in the Administrative Code of the Russian Federation, according to which no evidence has a pre-established force, it must be stated that in cases of administrative offenses under Article 6.1.1 of the Administrative Code of the Russian Federation, the expert's opinion is essential evidence, without which a comprehensive objective examination of the case is impossible.

The conducted research allows us to draw some conclusions:

1. Not all the complex of measures available to law enforcement officers to prove the guilt of a person brought to administrative responsibility under Article 6.1.1 of the Administrative Code of the Russian Federation, as well as other circumstances relevant to the correct resolution of the case, is applied by police officers. There are frequent cases of refusal to use an expert opinion, there is no protocol for examining the crime scene (offense), explanations of witnesses.

2. The most common procedural shortcomings are the incompleteness of the submitted case materials, which is expressed in the absence of:1) data on the summoning of victims, on the clarification of rights and obligations, responsibility for knowingly false testimony; 2) evidence confirming the objective side of the administrative offense; 3) indications of what actions constituted the objective side of the administrative offense, and what consequences for the victim entailed the actions of the person brought to administrative responsibility; 4) incompleteness of the presented evidence.

3. Regional practice is promising, according to which injured persons who evade the passage of a forensic medical examination necessary for a full and comprehensive examination of the case are brought to administrative responsibility. We believe that such actions should be qualified under Article 17.7 of the Administrative Code of the Russian Federation.

4. The practice of bringing persons to administrative responsibility under Article 6.1.1 of the Administrative Code of the Russian Federation, carried out by switching from criminal procedural activity to administrative and jurisdictional, seems justified, since this strengthens registration discipline and allows applying a wider range of measures and thereby ensuring the sufficiency of the evidence base (for example, to draw up a crime inspection protocol). However, considering the features of the procedural design, we come to the conclusion that the initially chosen administrative form is no less acceptable than the criminal procedural one, in the case of an employee's internal conviction during the initial assessment of the degree of violation of bodily integrity as insignificant.

At the same time, unfortunately, not all the complex of measures available to law enforcement officers to prove the guilt of a person brought to administrative responsibility under Article 6.1.1 of the Administrative Code of the Russian Federation, as well as other circumstances relevant to the correct resolution of the case, is applied by police officers. As a result, procedural shortcomings arise, which force the court to make a decision on the need to return the protocol on an administrative offense with the materials of the administrative case to the internal affairs bodies for revision.