Control (supervision) of road safety in the paradigm of the ongoing administrative reform

Bylinin Igor' Aleksandrovich Senior Researcher of the Department of Organisational Activity at Oryol Law Institute under the Ministry of Internal Affairs of Russia 302028, Russia, Orlovskaya oblast', g. Orel, ul. Ignatova, 2, kab. a-416 bylinin.igor@yandex.ru Other publications by this author

To date, in the field of road safety, as in the past decades, there is a lack of a unified approach in the use of terminology. The problems that have arisen in terms of the correlation of control and supervision are of great practical importance for public authorities.

In considering the basics of the studied terminology in the theory of law, as well as the current legislative acts, there are practically no clear aspects of the differentiation of control and supervisory activities, therefore, this issue remains open in national legislation.

When studying the essence and content of federal control (supervision), it is necessary, first of all, to determine the terminological apparatus that should be used to characterize the control and supervisory activities of both the institute of public administration as a whole and its manifestations in the field of road safety.

 Thus, the theoretical uncertainty in the relationship between the conceptual apparatus of "control" and "supervision" may be the same, explained by some "external" similarities of such definitions described in the legal literature as various methods used to ensure legality in various spheres of public relations.

           The philological interpretation of the terms under consideration suggests that "control" is meant here as accounting, checking accounts, reporting"; "supervision" – as supervision, supervision activities. In addition, it is necessary to specify, "control" – supervision, supervision of something for the purpose of verification; supervision" - monitoring, supervision activities associated with responsibility for its conduct. "Control" – checking the activity of someone, something, surveillance for the purpose of verification; "supervision" - surveillance, for the purpose of supervision, verification.

          The analyzed concepts are identical in fact, and the terms "observation" and "verification" are assumed to be the connecting elements for them.

However, it should be said that in practice, control and supervision are independent ways of ensuring the rule of law, which should accordingly have specific characteristics.

It is impossible to draw a conclusion about the identity of concepts based on the analysis of regulatory legal acts regulating various aspects of control and supervision in various areas of public relations.

The Code of Administrative Offences of the Russian Federation No. 195-FZ of December 30, 2001 (hereinafter referred to as the Administrative Code of the Russian Federation) uses the concepts in question in some cases as equivalent, when the legislator applies the "ubiquitous" formulations "state control (supervision)" or "state supervision (control)", and in another – as independent: for example, "supervision" in Parts 5, 8, 12 of Article 19.5 of the Administrative Code of the Russian Federation; "control" in part 2 of Article 19.5 of the Administrative Code of the Russian Federation.

It should be said that such an approach to the use of the concepts of "control" and "supervision" can be observed in almost every regulatory document regulating the implementation of such activities in various spheres of public relations.

So, it is important to point out that Federal Law No. 3-FZ of February 07, 2011 "On the Police" (hereinafter – Federal Law No. 3-FZ), the concepts used, in contrast to the Law of the Russian Federation of April 18, 1991 No. 1026-1 "On the Police" (hereinafter – the Federal Law "On the Police"), uses as equivalent (paragraph 19 of part 1 of Article 12 of Federal Law No. 3 and Part 10 of Article 10 of the Federal Law "On Militia").

To date, there is no unified approach to a clear understanding and interpretation of the concepts of "control" and "supervision" in the applicable regulatory legal acts.

Analyzing the works of administrative scientists at the present stage of the problem research, it should be noted that S.N. Antonov, studying federal state supervision, considered the conceptual apparatus of "control" and "supervision" as terms with different distinctive features ^[1].

 The conducted systematic and comprehensive analysis of the results of the study of reference and special literature, regulatory legal sources, as well as the conclusions of S.N. Antonov within the framework of the raised problem of legal interpretation of the terms under consideration, allows us to identify a group of features that emphasize the specifics of supervision and control as completely independent ways of ensuring legality.

So, in fixing the validity of judgments, it is necessary to highlight the main points:

 – the powers of the control bodies are much broader and more diverse than those of the supervisory authorities;

– the control bodies evaluate the activities of the controlled objects, both from the point of view of legality and expediency;

 – the object of control is specific objects, but supervision can extend to both a certain (personalized) and an indefinite range of objects;

– the methods of control and supervision vary: supervision is characterized by systematic observation, response to statements and complaints, the tools of state control methods are much broader;

– supervision is carried out in relation to third parties who are not subordinate to the authorities;

– the object of supervision is special rules (fire, sanitary, veterinary, traffic rules, etc.), while the object of control has a wider and more diverse range;

 – supervision cannot interfere in direct relations with the economic activities of the inspected objects, and such interference takes place during control;

– based on the results of supervision, administrative penalties may be applied (administrative fine, deprivation of a special right, suspension of work), disciplinary and sometimes criminal liability may result from control activities.

Thus, before proceeding to the consideration of control and supervisory activities implemented in the context of the ongoing reform, it should be noted that despite the external similarity of "control" and "supervision", the latter has specifics and occupies a special place among the ways to ensure legality in public administration.

However, at present, in the context of the ongoing reform of control and supervision activities, the legislator in the field of road safety uses the concepts of control and supervision as identical.

One of the main activities defined by the legislator is ensuring road safety, as stipulated in Part 1 of Article 2 of Federal Law No. 3-FZ "On Police". This area of police activity is directly related to the implementation of the provisions of Article 30 of Federal Law No. 196-FZ, which provides for the authority to exercise federal state control (supervision) in the field of road safety.

The right to exercise federal state control (supervision) in the field of road safety is currently vested with the Ministry of Internal Affairs of Russia and its territorial divisions, which is legislatively fixed in paragraph 1 of the Decree of the Government of the Russian Federation dated June 30, 2021 No. 1101 "On approval of the Regulations on Federal State Control (supervision) in the field of road safety". The State Traffic Inspectorate carries out state control and supervision over compliance with regulatory legal acts in the field of road safety in accordance with the obligation set forth in paragraph 11, paragraph a, of Decree of the President of the Russian Federation No. 711 of June 15, 1998.

The implementation of control (supervisory) powers by the State Traffic Inspectorate, as a rule, affects the rights of citizens and organizations carrying out their activities. Organizations are legal entities and individual entrepreneurs, which requires consideration of this type of activity from the side of its compliance with the provisions of federal legislation guaranteeing the protection of rights and legitimate interests.

Firstly, it is necessary to consider the compliance of the provisions on this type of control (supervision) and the provisions of Federal Law No. 248-FZ of July 31, 2020 "On State Control (Supervision) and Municipal Control" (hereinafter – Federal Law No. 248-FZ), which establishes, in particular, the types and timing of verification events. The activities carried out by the supervisory authorities, in accordance with the law, are divided into two large groups: planned and unplanned (Articles 61, 66 of Federal Law 248-FZ). The implementation of this type of verification measures by the State Traffic Inspectorate units is carried out in compliance with the requirements set out in the said law.

The validity of measures for supervision (control) by traffic police units in the field of road safety, in addition to the provisions of Federal Law No. 196-FZ, is also determined by paragraph 3 of Article 2 of Federal Law No. 248-FZ, which establishes the possibility of establishing additional features of the relevant types of verification measures.

The specifics were clarified in the adopted decree of the Government of the Russian Federation No. 1101 of June 30, 2021, however, departmental regulatory documents establishing the possibility of the State Traffic Inspectorate implementing administrative procedures related to the control (supervision) of traffic, covering the procedures for organizing planned and unscheduled verification measures have not yet been adopted.

In terms of the specifics of the administrative procedure for monitoring (supervision) of traffic, it is necessary to highlight the continuity of its implementation. In the process of control (supervision), employees of the State Traffic Inspectorate need to carry out a number of actions related to the identification, suppression and prevention of violations of mandatory safety requirements during construction, reconstruction, repair and operation of highways or operation of vehicles.

The obtained results of control (supervision) upon detection of violations of mandatory safety requirements must be recorded procedurally, but currently there is no such document. Previously, the act on identified deficiencies in the operational condition of the highway (street), railway crossing was applied (paragraph 81 of the order of the Ministry of Internal Affairs of Russia dated 30.03.2015 No. 380, which expired on 12/25/2021). The current situation does not allow us to develop an unambiguous solution for fixing violations of the requirements of legislation in terms of control (supervision) over the operational condition of the highway and road structures. Government Resolution No. 1101 does not establish the procedure for fixing violations of legal requirements, but reveals the specifics of the types of preventive measures. Detection of violations of the requirements of the legislation is one of the grounds for conducting a verification event provided for by Federal Law No. 248.

   According to modern researchers in the field of state control (supervision) D.S. Fesko, there is no doubt that the level of legal guarantees for controlled persons is largely determined by the quality of the control and supervisory legislation itself. The more perfect it is, the more protected both individuals and legal entities feel in their relations with control (supervisory) bodies ^[2].

            The procedure for conducting a verification event and fixing the detected violations is fixed in Federal Law No. 248, which makes the procedure the most transparent, which cannot be said about the daily work in the implementation of federal state control (supervision). Employees of the State Traffic Inspectorate departments often record the detected violations of the law regarding the maintenance of highways with a report (departmental document) addressed to the head of the territorial division of the internal affairs body of the Ministry of Internal Affairs of Russia, which cannot be a procedural document, thereby violating the procedure for fixing, limiting the access of persons carrying out activities to information about the identified shortcomings.

          Changes in control and supervisory activities have been focused on the prevention, detection and suppression of violations of mandatory requirements, through the prism of the prevention of violations of mandatory requirements, as well as the adoption of measures to curb identified violations of mandatory requirements and eliminate their consequences.

It should be noted that by the decision of the Presidium of the Council under the President of the Russian Federation for Strategic Development and Priority Projects of October 19, 2016 ^[3] the Ministry of Internal Affairs of Russia was included in the federal executive authorities participating in the priority program "Reform of Control Supervision Activities" (hereinafter - the CND).

By order of the Minister of Internal Affairs of the Russian Federation ^[4], the passport of the priority project "Improving the function of federal state supervision in the field of road safety of the Ministry of Internal Affairs of Russia within the framework of the implementation of the priority program "Reform of control and supervisory activities" was approved.

The goals of the priority project include reducing the number of people killed and injured in road accidents by increasing the efficiency and openness of the activities of the Ministry of Internal Affairs of Russia, optimizing the use of available forces and means in the implementation of federal state control and supervision in the field of road safety through increased attention to the activities of control (supervision) subjects distributed by risk categories depending on the results of their activities, systematization, reduction of the number and updating of mandatory requirements, implementation of comprehensive prevention of violations and automation of control and supervisory activities.

As part of the implementation of the activities of the project passport:

- adopted resolutions of the Government of the Russian Federation ^[5], ensuring the use of a risk-based approach in the implementation of federal state control (supervision) in the field of road safety; approved forms of checklists (lists of control issues) used in the implementation of federal control (supervision) (Order of the Ministry of Internal Affairs of Russia dated January 11, 2022 No. 39);

- approved the Procedure for organizing a systematic evaluation of the effectiveness and revision of mandatory requirements, the assessment of compliance with which is the subject of federal state supervision of the Ministry of Internal Affairs of Russia in the field of road safety (Order of the Ministry of Internal Affairs of Russia dated August 21, 2018 No. 539).

At the heart of the research, the authors Kunin V.A., Uporova I.V. adhere to the position that the use of a risk-based approach by the supervisory authority over the activities of organizations should be focused on the most significant violations of legislation located in areas with a high level of violations ^[6].

            At the present stage of reforming control (supervisory) activities, the use of a risk-based approach will reduce the number of verification activities. However, it should be noted that in this case there is a need to increase the prevention of violations of compliance with mandatory requirements.

It should be noted that Federal Law No. 248-FZ of July 31, 2020, in accordance with the Action Plan ("roadmap") for the implementation of the "regulatory guillotine" mechanism ^[7], designed to reduce administrative pressure on business and is aimed at comprehensive legal regulation of the organization and implementation of state control (supervision) and municipal control and establishment of guarantees for the protection of the rights of citizens and organizations as controlled persons.

It is important to point out that the provisions of Federal Law No. 248-FZ, unlike the requirements of Federal Law No. 294-FZ, do not apply to road users.

Paragraph 19 of Article 12 of Federal Law No. 3-FZ imposes obligations on the police to exercise state control (supervision) over compliance with rules, standards, technical norms and other requirements of regulatory documents in the field of road safety.

In accordance with paragraph 21 of article 13 of the said Law, the police have the right to restrict or prohibit road repair, construction and other works carried out in violation of the requirements of regulatory legal acts in the field of road safety.

To date, according to the Decree of the President of the Russian Federation dated June 01, 2013 No. 527 "On Amendments to the Regulation on the State Road Safety Inspection of the Ministry of Internal Affairs of the Russian Federation, approved by the Decree of the President of the Russian Federation dated June 15, 1998 No. 711", state control and supervision over compliance with regulatory legal acts in the field of ensuring road safety, which establishes requirements for the construction and reconstruction of roads.

In principle, the process of reforming control and supervisory activities (hereinafter referred to as CND) in the Russian Federation is coming to an end. The main goal of the CND reform was to increase the level of security and eliminate excessive administrative burden on business entities. It is carried out through the abolition of all irrelevant regulations in the field of supervision and control, as well as the construction of a new, modern, effective system of state control (supervision) aimed at reducing socially significant risks ^[8].

To date, almost all legislative acts have been brought into line with the provisions of Federal Law No. 248-FZ, which entered into force on July 1, 2021, with the exception of certain departmental regulatory legal acts of the Ministry of Internal Affairs of Russia, for example, Order of the Ministry of Internal Affairs of Russia No. 727 dated 11/14/2016 regarding the provisions on inspections that have become invalid.

Thus, the new editions of articles for each type of control establish its name with an indication of attribution to federal state control (supervision), regional state control (supervision), municipal control.

The Law on State Control (Supervision) amended the main legislative act regulating public relations in the field of road safety – the Federal Law "On Road Safety". According to its provisions, the Ministry of Internal Affairs of Russia carries out federal state supervision in the field of road safety (hereinafter – state supervision).

In the new version of the Federal Law, the conceptual apparatus of the subject of control (supervision) has been significantly expanded, the subject of federal supervision is now considered not only compliance by legal entities and officials, individual entrepreneurs and road users with the requirements of the legislation of the Russian Federation on road safety, but also the constituent law of the Eurasian Economic Union, the European Agreement on the International Road Transport of Dangerous Goods of September 30, 1957 (ADR/ADR) mandatory requirements in the field of road safety.

The law provides an exhaustive list of facilities where, in addition to legal entities; individual entrepreneurs; road users, there is also a list of officials of road and motor transport enterprises who, like other objects of federal supervision, are responsible for compliance with safety requirements in the field of road traffic.

So, now it should be assumed that the failure of officials to fulfill their respective duties entails administrative responsibility. The Federal Law "On the Police" (paragraph 21 of part 1 of Article 13) provides for the right of the police to issue instructions to such persons on the elimination of detected violations based on the results of the audit.

 Thus, it can be said that the above-mentioned officials, along with legal entities, individual entrepreneurs and road users, are independent objects of federal control (supervision).

In terms of state control (supervision) over the implementation by executive authorities of the subjects of the Russian Federation and local self-government bodies of powers related to compliance with requirements in the field of road safety, it should be noted that it is carried out by the federal executive body authorized by the President of the Russian Federation in accordance with the provisions of Federal Law No. 184-FZ of October 6, 1999 "On the General principles of the Organization of Legislative (Representative) and Executive Bodies of State Power of the Subjects of the Russian Federation" and Federal Law No. 131-FZ of October 6, 2003 "On the general principles of the organization of local self-Government in the Russian Federation".

Today, in the context of the provisions of Federal Law No. 248, citizens engaged in activities related to the operation of a vehicle as "self-employed" who do not have the status of an individual entrepreneur have questions about the implementation of the mechanism of state control (supervision). Thus, the scope of application of the Federal Law in paragraph 3 of Article 2 applies to the conduct of planned control (supervisory) measures in respect of legal entities or individual entrepreneurs who have a license.

Thus, it should be said that at present, the authorities in terms of exercising the powers to exercise state control (supervision) in the field of road safety do not have the opportunity to conduct control (supervisory) measures in relation to the "self-employed", whose activities are related to the operation of vehicles that are not subject to licensing.

In order to eliminate the emerging problems in the field with the need for increased control (supervision) over the safety of life and health of road users, the following amendments should be proposed to the current legislation on state control (supervision) and supplement Article 2 of Federal Law No. 248-FZ with paragraph 4 and set out in the following wording:

          "This Federal Law applies to citizens carrying out their activities, in accordance with Federal Law No. 422-FZ of 27.11.2018 "On conducting an experiment to establish a special tax regime "Tax on professional income", in the following content:

1) carrying out planned control (supervisory) measures in relation to citizens carrying out their activities. Carrying out planned control (supervisory) measures against citizens may be canceled or replaced by periodic confirmation of citizens' compliance with the requirements, carried out in the form of a public service;

2) carrying out unscheduled control (supervisory) measures in respect of citizens carrying out activities in the manner and cases provided for by Chapters 12 and 13 of this Federal Law;

3) carrying out preventive measures against citizens carrying out activities.

It should be noted that now in the legislation on state control (supervision), a pre-trial complaint can only be filed electronically through the portal "Gosuslugi" or a similar regional portal, and moreover, since 2023, this procedure has been established for all types and levels of control.

To date, some legal entities, individual entrepreneurs and citizens carry out their activities (for example, the operation of vehicles, maintenance of highways in operational condition) in hard-to-reach areas where digital technologies are often not available. Therefore, they will be limited in the possibilities of filing a complaint against the actions of officials.

In this case, we believe that the legislation on state control (supervision) should consolidate the right to file a complaint both electronically and in writing. The controlled person should have the right to choose to file a complaint, which will make the mechanism of pre-trial appeal available to all persons engaged in activities.

The introduction of clarifications and changes in the legal field will make the mechanism of state control (supervision) of persons carrying out activities in accordance with the requirements more transparent, without violating the rights and legitimate interests.