The Mechanism of Subordinate Individual Legal Regulation of Crime Prevention Activities

Zaitseva Olesya Viktorovna ORCID: 0000-0003-2675-2801 PhD in Law Associate Professor of the Department of Criminal and Procedural Law, Saratov State Law Academy 410056, Russia, Saratov region, Saratov, Volskaya str., 1 zaitseva.o@bk.ru

Dekhtyar' Ivan Nikolaevich PhD in Law Associate Professor of the Department of Administrative and Municipal Law, Saratov State Law Academy 410056, Russia, Saratov region, Saratov, Volskaya str., 1 ivandehtyar@mail.ru

Introduction. Since one of the properties of the legal system is its dynamism and effectiveness, it should be analyzed in dynamics ^[1]. The dynamism of law finds expression in the scientific category "legal regulation" ^{[2, p. 287]}. There are different points of view in science regarding the content of this process. It can be considered both in a broad and in a narrow sense.

Thus, S. S. Alekseev, understanding legal regulation in a broad (instrumental) sense, defines it as a legal impact on public relations realized through law ^{[3, p. 5]}. V. K. Babaev adheres to a similar point of view ^{[4, p. 261]}. According to V. L. Kulapov, legal regulation is based on the use of a certain set of legal means, the process of power-volitional orderly influence on public relations in accordance with the laws of their development and the needs of everyday life ^{[5, p. 264]}.

Other authors consider legal regulation in a narrow (activity) sense. According to V. M. Gorshenev, the purpose of the mechanism of legal regulation is to translate the normativity of law into the ordering of public relations ^{[6, p. 54]}. At the same time, legal regulation is characterized as actions actually performed by legal entities. T. N. Radko also focuses on the continuity of the process of applying a set of legal means and legal tools to achieve the set goals in the study of this legal phenomenon ^{[7, p. 10]}.

A.V. Malko understands legal regulation as a system of legal means. Such means are organized in the most consistent way in order to overcome obstacles to satisfying the interests of participants in public relations ^{[8, p. 87]}. According to A. A. Abramova, the mechanism of legal regulation is a normatively organized, consistently implemented complex process, which aims at the effective implementation of legal norms in life ^{[9, p. 72]}.

It should be noted that the consideration of legal regulation in a narrow sense makes it possible to identify it with law enforcement, which is more consistent with the goal of identifying the foundations of scientific understanding of the mechanism of subordinated individual legal regulation of criminological security activities.

Law enforcement should not be considered as a factor in the implementation of legal norms, their implementation. This is their implementation in cases established by law and in the form fixed by it, which is carried out within the competence of the subject to resolve legal cases and adopt legal acts ^{[10, p. 499]}.

It should be noted that the individual application of the norms of law to specific recipients of preventive action is characterized by the presence of subordination links. Such connections are manifested in the imperative of methods of influence in order to ensure public interest in the prevention of offenses. Individual legal regulation is carried out within the framework of executive and administrative or law enforcement enforcement activities by an authorized power entity with the help of a law enforcement act ^{[5, p. 267]}.

Elements of the mechanism of subordinated individual legal regulation of crime prevention activities. Legal regulation is carried out within the framework of a certain mechanism, which is characterized as a system of legal means organized in the most consistent way in order to organize public relations ^{[11, p. 333]}. It allows you to bring the management process to its logical result. Thus, it is a set of elements interconnected into a single system.

According to M. F. Kazantsev, the main elements of the mechanism of legal regulation are its means, legal facts, legal relations ^[12]. There are other points of view on the totality of such elements. Thus, S. S. Alekseev identifies among them mandatory: norms of law, legal relations, acts of realization of rights, as well as optional elements: individual acts, normative legal acts, legal culture, legal awareness ^{[3, pp. 34-35]}. A.V. Malko points to such elements as a legal norm, a legal fact, a law enforcement act, legal relationship, acts of realization of rights and obligations ^{[13, pp. 472-473]}. N. V. Makareiko in the structure of the mechanism of legal regulation includes the norms of administrative law, acts of official interpretation, law enforcement acts, administrative legal relations ^{[14, p. 31]}. Some scientists distinguish legality as independent elements of the phenomenon under consideration ^{[15, p. 125]}, legal consciousness and legal culture, as well as legal ideology ^{[16, p. 352; 17, p. 33]}.

Thus, despite the difference of points of view, most researchers single out the law enforcement act as a mandatory element of the mechanism of legal regulation. Indeed, law enforcement acts, performing the function of individual legal regulation of public relations, concretize the content of the norms of law.

In our opinion, the view existing in the theory of law on the structure of the mechanism of individual legal regulation, in relation to the activity of individual prevention of offenses, needs more detailed elaboration. In particular, it is necessary to pay attention to the fact that legal regulation is always aimed at a specific object defined by the competence of the decision-making entity. In addition, it, being individual and law enforcement, is carried out through individual legal means. In turn, legal regulation cannot be groundless, since legal facts create the basis for translating an abstract social possibility into reality. In addition, individual legal regulation is implemented in a certain way, as well as using law enforcement technologies that involve means of legal technology to achieve the tasks of the law enforcement officer.

Thus, we believe that the following can be distinguished as the main elements of the mechanism of subordinated individual legal regulation of crime prevention activities::

- the object of individual legal regulation;

- law enforcement entity;

- legal fact;

- the method of individual legal regulation;

- law enforcement technologies (technologies of regulatory legal realization);

- individual legal means (lawful unilateral actions, preventive law enforcement acts).

Specific public relations act as an object of individual legal regulation. In relation to the field of crime prevention, these are public relations related to the identification and minimization of the causes and conditions of illegal and antisocial behavior. They are processes that are a factor in the commission of offenses and criminal victimization of citizens ^{[18, p. 151]}. Through the application of special criminological measures, they must be eliminated and neutralized, thereby preventing illegal acts and antisocial behavior.

The subjects of the application of the norms of preventive law are various bodies and officials with appropriate powers in the field under consideration. According to our comprehensive study of 150 acts of application of law on the prevention of offenses over the past five years (from 2017 to 2022), these include: the Ministry of Internal Affairs – 38.7%; the court – 33.3%; KDN – 22%; the Prosecutor's Office of the Russian Federation - 4.7%; the administration of the municipality – 1.3%.

An important element of the mechanism is a legal fact, which serves as the basis for the emergence, modification and termination of preventive legal relations. The basis of legal regulation of crime prevention activities are legal acts (legal acts and legally significant acts), legal events and facts-states ^[19].

By name, the legal acts that are issued by the subjects of prevention differ in a very wide variety. These are the court's decision on an administrative case, the decision of the KDN and the PO, the report of the inspector of the direction for the implementation of administrative supervision, the official warning of the district police commissioner and others. The form of such documents is usually strictly formalized.

Thus, according to our research, the top five grounds for the application (termination) of crime prevention measures include an act of a judicial authority – 53.3%; a conclusion based on the results of an audit of complaints, statements or other communications – 9.3%; information from the public order protection unit – 6.7%; a petition from the acting director of the State Institution of the SO "... TSSON" – 8%; the decision of the interdepartmental council on the presence of signs of finding a minor and his family in a socially dangerous situation – 7.3%.

Among the methods of individual legal regulation, the main ones are individual obligation and individual prohibition. Thus, in the studied law enforcement acts, an individual ban was applied in 63% of cases; an individual obligation – in 37%. The individual obligation, as a rule, consisted in imposing on the prevented persons the obligation to appear for registration in the Department of Internal Affairs according to the established schedule (43.3% of the analyzed acts). Also, law enforcement officers often impose administrative restrictions on preventable persons in the form of a ban: a) visiting places of mass and other events (8.7% of the analyzed acts); b) staying in places of entertainment (9.3%); c) traveling outside the subject of the Russian Federation without the permission of a specialized body (25.3%); d) staying outside a residential or other premises that is a place of residence or staying at night (30.7%).

Law enforcement technologies play an important regulatory and organizing role in the field of law enforcement. Among these, judicial or administrative discretion has a significant impact on the process of law enforcement in the field of crime prevention, which is used if there are no clear criteria for the application of preventive measures in the legislation. Thus, in case No. 8a-12138/2021, considered by the Judicial Board for Administrative Cases of the Second Cassation Court of General Jurisdiction, the subject of the dispute was the recognition of illegal and cancellation of the conclusion on the placement of a minor on preventive registration, cancellation of the record on preventive registration. According to the incident card, the OMVD in the Butyrsky district of Moscow received a telephone message from FIO2 that her two-year-old daughter was trashing the apartment. Based on this, the minor was placed on preventive registration. However, the court of cassation instance did not agree with the conclusions of the court of first instance on the existence of grounds for the use of preventive measures and indicated that the need for preventive registration should be justified by the real manifestation of her illegal, antisocial behavior or expressed intention to commit an antisocial act. At the same time, the commission of a single antisocial offense does not indicate the existence of grounds for the use of preventive measures.

Administrative discretion is used when establishing signs of ill-treatment of a minor in the family. At the same time, in this case, gaps in legislation cannot always be overcome by the law enforcement officer when resolving a specific situation. Thus, in accordance with part 2 of Article 13 of Federal Law No. 120-FZ of June 24, 1999 "On the basics of the system of prevention of neglect and juvenile delinquency", the legislator determines the possibility of placing minors in specialized institutions by the fact of living in a family that is in a socially dangerous situation. In case No. 2a-789/2021, considered by the Ust-Labinsky District Court of the Krasnodar Territory, the court refused to satisfy the administrative claim of the prosecutor of the Ust-Labinsky district to the State State Institution of Social Services of the Krasnodar Territory "Ust-Labinsky SRCN" on the recognition of the illegal action expressed in the return of the children to the mother after the issuance of the act of their selection. It was established that the district prosecutor's office received information from which it follows that the center received minors on the act of the operational duty Department of the Ministry of Internal Affairs of Russia in the Ust-Labinsk district, on whose body multiple scars were found. Due to the absence of the mother of minors at their place of residence, as well as due to the presence of a threat to the health of children, it was decided to place the children in the State Institution of the Ust-Labinsky SRCN, about which the relevant acts were drawn up. However, the court stated that since the mother of the children was not deprived of or restricted in parental rights in accordance with the procedure established by law, she had the right to take the children from the State Institution of the Ust-Labinsky SRCN.

In this regard, it is required at the legislative level to consolidate the possibility of protecting the interests of a minor if he is in an environment that poses a danger to his life or health. In addition, the solution of this issue will ensure the protection of the life and health of minors in cases when they are in such an environment, but for some reason it is not possible to transfer them to parents or legal representatives.

Management interaction is used among law enforcement technologies. Thus, in case of a threat to the life and health of a child, the employees of the guardianship and guardianship authority carry out the immediate removal of the child. However, as follows from the interview, this action in practice is carried out after the head of the municipality issues an act of selection. Evidence of the existence of grounds for the use of preventive measures is provided by employees of the guardianship and guardianship authorities. The powers of the guardianship authorities for the prevention of ill-treatment of minors are also exercised in relation to families that are recognized as being in a socially dangerous situation, and the Commission on Juvenile Affairs recognizes families as such by issuing a resolution. Then the Commission on Juvenile Affairs approves an interdepartmental rehabilitation program for this family, which fixes the appropriate measures that the guardianship and guardianship authority is obliged to carry out in relation to this family.

In addition, within the framework of the mechanism of subordinated individual legal regulation of crime prevention activities, the technology of the case method is used, when the law enforcement officer uses "ordinary" practices and the experience of colleagues to solve the issue. However, there is a large local variation of those informal rules that law enforcement officers are guided by. According to the study, in order to eliminate legislative gaps and ambiguities, 56% of respondents use "adapted" customary practices in their law enforcement activities, arising not from the provisions of legislation, but from everyday experience acquired over the years in the process of exercising their duties (law enforcement customs). Thus, the imperative rule of precedent is used: to decide as it was decided earlier. Thus, during the interview, an employee of the guardianship and guardianship authority pointed out that usually, due to gaps in legislation, when analyzing the evaluative concepts of "abuse of a minor", "threat to the life and health of a child", the existence of grounds for the use of a preventive measure is determined by identifying an immediate threat to the life of a child or his health, which is direct and explicit, and also there is no doubt about the possibility of negative consequences. Such consequences may include death, bodily injury or other harm to the health of a minor citizen.

The key element of the mechanism of subordinated individual legal regulation of activities for the prevention of offenses are individual legal means (lawful unilateral actions, preventive law enforcement acts), which specify the content of the norms of law.

By name, law enforcement acts are diverse: decision, resolution, report, official warning (warning), warning, act, submission, conclusion, order. According to the analysis of practical material, the top ten percentages include: a court decision in an administrative case on the establishment or extension of administrative supervision (18%); a court decision in an administrative case on the addition of administrative restrictions (14.7%); a resolution of the KDN and the PO on the recognition of a family in a socially dangerous situation (10%); report (9.3%); resolution of the KDN and PO on the recognition of a family that has emerged from a socially dangerous situation (8.7%); official warning about the inadmissibility of continuing antisocial behavior (6.7%); act of visiting a supervised person at his place of residence or stay (4.7%); presentation on the elimination of violations of legislation on the prevention of neglect and juvenile delinquency (4.7%); schedule of arrival of the supervised person for registration (4%); conclusion on the institution of administrative supervision (4%).

However, individual legal regulation of preventive activities is not limited to the use of individual acts-documents that contain prescriptions of an individual nature (resolutions, decisions and other acts). A large proportion are acts-actions, for example, conducting a preventive conversation, observation.

The use of mediation technologies has a significant prospect ^[20], when reconciliation of the offender and the victim takes place with the participation of a third party – a mediator. However, the current domestic legislation does not fix a mediation agreement as a form of preventive influence, which is a significant drawback of the regulatory regulation of crime prevention activities. The use of mediation agreements would reduce the risk of further illegal behavior, including among minors, and would act as a tool to prevent their criminal behavior. Reconciliation of the parties is especially relevant for the termination of proceedings in a case involving a minor, which is due to the importance of providing him with preventive rather than punitive effects. In this regard, it is advisable to consolidate in Federal Laws No. 182-FZ of June 23, 2016 "On the basics of the system of prevention of offenses in the Russian Federation" and No. 120-FZ of June 24, 1999 "On the basics of the system of prevention of neglect and juvenile delinquency", as well as in the Code of the Russian Federation on Administrative Offenses of 30 December 2001, No. 195-FZ of such a form of preventive influence as a mediation agreement, as well as the establishment of the fact of the conclusion of this agreement as a basis for termination of proceedings. The possible form and terms of the reconciliation agreement, the procedure for challenging, executing and approving it should be listed and specified by law.

Conclusion. Thus, individual legal regulation of crime prevention activities is implemented through a system of legal means organized in order to streamline public relations in the field of crime prevention. As such, the object of individual legal regulation should be considered – public relations related to the prevention of illegal acts; a law enforcement entity that has powers in the field of crime prevention; legal fact – legal acts, legal events and facts-states that serve as the basis for the emergence, modification and termination of preventive legal relations; the method of individual legal regulation – individual binding and individual prohibition; law enforcement technologies; individual legal means – lawful unilateral actions, preventive law enforcement acts.

In order to increase the effectiveness of crime prevention activities, it is necessary to make legislative changes regarding the legal consolidation in federal legislation of a new form of preventive influence – a mediation agreement; in part of the supplement to Part 2 of Article 13 of Federal Law No. 120-FZ of June 24, 1999 "On the basics of the system of prevention of neglect and juvenile delinquency" by paragraph 7, containing an indication of the possibility of placing minors who are in an environment that poses a danger to their life or health, including when receiving information about the ill-treatment of a minor in the family, in specialized institutions.