Measures of Administrative and Procedural Coercion

Tregubov Igor' Sergeevich Postgraduate, Department of Administrative Law, Moscow University of the Interior of the Russian Federation 117437, Russia, Moscow region, Moscow, ul. Akademika Volgina, 12 kiber1817@mail.ru Other publications by this author

 The question of administrative coercion measures, in general, and administrative procedural coercion measures in particular, is not new, both for the practice of implementing this coercion and legal doctrine. However, problems of a material and procedural nature, which appear quite regularly, force us to pay attention to the practice of applying certain administrative and legal measures. In addition, in the legal doctrine, it is objectively necessary to regularly review the established points of view regarding a particular phenomenon. This makes it possible to develop legal theory, and also contributes to the formulation of proposals to improve the quality of law enforcement activities.

  The problem of administrative coercion has been the subject of scientific attention for a long time. At one time, the research of the institute of administrative coercion even had a pro-Western character, where this coercion was used very widely. As A.I. Elistratov noted at the time, "... administrative coercion in a variety of forms continues to be widely used in the constitutional states of the European continent" ^[1].

It should be emphasized that administrative coercion in European countries has always been applied both pre-trial and on the basis of a court decision. Regarding the existing concepts of administrative coercion, A.I. Elistratov, at the time, also stressed that "... French law, as well as German law, opens up a wide scope for administrative coercion. But it (French law), at least, more or less maintains the principle that punishments can only be imposed by the court. As a general rule, violation of administrative regulations is punishable by a verdict of a justice of the peace." As can already be seen, this procedure for the application of administrative penalties has been implemented in the domestic law and order, although it took a very long time.

Usually, the disclosure of the essence of administrative coercion begins with an analysis of state coercion as a whole, and at the same time it is noted that administrative coercion is part of it, having all its features, however, it also has its own characteristics. Thus, D.N. Bakhrah stated that "... administrative and legal coercion is one of the types of state coercion, and therefore all the signs of the latter are inherent in it. During the implementation of administrative coercion, the protection of law and order is carried out. At the same time, this compulsion has its own distinctive features" ^[2].

Speaking about state coercion, it should be noted that this coercion is sometimes considered as part of social coercion or as a method of public administration. So, N.A. Satarova writes that "... coercion exists in every human community and is a necessary element of social organization" ^[3]. It is also written that "... coercion is closely connected with state power" ^[4].  As L.A. Mickiewicz noted, "... social coercion is the impact on persons who voluntarily do not comply with the instructions of the subject of management. This coercion consists in the forcible application of influence against controlled persons in order to force them to perform the prescribed action" ^[5].

Regarding coercion, S.N. Bratus also noted that "... coercion ensures the execution of an individual act of power, an individual command that does not rely on a normative provision, on a general rule when evading the voluntary execution of this command" ^[6]. Based on this, it can be concluded that coercion ensures the fulfillment of obligations established by law.

A.I. Dvoryak wrote about state coercion that "... state coercion, using existing properties, can have a serious impact on a person's consciousness, his mind and feelings" ^[7]. Of course, administrative coercion has a negative emotional impact on the person to whom it is directly applied.       Thus, the functionality of state coercion is to force, with the help of the law, obligated persons to comply with regulatory requirements, both general and individual.  State coercion, regardless of its type, form, and grounds of action, is aimed at ensuring law and order, as well as the protection and protection of citizens' rights. As follows from the Administrative Code "... the objectives of the legislation on administrative offenses are the protection of the individual, the protection of human and civil rights and freedoms" (art.1.2). In turn, "... administrative punishment cannot be aimed at humiliating human dignity or causing physical suffering to a person (Article 3.1). State coercion is an obligatory attribute of the State, which creates a legal basis for this coercion, approves the procedural form of application, and also determines the grounds for the implementation of the corresponding coercion. State coercion is very differentiated, it is based on sectoral legal regulation, as well as subject functionality and, as already noted, the procedural form of implementation.

 Without delving into the analysis of the theory of state coercion, we note that the institution of administrative coercion in the domestic legal doctrine has been studied very thoroughly. As A.I. Elistratov wrote at the time, "... the demands of the administration, not fulfilled by citizens voluntarily, are subject to enforcement. The possibility for the administration to resort to coercive measures on its own initiative, without a preliminary court order establishing the regularity of this requirement, is called administrative coercion" ^[8].

In the scientific literature there are many similar definitions of such a definition as "administrative coercion", let's consider some of them.  In the multi–volume publication "Soviet Administrative Law", it is stated that "... administrative coercion is the use by public administration bodies, courts (judges), measures established by law, consisting in forcing citizens and officials to perform legal duties in order to stop illegal actions, as well as bringing them to responsibility for administrative offenses or ensuring public safety" ^[9]. 

V.A. Melnikov writes that "... administrative coercion as a method of influence consists in causing any restrictions to the subject of law in the form of the application of measures provided for by the rule of law in connection with an offense, and the restriction of rights takes place due to state necessity. Administrative coercion consists in imposing an additional legal obligation or depriving an already existing right or direct physical influence" ^[10].

A.S. Ogienko notes that "... administrative and legal coercion is a form of state coercion, which consists in external mental or physical influence on the consciousness and behavior of persons in order to prevent their illegal behavior" ^[11].

The analysis of the above points of view makes it possible to conclude that administrative coercion entails legal restrictions, and therefore should be applied if there are appropriate grounds, and these grounds may have both a material and procedural nature. Administrative coercion has a law enforcement nature, or rather, a police nature. In this regard, it is no coincidence that this coercion is also considered in the police aspect.

As K.S. Belsky noted, "... direct administrative coercion can be called police coercion proper. Direct police coercion is the primary police reaction caused by one of the legal facts that are important from the point of view of protecting public order and ensuring public safety" ^[12].

A.V. Kurakin in his research also proposed to divide administrative coercion into two types, actually administrative coercion, the basis for the application of which are circumstances unrelated to the offense and police coercion, the purpose of which is to counteract the commission of an administrative offense ^[13].      

Despite the development of the legal doctrine and the formation of the system of administrative coercion, the allocation of administrative procedural measures in it did not happen immediately. D.N. Bakhrah made a significant contribution to the study of administrative coercion. His work is devoted to this issue: "Administrative coercion in the USSR, its types and main development trends" (M., 1972).

In the future, the designated author very productively popularized his concept of administrative coercion in numerous publications of both scientific and educational format, while having a significant impact on the development of the domestic legal doctrine of this type of state coercion. It should be noted that D.N. Bakhrah mainly focused on the substantive component of administrative coercion, this conclusion is based on the definitions that he gave to the corresponding type of state coercion. In particular, the designated author wrote that "... administrative and legal coercion is a special type of state coercion, consisting in the application by subjects of functional authority of coercive measures established by the norms of administrative law in connection with illegal actions" ^[14].

The emphasis on the substantive and legal aspect of this type of state coercion is dominant. This circumstance was probably due to the fact that the necessary procedural regulation of the application of measures of administrative responsibility and other measures of administrative coercion was not developed in a sufficiently long period of time. So, at one time, the decree of the Central Executive Committee, the SNK of the RSFSR of June 23, 1921 "On the procedure for imposing administrative penalties" referred only to administrative penalties, and there was no proper procedural procedure for their application. The development of legal doctrine has radically changed the situation with the procedural regulation of the use of administrative coercion. However, it took quite a long time. It should be noted that the procedural component takes place not only in the content of measures of procedural coercion, all measures of administrative and legal influence need procedural support.

In this sense, we must agree with E.N. Pastushenko, who noted that "... the study of substantive and procedural administrative coercion should be carried out in a complex, in a single institute of administrative coercion. Such a study of administrative coercion makes it possible to know this phenomenon in the unity of its material and legal content, as well as its procedural form" ^[15]. It should be noted that administrative and procedural measures are often used precisely in connection with the commission of an administrative offense.  As V.D. Sorokin wrote back in the seventies of the last century, "... the central place in the system of proceedings in cases of the use of coercive measures in the field of public administration is occupied by proceedings in cases of administrative offenses" ^[16].

However, despite this approach, in the middle of the twentieth century, the proceedings on administrative offenses were only developing, in addition, there were quite lively discussions about the system of administrative coercion measures, while in this system there was not always a place for administrative procedural measures. Thus, M.I. Eropkin, at one time, based on the subject functionality of administrative coercion measures, and thus divided them into: administrative penalties; administrative preventive measures, as well as administrative preventive measures ^[17]. The classification of M.I. Eropkin had a serious impact on the development of the doctrine of administrative coercion, this classification was formulated one of the first. It should be noted that, despite the fact that there are no measures of administrative and procedural coercion in this classification, nevertheless, it is clear from the context of M.I. Eropkin's works that he understood the functionality of this coercion in the implementation of administrative penalties. The functions of procedural coercion for the designated author were performed by administrative preventive measures.                    

MS Studenikina wrote that "... only administrative punishments and preventive measures can be recognized as measures of administrative coercion. Numerous administrative and preventive measures should not be included in the general classification of administrative coercion measures" ^[18]. As you can see, there was no place for administrative and procedural measures in the presented classification. 

E.N. Pastushenko stated the provision that administrative coercion performs a preventive function, the function of suppressing offenses, the function of procedural support, as well as the function of punishment ^[19]. The designated author presented a very mature classification of administrative coercion measures that meets the needs of the time and the development of legal doctrine. Procedural provision of administrative and legal impact is a kind of guarantee of the legality of this regulation, in this regard, the effect of administrative penalties is impossible without the use of procedural measures to ensure their application.               

Each of the designated authors proceeded from the possibilities of his time, as well as a subjective understanding of the essence of the designated problem. Each of the above positions was important from the point of view of the development of the doctrine of administrative coercion, as well as the development of legislation regulating the procedure for the application of appropriate administrative measures.      

Further, we note that the study of the problems of the administrative process in the protective aspect of its implementation went separately from the disclosure of the essence of administrative procedural coercion measures. It must be said that only over time in the content of proceedings on administrative offenses were identified and began to regulate in detail the measures of administrative and procedural impact, and this was due to the codification of legislation on administrative offenses, which occurred in the early eighties of the last century. Thus, measures of administrative and procedural coercion, on the one hand, began to have their own autonomous functions, and on the other hand, to make it possible to reasonably apply administrative penalties.

It must be said that the measures of procedural coercion are not punishments in themselves, but they, as already noted, make it possible to apply appropriate punishments reasonably. The procedural measures, of course, contain coercive potential, but it does not bear the legal consequences that the corresponding penalties have. As V.D. Ardashkin noted, "... procedural support measures are auxiliary "weapons" to overcome the possible and actual resistance of the participants in the process, and thus these means are aimed at ensuring the application of basic coercive measures (responsibility, protection, prevention)" ^[20].

A.I. Kaplunov also stressed that "... measures of administrative and procedural coercion are characterized by auxiliary security value from the point of view of achieving the final legal result of procedural activity and the ultimate law enforcement goal. Their use is conditioned by the need to implement other measures of administrative coercion, mainly administrative penalties" ^[21].

Regarding these measures, I.I. Veremeenko wrote at the time that "... administrative procedural measures are not used for the final solution of the issue of an offense, but pursue intermediate goals, are used as auxiliary means in solving the issue of an offense, and thus have a pronounced procedural, security nature" ^[22].

The designated author paid considerable attention to administrative and procedural measures, and therefore justified the position that it is impossible to implement administrative sanctions without the application of these measures. In this regard, it is no coincidence that in the classification of administrative coercion measures, for the designated author, it is the measures of administrative procedural coercion that are in the first place. Thus, I.I. Veremeenko in the construction of administrative coercion singled out "... administrative-procedural measures; administrative-legal sanctions; administrative-preventive measures" ^[23].  With minor changes, this system of administrative enforcement measures has been supported, both in theory and in practice.     

It should be noted that the development of the legal doctrine regarding measures of administrative and procedural coercion was influenced by the science of criminal procedure. It is in the theory of criminal proceedings that serious attention has always been paid to the procedural regulation of coercive measures. As V.A. Mikhailov noted, "... the main purpose of measures of criminal procedural coercion is to provide optimal conditions for proving the truth in criminal cases; protecting every innocent person from erroneous criminal prosecution. Also, criminal procedural coercion is designed to contribute to the solution of preventive tasks in the investigation and judicial review of criminal cases" ^[24]. 

Measures of administrative coercion are studied in a variety of aspects, a special place in this system, as already noted, belongs to measures of administrative and procedural coercion. This is due to the substantive functionality of these measures, as well as their restrictive and coercive potential. Note that in doctrinal terms, the category of "administrative and procedural coercion" itself is not so well-established definition. One of the first who theoretically substantiated the legal essence of these administrative and legal measures was V.R. Kisin, this was done in the work: "Measures of administrative and procedural coercion and their application (based on the materials of the activities of internal affairs bodies)" (M., 1983). Thus, V.R. Kisin divided the measures of administrative-procedural coercion into three types: "... measures of administrative-procedural restraint; measures of administrative-procedural support; procedural measures of execution of administrative penalties" ^[25].

       Accordingly, these measures, in the opinion of the designated author, are subordinated to a common goal, however, they have different grounds for their application. As the designated author writes, "... measures of administrative and procedural restraint consist in compulsory restriction of freedom of movement and other actions of a person (administrative detention, drive); measures of administrative and procedural support are aimed at establishing the fact of an administrative offense and the identity of the offender, detection and fixation of evidence. In turn, procedural measures for the execution of administrative punishments can be considered as a compulsory restriction of a personal and property nature, in order to timely execute the imposed administrative punishment."

        As you can see, the designated author does not reduce the measures of administrative and procedural coercion only to measures to ensure the proceedings in cases of administrative offenses.  Today, the Administrative Code uses such a category as "measures to ensure the production of cases of administrative offenses." As follows from the law, these measures are applied "... for the purpose of suppressing an administrative offense, establishing the identity of the violator, drawing up a protocol on an administrative offense. The functions of these measures also consist in ensuring timely and correct consideration of the case of an administrative offense and the execution of the decision adopted in the case" (Article 27.1). It should be noted that functionally, the measures to ensure the proceedings in cases of administrative offenses are used to suppress offenses. So, A.I. Dvoryak noted on this occasion that "... measures of administrative and procedural restraint are procedural actions that prevent the very possibility of continuing illegal acts, these measures make it possible to organize procedural actions aimed at restoring the violated interests of the individual and the state and creating conditions that ensure the implementation of the norms of substantive law" ^[26].

       In general, one and the same measure of administrative coercion, depending on the context of its use, can perform various functions. Thus, A.A. Belov, correctly, noted that "... the multiplicity of goals and grounds for the application of one measure of administrative coercion allows one and the same measure to be attributed to different groups of administrative coercion measures (or simultaneously to several groups of measures), depending on the immediate goals achieved as a result of the application of one of its grounds" ^[27].  

         Once again, we note that such a category as: "measures of administrative and procedural coercion", although close, is not identical to such a construction as "measures to ensure proceedings in cases of administrative offenses". Administrative procedural coercion covers a wider range of public relations related to the proceedings in cases of administrative offenses, not jelly measures to ensure the proceedings in cases of administrative offenses. Nevertheless, in doctrinal terms, measures to ensure the proceedings in cases of administrative offenses are better developed based on this, we will give a number of points of view regarding the designated categories. Thus, Yu.I. Popugaev wrote that "... measures of administrative procedural coercion are procedural actions regulated by the norms of administrative procedural law, both of a compulsory and non-compulsory nature. These measures are used for the purpose of detecting an offense, establishing the identity of the violator, identifying and securing evidence, as well as ensuring the execution of decisions in the case" ^[28]. The designated author highlighted an important feature of administrative and procedural coercion measures, this is that "within" these measures, procedural actions may take place and not of a coercive nature. While the measures to ensure the proceedings in cases of administrative offenses are of a compulsory nature and are applied in connection with an administrative offense committed or "suspicion" of its commission by one or another entity.     

Regarding the measures of administrative procedural support, V.A. Melnikov states that "... measures of administrative procedural support are a set of methods of influence in relation to established subjects of law, consisting in the application of legal restrictions to them in order to ensure the established procedure for the implementation of relevant legal relations" ^[29].  

A.P. Korenev noted that "... measures of administrative and procedural support are used for the purpose of detecting an offense, establishing the identity of the violator, obtaining evidence and creating other conditions for an objective examination of the case of an administrative offense, as well as the issuance and execution of a ruling on an administrative case" ^[30].  

In turn, A.Y. Sokolov notes that "... measures to ensure the proceedings in cases of administrative offenses are coercive measures that are used to ensure the normal course of proceedings in cases of administrative offenses, as well as in connection with an administrative offense committed, and thus they entail certain legal restrictions" ^[31].

A.I. Kaplunov writes that "... compulsory measures of administrative procedural support are methods, techniques and actions implemented in the framework of proceedings on an administrative offense. These actions are aimed at detecting tools and objects of an administrative offense, establishing the identity of the violator, detecting and securing evidence. They also create conditions for an objective and comprehensive examination of the case of an administrative offense, as well as contribute to the execution of the decision made on it" ^[32].

As it seems, without coercive measures of an administrative procedural nature, it is quite difficult to stop the administrative offense being committed, collect and consolidate the necessary evidence in the case, ensure compliance with the deadlines of the relevant administrative proceedings. Let us also pay attention to the fact that the very fact of bringing to administrative responsibility has a certain procedural impact. Thus, this impact consists of the drawing up of a protocol on an administrative offense; a protocol of inspection of the place of commission of an administrative offense; a protocol on the application of a measure to ensure proceedings in cases of an administrative offense, etc. (Article 28.1). In this regard, it is quite obvious that administrative and procedural coercion causes an objective need to establish legal restrictions of a personal, organizational, as well as property nature.

 In conclusion, it should be noted that administrative and procedural coercion is aimed at suppressing administrative offenses, ensuring the proceedings on administrative offenses, as well as the execution of decisions taken within the framework of this proceeding. It should be noted that within the framework of administrative and procedural coercion, coercive and restrictive measures of influence are applied, as well as non-coercive measures that are necessary to ensure the implementation of procedural coercion.