Issues of Administrative Detention as a Measure of Administrative Procedural Coercion Used in the Field of Internal Affairs

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

Measures of administrative coercion are quite diverse, they are subdivided on a variety of grounds, namely: the method of influence, the subject to whom they are addressed, the procedural content, the nature of restrictions, the legal consequences of their actions, etc. Measures of administrative and procedural coercion occupy a special place in the system of administrative coercion. These measures are defined by law as measures to ensure the proceedings in cases of administrative offenses. In the system of designated legal means, one of the police procedural measures is "administrative detention", which is often called "short–term restriction of freedom". And since the freedom of the individual is a key value, it is very important that administrative detention is carried out on a legal basis, and the administrative detainee has all the necessary procedural guarantees for the protection and protection of his rights and legitimate interests.

Administrative detention – being a measure of administrative coercion, carries the legal ideology of the corresponding state influence. In the mechanism of administrative detention, norms of a material and procedural nature are intertwined, there may be tactical features of its implementation, as well as grounds for the use of physical force and special means. As M.V. Mosin noted, "... in abnormal circumstances, during the implementation of administrative detention, a situation of professional risk may arise" ^[1]. Administrative detention is a measure to ensure the proceedings in cases of administrative offenses, the functionality of this measure is defined in the Administrative Code of the Russian Federation. Based on this, administrative detention should be distinguished from "detention", which has a different, possibly preventive purpose. Please note that the Federal Law of February 7, 2011 "On the Police" stipulates that the police have the right to detain (Article 14). The law lists many grounds for detention. Let's pay attention to some of them that are implemented in administrative practice. Thus, the police have the right to detain persons in respect of whom proceedings are being conducted on cases of administrative offenses, in addition, the police have the right to detain persons evading the execution of administrative punishment in the form of administrative arrest.

It should be emphasized that measures of administrative and procedural coercion are not only an institutional category, these measures are differentiated into types based on their subject functionality. It should be noted that in the doctrinal aspect there are studies of individual measures of appropriate state coercion. Note that even special studies are devoted to some measures of administrative and procedural coercion. In this context, attention is drawn to the work of A.O. Poddubny, who investigated the special conditions for the application of administrative detention to persons performing public functions and possessing legal immunities.

The disclosure of the essence of a separate measure of administrative-procedural coercion, of course, cannot be "torn out" from the general context of the application of administrative-procedural coercion measures, in general. And therefore, in the available studies, attention is drawn to the general principles of administrative and procedural coercion.

At the same time, it should be borne in mind that the implementation of a separate measure of administrative and procedural coercion has its own characteristics, both procedural and tactical. It should also be pointed out that the possibility of applying certain measures of administrative and procedural coercion is carried out only by those entities that are specifically defined by the regulations. In particular, this concerns the legal regulation of the use of administrative detention. Thus, the order of the Ministry of Internal Affairs of Russia dated August 30, 2017 No. 685 fixes the list of officials of the Ministry of Internal Affairs of the Russian Federation who are authorized to draw up protocols on administrative offenses and to carry out administrative detention. All this indicates the seriousness of such a measure of administrative and procedural impact as "administrative detention".

Administrative detention is a kind of "detention" as a measure of state coercion, in general. Detention as a measure of state coercion is regulated by the norms of various industry affiliation, the most substantial legal institution of detention has been developed in the science of criminal procedure. Thus, S.I. Girko and E.S. Berezina noted that "... the legal institution of detention of a suspect is understood as a set of legal norms regulating social relations arising from the physical detention and delivery of a person to bodies with appropriate competence" ^[2].

It should be noted that in the criminal process there is such a subject as a suspect in the commission of a crime (Article 46 of the Code of Criminal Procedure of the Russian Federation), such a measure of procedural restraint as "detention" can be applied against a suspect (Article 91 of the Code of Criminal Procedure of the Russian Federation). The Code of Criminal Procedure of the Russian Federation regulates in sufficient detail the grounds for the detention of a suspect, in this regard, some provisions regarding detention could be adapted for the Administrative Code of the Russian Federation in terms of regulating the implementation of "administrative detention".  In fact, administrative detention is often carried out against a person suspected of committing an administrative offense, but the Administrative Code of the Russian Federation does not determine the status of this subject.

By its functionality, administrative detention in most cases is aimed at suppressing an administrative offense being committed, as well as establishing the identity of the violator, it is also necessary to draw up a protocol on an administrative offense if it is impossible to draw it up on the spot of detecting an administrative offense" (Article 27.1 of the Administrative Code of the Russian Federation). Administrative detention is also carried out when it is necessary to ensure the correct and timely consideration of the case of an administrative offense, as well as the execution of the decision on the case of an administrative offense (Article 27.3). Administrative detention is a procedural measure, and the fact of the relevant detention is recorded in the protocol on administrative detention. In the protocol on administrative detention, the date and place of its compilation, the position, surname and initials of the person who drew up the protocol, information about the detained person, time, place and motives of detention are indicated. At the same time, a copy of the protocol on administrative detention is handed to the detained person at his request (Article 27.4).

It should be noted that the protocol is drawn up in two copies, this is to a certain extent guarantees that no additional information will be added to the content of this document "retroactively". In addition, the protocol is necessary for the detained person for a possible appeal against the measure of administrative detention.

Next, we will say a few words about the information that should be reflected in the protocol on administrative detention. As a rule, the protocols are drawn up as formally as possible, carelessly. A.K. Solovyova points out that "... the protocols often lack data on the place, time of the commission of an administrative offense, information about witnesses, victims, there is no correct qualification of the deed" ^[3].

V.R. Kisin also notes that "... the protocol on administrative detention often does not disclose the motive for detention, but in the end it is the motive that indicates the purpose of detention and the basis for its implementation" ^[4].

The situation of administrative detention in order to establish the identity of the violator raises questions. The identity of a citizen is established by one of his documents, in many cases such a document is a passport. According to the Federal Law of February 7 , 2011 "About the police" a police officer has the right to check the identity documents of a citizen, "if there is data giving grounds to suspect him of committing a crime. If a police officer believes that a citizen is wanted, or if there is a reason to initiate an administrative offense case against him or there are grounds for his detention" (Article 13). As D.S. Dubrovsky noted, "... verification of identity documents is the basis for administrative detention only when a person who has committed or is suspected of committing an administrative offense does not have documents with him, and he hides his personal data" ^[5].

Today, the identity of a citizen can be established using digital technologies, and for this it is not necessary to persistently demand the presentation of a passport or other document that can verify the identity of a citizen. It should be noted that in itself the requirement to present a document for verification and identification of a person is a measure of coercion. Identification may also have a procedural purpose and thus be a measure of administrative and procedural coercion, with which proceedings on an administrative offense can be initiated. And therefore it would be correct to include such a measure as "... verification of documents and identification of a person suspected of committing an administrative offense" among the measures to ensure the proceedings in cases of administrative offenses.

Taking into account the procedural complexity of such a measure of administrative influence as "administrative detention", we will draw attention to some doctrinal points of view regarding the appropriate measure of legal influence. As I.T. Tarasov wrote at the time, "... police personal detention takes place in all cases when society or an individual is threatened by such a danger that can only be eliminated by personal detention" ^[6]. It should be noted that the designated author is very consistent in the classification of types of detention. Thus, I.T. Tarasov singled out "criminal detention", as well as "police detention". To the latter type of detention, I.T. Tarasov attributed "personal detention as a police punishment", as well as "preventive police personal detention".

Next, we will give several points of view on how such a category as "administrative detention" is disclosed in the legal doctrine. So, A.S. Telegin once wrote that "... administrative detention as a measure of coercive influence on the offender has a dual character. On the one hand, it is designed to ensure both the suppression of the offense (if the detention is carried out during the commission of the offense) and the possibility of bringing the perpetrator to justice, and on the other – only bringing the violator to justice (if an administrative offense) it has already been done" ^[7].

A.Y. Sokolov writes that "... administrative detention as a measure to ensure the proceedings in cases of administrative offenses is a short-term restriction of the freedom of an individual, applied in exceptional cases, in order to ensure the correct and timely consideration of cases of administrative offenses and the execution of the decision in this case. At the same time, the administratively detained person is in specially designated premises for this purpose, for a time determined by law, in conditions that exclude the possibility of his unauthorized abandonment" ^[8].

A.O. Poddubny also notes that "... administrative detention is a short–term deprivation of liberty of an individual with his detention in specially designated premises or institutions in conditions that exclude the possibility of their unauthorized abandonment. This effect is carried out in exceptional cases when the application of other measures is insufficient to fulfill the tasks of the proceedings on administrative offenses" ^[9].

In the territorial bodies of the Ministry of Internal Affairs, an administratively detained person, as a rule, is in a closed room at the duty station of this body. The procedure for working with delivered and detained citizens will be determined by the Order of the Ministry of Internal Affairs of Russia No. 389 dated April 30, 2012 "On approval of the Instruction on the procedure for performing duties and exercising police rights in the duty station of the territorial body of the Ministry of Internal Affairs of Russia after the delivery of citizens".

In the duty station of the Department of the Ministry of Internal Affairs, the circumstances of the fact of detention are clarified and on the basis of such proceedings, a decision is made either to place a person in a special room of the duty station intended for the detention of persons detained by the police or to release the relevant person in the absence of grounds for his detention.

Officials of the territorial bodies of the Ministry of Internal Affairs have extensive experience working with administratively detained persons, in addition, the relevant premises are generally properly equipped to ensure the implementation of administrative detention. In this regard, A.O. Poddubny's proposal to supplement Chapter 27 of the Administrative Code of the Russian Federation with a new measure to ensure the proceedings in cases of administrative offenses seems superfluous. So, the designated author suggests such a measure as "... staying in the office of the body authorized to draw up protocols on administrative offenses" ^[10].

Based on the position indicated above, it can be concluded that administrative detention is often used precisely in connection with the commission of an administrative offense. However, it is necessary to make an explanation that not every administrative offense can be the basis for administrative detention. As D.N. Bakhrah correctly noted, "... administrative detention can be carried out if, out of the total mass of prerequisites, there are serious grounds to believe that active illegal actions will continue, that the offender may cause damage to public interests, other citizens and himself" ^[11].

In fact, the decision on administrative detention is made by the appropriate official, who assesses the situation on the spot, which is, as it were, the "basis" for administrative detention. Thus, there is a subjective factor in the issue of making a decision on administrative detention, despite the fact that the Administrative Code states that administrative detention can be applied in exceptional cases (Article 27.3). An indication that administrative detention will be applied in exceptional cases is a kind of formality. Hundreds of thousands of citizens and foreign citizens are delivered and detained daily to the territorial and linear bodies of the Ministry of Internal Affairs. According to the Ministry of Internal Affairs of Russia, 391,155 administrative detentions were carried out in 2021. Therefore, it is not necessary to say that administrative detention is an exceptional (rare) measure of administrative impact.

Despite the existing practice, A.V. Seregin wrote at the time that "... administrative detention is not a necessary consequence of the commission of every administrative offense. Persons exercising administrative supervision should take measures to thoroughly understand the circumstances of the violation on the spot, the identity of the violator and decide whether to bring him to administrative responsibility" ^[12].

Sokolov is also categorical in assessing the grounds for administrative detention. Thus, the designated author writes that "... the mere fact of drawing up a protocol on an administrative offense, for which a citizen may be sentenced to administrative arrest, cannot serve as a basis for administrative detention of a person" ^[13].

It should be noted that it is the possibility of applying such an administrative penalty as administrative arrest that often determines the decision to use administrative detention, and even up to 48 hours. Such a decision raises questions, based on this basis, the grounds for administrative detention require some clarification. It would be correct to fix a group of administrative offenses in the Administrative Code of the Russian Federation, for the commission of which administrative detention should definitely be applied. To improve the quality of the legal basis of administrative detention, it would also be correct to fix that when committing a minor administrative offense, the appropriate measure of procedural influence should not be applied under any circumstances.

It should also be noted that administrative detention should not be carried out if there are no obstacles to establishing the identity of the relevant person at the place of commission of an administrative offense, and there are also no obstacles to drawing up a protocol on an administrative offense against the relevant violator. It should be understood that administrative detention cannot be carried out in the absence of grounds for its implementation. As P.I. Kononov correctly noted, "... administrative detention can be carried out only if there are grounds established by law, the list of which should be exhaustive" ^[14].

Proceeding from this, it is quite obvious that in order to increase the effectiveness of the measures of administrative procedural coercion, in general, and the use of administrative detention, in particular, it is necessary to clearly define the grounds for their implementation. Proceeding from this, A.Y. Sokolov noted that the grounds for administrative detention of a person may be: "the presence of signs of an administrative offense in the act of a citizen; disobedience to the lawful requirements of the competent authorities and their officials. Also, administrative detention can be carried out at the discretion of the person's attempt to escape from the place of committing an administrative offense, his aggressive behavior towards officials; the inability to identify the offender, as well as the inability to draw up a protocol on an administrative offense" ^[15].

It seems that administrative detention can be carried out by a subject authorized to apply this measure of administrative coercion, if there is information that he received from technical means of control, or directly from witnesses of an administrative offense committed, who say that there are signs and elements of the composition of an administrative offense in the behavior of a person.

A person may be subjected to administrative detention if there are traces of a committed offense on his clothes or there are objects or things that he should not own, for example, tools or means of committing an administrative offense. It should also be emphasized that a specific type of administrative detention is the detention of a driver of a car or motorcycle who is suspended from driving a vehicle and sent for a medical examination. These circumstances suggest that administrative detention is an important police measure of influence, which is aimed at ensuring law and order, without this measure of administrative influence, police work would be ineffective. At the same time, it should be noted that administrative detention primarily performs a procedural function, although other functions of this measure of influence, such as the suppression and prevention of administrative offenses, are also important.

It would seem that sufficient attention has been paid to the issues of administrative detention, both in the normative and in the doctrinal aspect, however, not all issues have been resolved. As V.A. Ivanov noted at the time, "... an analysis of the practice of administrative detention shows that sometimes citizens are detained in cases not provided for by law. The consequence of this is the detention of citizens in the absence of signs of an administrative offense in their behavior" ^[16].

This problem has not disappeared anywhere at the present time. Already in the modern period, A.S. Telegin also pointed out the need for a clearer normative definition of the grounds for administrative detention. We have already said this, however, we will point out that the designated author writes that "... the grounds for the use of administrative detention are quite diverse. Therefore, in order to improve the legal regulation of administrative detention, it seems appropriate to adopt a single regulatory legal act that would regulate all issues related to the application of this measure of procedural coercion" ^[17].

The reproduced idea deserves attention, since the relations related to the legal regulation of administrative detention somewhat go beyond the scope of the Administrative Code of the Russian Federation. These relations are regulated by: Federal Law of February 7, 2011. "On the Police", as well as as already indicated by the order of the Ministry of Internal Affairs of Russia dated August 30, 2017 No. 685 "On officials of the system of the Ministry of Internal Affairs of the Russian Federation authorized to draw up protocols on administrative offenses and carry out administrative detention".

Please note that currently there is already a practice of regulating the implementation of certain measures of administrative coercion, by a separate law. For example, the Federal Law of April 26, 2013 "On the procedure for serving administrative arrest" can serve as an example.  Despite the current regulation, it should be noted that one should not get carried away with the adoption of new laws and other regulatory legal acts regulating relations related to administrative coercion, since this complicates the practice of its application. It is necessary to strive as much as possible to regulate relations related to administrative coercion within the framework of the Administrative Code of the Russian Federation, especially if it concerns measures of administrative and procedural coercion. However, there may be exceptions to this rule, in particular, concerning the regulation of administrative detention. Administrative detention as a measure of procedural coercion is very meaningful, and at the same time, this measure of procedural coercion significantly restricts the personal rights of citizens, based on this, its application requires the creation of guarantees for the observance of a number of personal and procedural rights of an administratively detained person.

It should be noted that an administratively detained person has been provided with a number of procedural guarantees today. Thus, the Administrative Code of the Russian Federation determines that "... a person against whom proceedings are being conducted on an administrative offense has the right to get acquainted with all the materials of the case, give explanations, present evidence, file petitions and challenges, as well as use the legal assistance of a defender" (Article 25.1). Among the guarantees of legality in the application of measures of administrative and procedural coercion can also include such prescriptions as "... the harm caused by the illegal application of measures to ensure the proceedings in the case of an administrative offense is subject to compensation" (Article 27.1). Also, "... a protocol is drawn up on delivery or a corresponding entry is made in the protocol on an administrative offense or in the protocol on administrative detention" (Article 27.2), etc. The fact of administrative detention may be appealed by the interested person to a higher authority or a higher official, to the prosecutor's office, as well as to the court. As V.A. Melnikov noted, "... this right is necessary to ensure the protection of personal and property rights of a person and not to allow the use of administrative coercion measures against him that are not caused by the interests of establishing the truth, as well as achieving other tasks of administrative proceedings" ^[18]. 

It should also be noted that at the request of an administratively detained person (if he himself cannot do this for some reason), his relatives, possibly a lawyer, other persons at the place of work or study of the detained person should be informed about his location.

However, administrative detention is not only a question of law, its duration and tactics of its implementation, it is also a question of the place and conditions of "serving" this detention, issues of the detained person's life, as well as his nutrition and health. The provisions of the Administrative Code of the Russian Federation do not say anything about these moments that accompany administrative detention. All these issues, although they do not have a direct procedural nature, nevertheless, are seen as important from the point of view of ensuring the requirements of legality, the application of an appropriate measure of administrative coercion.

As already noted, administrative detention is also a question of the duration of its validity. It should be emphasized that administrative coercion has an urgent (short-term) nature. As defined by the Administrative Code of the Russian Federation "... administrative detention, that is, short-term restriction of the freedom of an individual" (Article 27.3), "the term of administrative detention should not exceed three hours, and the term of administrative detention of a person in a state of intoxication is calculated from the moment of his sobering up" (Article 27.5).

 As A.S. Dugenets writes, "... depending on the term and subjects in respect of which administrative detention is applied, it can be general and special. General detention will apply to any person and its validity period is three hours. Special detention is applied to persons who are intoxicated for the period necessary for their sobering up" ^[19].

Currently, the Administrative Code of the Russian Federation stipulates that the total period of time required for sobering up a person in a state of intoxication from the moment of his delivery and administrative detention cannot exceed 48 hours (Article 27.5).

Please note that in the recent past, administratively detained persons in a state of alcoholic intoxication were taken to a medical detoxification center, this organization performed a police function using medical means. So, according to the order of the Ministry of Internal Affairs of the USSR dated May 30, 1985 No. 106 "On approval of the Regulations on the medical detoxification unit at the City Agency of Internal Affairs and Instructions for providing medical care to persons delivered to medical detoxification units", "... persons who were on the streets, in squares, parks, train stations, airports and others were delivered to the medical detox unit drunk in public places, insulting human dignity and public morality."  As it followed from the order "... the period of sobering up of persons taken to a medical sobering-up facility was established by a paramedic, based on the state of intoxication of the person concerned, however, this period did not exceed 24 hours (paragraph 9). In the absence of signs of intoxication in a person who had been sobered up, the paramedic reported to the duty inspector of the medical sobering-up facility about the possibility of discharge of the delivered. The period of stay in the medical detox should not be less than three hours, but should not exceed one day" (paragraph 10). It should be noted that physical force could be applied to persons taken to a sobering-up facility in cases of their violent behavior.

As we know, there are no medical detox centers now. However, despite this, taking into account the positive experience of working with the relevant category of detainees, it is also necessary in some cases to take into account the designated time interval for determining the time of sobering up of an administratively detained person, using the help of a medical professional for this purpose, and for the time of sobering up, respectively, to extend the period of administrative detention.

It should be noted that administrative detention is closely connected with the delivery of the relevant person. Delivery is the forcible transfer of an individual for the purpose of drawing up a protocol on an administrative offense if it is impossible to draw it up at the place of detection of an administrative offense (Article 27.2).  Delivery is, in fact, also a short-term restriction of freedom. The delivery period is not defined by the regulations, however, the Administrative Code of the Russian Federation says that the delivery should be carried out as soon as possible. As A.N. Sapogin noted, "... the terms of administrative detention can be divided into two types – the terms of delivery and the terms of actual administrative detention" ^[20]. It follows from this that the delivery is, in fact, an administrative detention, in its dynamics.

P.I. Kononov also spoke very categorically about the delivery and administrative detention. Thus, the designated author writes that "... the term of administrative detention should include not only the time during which the detainee is in the premises of law enforcement agencies. The period of administrative detention should also include the time during which the person was forcibly taken to the premises of law enforcement agencies" ^[21].

This approach deserves attention, since it can exclude various kinds of temporary abuses that may sometimes occur with the delivery of the relevant person. It should be noted that the person being delivered is restricted in freedom and his rights, which are identical to the rights of an administrative detainee, must be explained to him. Based on this message, M.V. Mosin proposed to combine delivery and administrative detention into a single measure to ensure the proceedings in cases of administrative offenses ^[22]. However, this idea has not received its further support.

At the end of the study, it can be concluded that administrative detention is a measure of administrative procedural coercion, which is used to prevent the commission of an administrative offense and aimed at ensuring the implementation of proceedings in cases of administrative offenses, excluding the implementation of counteraction on the part of the suspect in the commission of an administrative offense and allowing to execute the decision issued in the relevant administrative case.

According to the Ministry of Internal Affairs, 391,155 administrative detentions were carried out in 2021.