Theoretical Understanding and Practical Implementation of Administrative Responsibility for Beatings

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

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

The Constitution of the Russian Federation has declared that a person, his rights and freedoms are the highest value of the state. No one may be subjected to torture, violence, torture and other ill-treatment, humiliation of honor and dignity ^[1].

The Basic Law (Article 15) of the Donetsk People's Republic stipulates that one of the most important human rights is the right to personal inviolability, which implies physical and mental health of a person, protected by both the norms of the Constitution and the norms of criminal law ^{[2, p. 68]}. Among other rights and freedoms that act directly, determine the meaning, content and application of laws, the activities of legislative and executive authorities and are provided by justice, the right to protect the dignity of the individual, as well as the right to freedom and personal inviolability belong to everyone from birth, form the basis for building a democratic society, and therefore assume an increased level of guarantees from states in accordance with constitutional provisions and in accordance with generally recognized principles and norms of international law ^[3,4,5].

Personal inviolability, being an inalienable right inherent in everyone (jura personarum), the fundamental basis of the Maslow pyramid, serves as a prerequisite for the harmonious development of a person, without which his formation as a person is impossible. The State, becoming the guarantor of ensuring the personal inviolability of everyone, does not place the burden of its protection on the person himself, but ensures it by forming a legal space and the possibility of applying state measures to prevent danger and restore justice.

The psychological and physical integrity of a person at the present stage should be ensured in a dualistic space (real life and media space). It would seem that what could be more real than beating? The victim is in physical pain, his right to bodily integrity has been violated by physical impact on the corporis (physical body). However, the boundaries of reality, being shaky and fragile, pose many questions to the legislator, and after him law enforcement officers, the answers to which have yet to be given.

Part of these issues is that the object of protection by the State in rerum natura (by the nature of things) is not only the physical integrity of a person, but also his mental well-being. However, the legislator focuses on protecting the person from physical attacks, leaving the psychological, moral and emotional state beyond its protective influence. The disposition of the article as the material consequences of the composition of an administrative tort provides for the infliction of physical pain. The presence of other consequences: moral suffering, moral torment, mental disorder, stress, acquired phobias, compulsive disorders are not taken into account by the legislator and law enforcement officers as necessary elements of the composition of this administrative offense. The priority of the absolutization of bodily integrity as the sole object of the tort narrows it down to a purely "technical" connection of beatings exclusively with the intentional infliction of physical pain associated with a functional violation by external interference of the body. Although various concomitant feelings may arise when being beaten, such as shame, anger, resentment, and fear.

According to some authors, moral suffering, which is part of moral harm, should be considered "emotional and volitional experiences of individuals, expressed in their feeling of discomfort of any localization, feelings of humiliation, shame or inferiority, abnormality, despair and similar negative emotions," while physical suffering is reflected in the psyche of individuals feelings that cause they have feelings of pain or suffocation, bodily malaise, nausea, and physiological disorders" ^{[6, 35-36]}.

The point of view of R.D. Sharapov is interesting, who proves the existence of the category of "mental violence" through physical influence on the psyche ^{[7, 39-41]}. Considering such types of attacks that cannot endanger a person's life, but encroach on his honor and dignity (clicking a finger on the forehead, spitting in the face, etc.), the author believes that these acts cause serious harm to the mental state of a person, which definitely indicates the differentiation of mental and physical violence.

One of the antagonistic points of view of legal scholars, including A. Rarog, A.V. Naumov, L.V. Serdyuk, and others, is that the primary element is mental violence, involving the infliction of psychological trauma ^{[8, 85-86]}.

The Constitutional Court of the Russian Federation stressed the special constitutional importance of the dignity of the individual and the right to personal integrity, the need for increased protection of them, in connection with which the resolution notes that "an encroachment on a person, her rights and freedoms, and even more so on physical integrity, is at the same time an encroachment on human dignity, since a person becomes an object of arbitrariness and violence" ^[9].

This position is confirmed by judicial practice, it is emphasized that beatings may not leave behind any objectively detectable damage ^{[10, 320-323]}.

However, according to the expert assessment of specialists practicing in the field of psychology and psychiatry in the Omsk region, obtained as a result of interviewing, psychological injuries are more severe in consequences and long in time, require the intervention of specialists and postpone a more serious imprint on the development or formation of personality. (Interviews were conducted among specialists in the field of crisis and victim psychology, as well as psychiatrists in the period from February 2021 to December 2022.). The protection of psychological well-being is entrusted to the victim himself and is carried out in civil proceedings. Thus, in its decision on the statement of claim of citizen Sh. related to compensation for moral damage caused by beatings, the Chita District Court recognized that moral harm was also caused to citizen Sh. by beatings. When assessing the circumstances of the case, the court took into account that what happened affected both the general state of health of the victim, and the quality of his life and the life of his family (conflicts in the family became more frequent, he became more nervous, unbalanced, hard going through what happened, his authority as a father was undermined) ^[11].

The second circumstance that should be taken into account when considering this issue is that currently there is a tendency to duplicate many aspects of social life in the virtual space. A person's personal space and social connections are no exception. In this regard, Internet users record numerous violations of personal integrity, which become possible due to bodysharing in the process of mass virtualization of social life (from the English body sharing - the use of another body, in this context virtual). At the same time, the bodily integrity of a person is not violated, but beatings, including mental violence against a person, are subjected to the "other Self" - the avatar, which existentially "lives" in the meta-space.

To date, the position seems interesting, according to which the protection of the physical and psychological safety of a person can be carried out by filing a complaint even against the actions of not the physical body itself, but, for example, the quintessence of the essence of the personality – its avatars in the meta-space. So, N (female gender) explained that her avatar was subjected to "verbal and sexual harassment" by three or four male avatars in Horizon Venues (a social multiplayer platform that is a virtual space where people interact with each other by controlling three-dimensional avatars (metaverse). According to her statement, in the meta-space, male avatars began to harass her: they made sexual comments, touched the avatar's body for several minutes, while she perceived it as psychological violence. In the real–life space, personal security is regulated by law and is provided by the state to a much greater extent than in the space of the information matrix. However, performing the functions of an attractor, the media space is a more dynamic system, transfiguring the information field of real life, including its legal component. Thus, extrapolating the possibilities of expansion of the dynamically passionate media space system into real-life, one can confidently expect the subsequent development of the legal superstructure in the field of ensuring the right to personal security in the unity of the dualistic space, since encroachment on physical and mental integrity is carried out through the commission of violent acts in real life and in quasi-space.

In our opinion, public relations in the field of the realization of the right to personal bodily and mental integrity and human dignity should be considered as the direct object of an administrative offense provided for in Article 6.1.1 of the Administrative Code of the Russian Federation. Public relations in the field of human health protection should be recognized as an additional direct object of unlawful assault in the case of beatings.

In our opinion, moral suffering is an integral part of physical violence during beatings, which should be considered as an obligatory qualifying sign of this act. The infliction of psychological discomfort in the "meta-space" certainly cannot be considered as beatings, as well as physical pain without accompanying moral suffering. In our opinion, the disposition of Article 6.1.1 of the Administrative Code of the Russian Federation should be supplemented with an appropriate provision, stating it in the following wording: "Beatings or other violent acts that caused physical pain and moral suffering ...".

Public law, exercising the function of protecting the individual in the field of the legal field, is transformed into a conglomerate of norms of criminal and administrative law. As statistics show, in the structure of crime, acts against the person account for about 12.6% (256.5 thousand). More than 40% of them are cases of torture, beatings, intentional infliction of minor harm to health and death threats. Last year, the number of such crimes decreased. At the same time, since the inclusion in 2016 of Article 116.1 of the Criminal Code of the Russian Federation ("Beating by a person subjected to administrative punishment"), an increase in the number of such crimes has been recorded annually. In 2020, the internal affairs bodies registered 4,272 crimes under Article 116.1 of the Criminal Code of the Russian Federation. In 2021, their number increased by 21% (5,179), in 2022 – by almost 41% and amounted to 7,295 ^[12].

The decrease in the number of newly identified facts of beatings, against the background of the growth of socially dangerous forms of these torts, recorded over the past three years, is becoming a factor indicating the latent polymorphism of these illegal encroachments. The application of administrative and jurisdictional legislation under Article 6.1.1 of the Administrative Code of the Russian Federation since 2017, which began with the decriminalization of beatings, nevertheless cannot be considered in isolation from criminal and criminal procedure law. Currently, the responsibility for battery is provided for by both criminal law and legislation on administrative offenses. The commission of this act for the first time is an administrative offense, the responsibility for which is defined in Article 6.1.1 of the Code of Administrative Offenses of the Russian Federation. Repeated beatings by a person punished under the specified article of the Administrative Code of the Russian Federation entails the initiation of a criminal case under Article 116.1 of the Criminal Code of the Russian Federation, carried out on the basis of a victim's statement, in the order of private prosecution. If, in the case of committing such an act against a person who, due to a helpless, dependent position or for other reasons, cannot defend his rights and legitimate interests, a criminal case may be initiated by an investigator of the Department of Internal Affairs with the consent of the prosecutor, in the absence of a statement.

The law enforcement activities of police officers to prevent beatings and to bring those responsible for their commission to justice, as well as the courts in the context of their decision-making in cases related to beatings, have formed some features, the systematization of which allowed us to develop an algorithm for the actions of a police officer when receiving information about the commission of an administrative offense provided for in Article 6.1.1 of the Administrative Code RF "Beatings".

Considering that in most cases, a report of beatings is received by the duty station of the territorial body of internal affairs, it is necessary to consider the actions of the staff of the duty station of the internal affairs bodies responding to the appeals of victims, witnesses and other persons. It is from them that the effectiveness and efficiency of initial actions to uncover and investigate an offense or crime depends at the initial stage.

Upon receiving a report of beatings, the officer on duty is obliged to:

1. Immediately register a message in the Register of Statements and reports on Crimes, administrative offenses, and incidents (CUSP). (If the received message was anonymous and the applicant's data is unspecified, then the information is recorded in a Notebook for records. Then an inspection is immediately organized. Upon confirmation of the information received, its registration is carried out in the CUSP) ^[13].

2. To clarify the approximate nature and severity of bodily injuries accompanied by moral suffering, if necessary, to orient an ambulance to go to the place.

3. Report to the head of the territorial Department of Internal Affairs for the latter to make a decision. (When they receive a beating application, they are given a resolution indicating the perpetrator, the deadline for verification and the procedure for resolving the beating application).

4. Record the data of the head who commissioned the verification of the received report of beatings, the contractor, the terms of verification established in the resolution, and the time period in which the received report of beatings was considered.

5. Take urgent measures to respond to the received message. The implementation of this is the direction of the UUP, or the order of the PPSP or the investigative task force to carry out the appropriate verification with the fixation of the necessary information in the CUSP. (It is prohibited to transfer to the contractor for verification a statement (message) about beatings that is not registered in the CUS).

In case of self-identification of this offense, the employee is obliged to:

1.                 To establish the applicant's data (write down the full name, date of birth, address, contact phone number in the service book).

2.                 To find out the circumstances of the incident (time, place, circumstances, condition of the victim, the alleged location of the offender).

3. Report to the DCH for registration in the CUSP (subsequently provide the appropriate report).

In the case of self-identification of this offense, the employee is obliged to:

- to establish the applicant's data (write down the full name, date of birth, address, contact phone number in the service book);

- to find out the circumstances of the incident (time, place, circumstances, condition of the victim, the alleged location of the offender);

- report to the DCH for registration in the CUSP (subsequently provide the appropriate report).

The police officer who is charged with checking the statement (message) about the beatings is obliged to:

1. To clarify information about the applicant, the victim and his physical and mental condition, the number of participants in the conflict and other circumstances of importance.

2. Move to the specified address with the adoption of personal security measures (including requesting reinforcements from among the external services).

3. Upon arrival to the applicant, perform the actions provided for in Part 4 of Article 5 of the Federal Law "On Police".

4. Find out the circumstances of the incident (listen carefully, understand the essence of the conflict, identify the alleged perpetrator, witnesses, the victim and his physical and mental condition, if necessary, provide first aid, take measures to provide emergency medical care).

5. Accept a statement from the victim (upon receipt of the application, it is necessary to warn about criminal liability for knowingly false denunciation under Article 306 of the Criminal Code of the Russian Federation or administrative liability under Article 17.9 of the Administrative Code of the Russian Federation). When submitting an application (message) about beatings orally, it is necessary to draw up a protocol for accepting an oral application, which is signed by the applicant and the person who accepted this application.

6. Explain to the victim his rights and obligations (Article 51 of the Constitution of the Russian Federation, 25.2 of the Administrative Code of the Russian Federation), get an explanation in accordance with Article 26.3 of the Administrative Code of the Russian Federation about the circumstances of his bodily injury and moral suffering.

7. Identify witnesses, eyewitnesses, explain to them the rights and obligations (Article 51 of the Constitution of the Russian Federation, 25.6 of the Administrative Code of the Russian Federation), receive an explanation in accordance with Article 26.3 of the Administrative Code of the Russian Federation, warning of administrative responsibility under Article 17.9 of the Administrative Code of the Russian Federation.

8. Send the victim to a medical institution to undergo a forensic medical examination in order to establish the severity of bodily injuries and other health disorders (art.26.4 of the Administrative Code of the Russian Federation).

9. Considering that the vast majority of the offenses under consideration are committed by citizens who are intoxicated and the need to clarify all the circumstances that matter (for example, committing an administrative offense while intoxicated is a circumstance aggravating administrative responsibility (art. 4.3 of the Administrative Code of the Russian Federation), send a person in relation to whom there is data (which appeared as a result of a survey of the victim) to believe that he is an offender, for a medical examination (Article 27.12.1 of the Administrative Code of the Russian Federation).

10. If necessary, deliver the offender to the territorial body of the Ministry of Internal Affairs of Russia or a police station (if the place of commission of this offense is a house, i.e. the beatings were committed on the basis of personal hostile relations in the field of family and domestic conflict, then, as a rule, the victim(s) is well acquainted with the offender and is the possibility of establishing his identity at the location. If a person does not have documents with him (a guest, a random person), or the place of commission is a street, park, square, stadium, or other public place, delivery is applied).

10.1. Before delivery, it is necessary to explain the reason and grounds for applying measures to a citizen restricting his rights and freedoms, as well as the rights and obligations of a citizen arising in this regard (Article 14 of the Federal Law "On Police", Article 25.1 of the Administrative Code of the Russian Federation). Accordingly, the reason in this situation will be the commission of an administrative offense. The grounds are provided for in clauses 8, 13, Part 1. of Article 13 of the Federal Law "On Police"; Articles 27.1, 27.2 of the Administrative Code of the Russian Federation.

Upon a written application from citizens who are in their home with them, a citizen who has committed an offense and is intoxicated may be taken to medical organizations or specified specialized organizations or to the office of a territorial body or police unit (paragraph 14. part 1 of Article 13 of the Federal Law "On Police", Order of the Ministry of Internal Affairs of Russia dated 13 April 2021, No. 212 ^[14]).

10.2. When delivering by motor transport, before boarding a patrol car, take precautions to exclude the possibility of injury, attacks on police officers and damage to property ^[15]. We believe that such measures may include conducting an external inspection by "patting", probing clothes.

If there are grounds to believe that these citizens are carrying weapons, ammunition, ammunition cartridges, explosives, explosive devices, narcotic drugs, psychotropic substances or their precursors or toxic or radioactive substances, as well as in order to detect and seize the instruments of committing an administrative offense, it is necessary to conduct a personal search, an inspection of things that are in possession an individual, and in case of detection, their seizure with the preparation of an appropriate protocol (clause 16. part 1 of Article 13 of the Federal Law "On Police"; Articles 27.7; 27.10 of the Administrative Code of the Russian Federation).

10.3. Draw up a protocol on delivery or make an appropriate entry in the protocol on an administrative offense or in the protocol on administrative detention. A copy of the delivery protocol is handed to the delivered person at his request (Article 27.2 of the Administrative Code of the Russian Federation).

11. To obtain an explanation of the person against whom the proceedings on an administrative offense are being conducted (26.3 of the Administrative Code of the Russian Federation). Explain the rights and obligations provided for in Article 51 of the Constitution of the Russian Federation, 25.1. of the Administrative Code of the Russian Federation.

Based on the data obtained during the interview, as well as on visual observation of the situation at the crime scene, the police officer chooses the next course of action. If there is evidence to believe that the beatings represent a push, a single palm strike: on the face (slap), on the body (slap), etc., then the police officer should adhere to the administrative and jurisdictional procedure. In the case of repeated blows, a single punch, a blow with an object (a glass, a jar, a glass, a stick, etc.), when a police officer has reasonable doubts that the degree of harm caused to the victim's health can be further qualified as minor harm to health, he is obliged to adhere to the procedure established in the Code of Criminal Procedure of the Russian Federation.

12. Draw up a report on the detection of signs of an administrative offense in a citizen's message and register it in the KSP, if the victim's statement was not registered earlier.

13. To make a ruling on the initiation of an administrative offense case and conducting an administrative investigation in accordance with Article 28.7 of the Administrative Code of the Russian Federation. This document specifies the date and place of drawing up the definition, the position, surname and initials of the person who made the definition, the reason for initiating an administrative offense case, data indicating the existence of an administrative offense event, article of the Administrative Code of the Russian Federation.

When making a ruling on the initiation of an administrative offense case and conducting an administrative investigation, the individual in respect of whom it was issued, as well as the victim and witnesses, are explained their rights and obligations provided for by law, which is recorded in the ruling.

14. Check the person who committed an administrative offense through the module "Administrative practice" of the SOP, as well as using all available information databases. The purpose of the audit is to establish accurate data on the presence or absence of data on bringing this person to administrative responsibility under Article 6.1.1 of the Administrative Code of the Russian Federation and, if such are established, to check the limitation period of involvement.

15. After receiving the results of the CME, make a procedural decision.

15.1. Upon receipt of the results of a forensic medical examination containing information that the victim has not suffered minor harm that caused a short-term health disorder or minor permanent loss of general disability, it is necessary to re-interview the person who caused bodily injuries to the victim about the circumstances of the incident ^{[16, pp. 1-9]}. The survey can be conducted both at the place of residence and in the office. In the second case, it is possible to apply such a measure to ensure proceedings in cases of administrative offenses as a drive (27.15 of the Administrative Code of the Russian Federation).

15.2. In accordance with Article 28.2 of the Administrative Code of the Russian Federation, draw up a protocol on an administrative offense under Article 6.1.1 of the Administrative Code of the Russian Federation, which reflects all the most significant circumstances of the incident (data of the victim, data of the offender, place, time, method of commission, results of a forensic medical examination (examination), the presence or absence of witnesses).

15.3. Send the materials of the case of an administrative offense to the court for consideration (Article 28.8 of the Administrative Code of the Russian Federation) with the issuance of accompanying documents in the form of a ruling on the referral of the case for consideration.

After the end of the administrative investigation and sending the protocol to the court, the activity of a police officer on the application of measures to ensure the proceedings in an administrative offense case does not end, because administrative arrest is provided for beatings and the participation of the offender in court is mandatory, it is necessary to bring this person to court ^{[17, 42-45]}.

16. If, according to the results of the SME, minor harm has been caused to the victim, which caused a short-term health disorder or a slight persistent loss of general working capacity, prepare a report on the detected crime and transfer it to the body of inquiry for making a decision on initiating a criminal case under Article 115 of the Criminal Code of the Russian Federation.

16.1. In case of establishing the fact of repeated commission by the guilty person of a similar offense within a year – to make a decision on the initiation of a criminal case under Article 116.1 of the Criminal Code of the Russian Federation.

Scientific understanding of problematic issues allowed us to formulate some conclusions. Firstly, the object of protection of the administrative and legal norm is not only public relations related to the protection of physical health, but also the mental, moral and moral well-being of the individual. Secondly, in our opinion, an obligatory sign of the objective side is not only physical pain, but also moral suffering caused by this pain.

When identifying this type of offense, police officers should take into account the legal and organizational features of actions in suppressing and documenting beatings. This will avoid mistakes in the course of bringing the guilty person to administrative responsibility under Article 6.1.1 of the Administrative Code of the Russian Federation by authorized bodies. That is why the proposed algorithmization of the actions of law enforcement officers when receiving information about the commission of beatings will contribute to a more effective application of administrative legislation.