Actual Problems of Execution of Administrative Deprivation of the Right to Drive Vehicles on the Example of Interaction of Traffic Police and Gostechnadzor Bodies of Russian Federation

Lomov Ivan Sergeevich Postgraduate Student, Department of Financial Law, Constitutional, Standing and Administrative Litigation, Southwestern State Universityy 305040, Russia, Kursk region, Kursk, ul. 50 Let Oktyabrya, 94 m9sowow@mail.ru Other publications by this author

A special right from the point of view of domestic scientific literature is the opportunity provided by law for an individual to engage in a certain type of activity. The granting of a special right is an unconditional prerogative of the State, since it is the State, and specifically the relevant authorized public authority, that is responsible for the legal and factual consequences of granting the subject of administrative and legal relations with this right.

The exercise of this right always carries the risk of harm to health, human life, the environment, property, may lead to violation of the foundations of the constitutional order, morality, rights and legitimate interests of people. Special law is always controlled by the State and is closely related to the protection of the above-mentioned tangible and intangible assets by the State.

The legislation of the Russian Federation has a reasonable and sufficient mechanism of control over the subject of administrative and legal relations endowed with a special right. The key component of this mechanism is legal (administrative) responsibility.

Signs of legal responsibility ^[1]:

1. It has a retrospective character.

2. The behavior must contain signs of an offense (namely, to be guilty behavior; if there is no guilt, then legal liability will not occur).

3. The relationship with the state and public condemnation of the offender's behavior.

4. Has a punitive nature. The offender, as a result of the act committed by him, has new legal obligations.

5. Has the character of undergoing (as a result of the offense, special obligations arise - to undergo deprivation of personal, property and other plans).

Administrative responsibility is legal responsibility, which is expressed in the appointment of an administrative punishment by an authority or an official with appropriate powers to a person who has committed an offense ^[2].

There comes administrative responsibility for acts that are not as dangerous to society as crimes. And the legislator, describing administrative offenses in the Administrative Code of the Russian Federation, does not call them socially dangerous acts ^[3].

It should be noted that in accordance with Article 3.8 of the Code of Administrative Offences of the Russian Federation (hereinafter – the Administrative Code of the Russian Federation) ^[4] a special right is granted exclusively to individuals. Accordingly, administrative punishment in the form of deprivation of a special right is borne only by individuals. Domestic authors often mention in their works the need to make changes to the subject matter of this article, namely, fixing the possibility of bringing legal entities to administrative punishment in the form of deprivation of a special right. In our opinion, these proposals cannot be implemented based on the nature of the activities of individuals endowed with a special right. The material basis of such activity is tied to a specific person, and not to the organization as a whole.

An analysis of the current legislation on administrative offenses allows us to conclude that the deprivation of the following rights is taken into account:

1) the right to participate in the circulation of civilian weapons;

2) hunting rights;

3) the right to drive vehicles of all types.

Let us dwell in more detail on the subject of our research – the deprivation of the right to drive vehicles of all kinds.

First of all, the concept of "vehicle" should be defined. In accordance with the note to Article 12.1 of the Administrative Code of the Russian Federation, a vehicle should be understood as a motor vehicle with an internal combustion engine displacement of more than 50 cubic centimeters or a maximum electric motor power of more than 4 kilowatts and a maximum design speed of more than 50 kilometers per hour, as well as trailers to it subject to state registration, as well as tractors, self-propelled road-construction and other self-propelled vehicles, vehicles for the management of which in accordance with the legislation The Russian Federation is granted a special right on road safety.

In addition, the definition of the concept of "vehicles" is also given by the Supreme Court of the Russian Federation ^[5]: from this point of view, vehicles in Chapter 12 of the Administrative Code of the Russian Federation are understood as:

- motor vehicles subject to state registration with an internal combustion engine displacement of more than 50 cubic centimeters and a maximum design speed of more than 50 kilometers per hour;

- motor vehicles subject to state registration with a maximum electric motor power of more than 4 kilowatts and a maximum design speed of more than 50 kilometers per hour;

- trailers subject to state registration to the specified motor vehicles;

tractors, self-propelled road construction and other self-propelled machines;

- vehicles for which, in accordance with the legislation of the Russian Federation on road safety, a special right is granted (for example, a moped).

Taking into account the above provisions, it can be concluded that vehicles are understood as vehicles supervised by the State Road Safety Inspection Bodies (hereinafter referred to as traffic police bodies) and motor vehicles intended for movement on public roads, and supervised by the State Inspection bodies for supervision of the technical condition of self–propelled vehicles and other types of equipment of the relevant subject of the Russian Federation. Federations (hereinafter referred to as Gostekhnadzor bodies) self–propelled vehicles and other types of equipment.

The legal basis for the activities of the traffic police and Gostechnadzor bodies on granting individuals the right to drive vehicles and bringing them to administrative punishment in the form of deprivation of this right is (with the exception of the Administrative Code of the Russian Federation):

- Traffic rules ^[6];

- Federal Law "On Self-propelled vehicles and other types of equipment" ^[7];

- Rules for conducting examinations for the right to drive vehicles and issuing driver's licenses ^[8];

- Rules for admission to the management of self-propelled vehicles and the issuance of certificates of a tractor driver (tractor driver) ^[9].

In accordance with Part 1 and Part 2 of Article 32.5 of the Administrative Code of the Russian Federation, the bodies carrying out the execution of decisions on the deprivation of a special right are:

- officials of the traffic police on the decisions of the judge on the deprivation of the right to drive a vehicle;

- officials of the State Technical Supervision bodies according to the decisions of the judge on the deprivation of the right to drive self-propelled machines (tractors, road construction equipment, etc.).

The documents confirming the right to drive vehicles, in the case we are considering, are a driver's license (hereinafter referred to as a driver's license) and a tractor driver's license (hereinafter referred to as UTM).

In accordance with part 1 of Article 32.6 of the Administrative Code of the Russian Federation, the execution of the judge's decision on the deprivation of the right to drive a vehicle is carried out by the seizure and storage by the body executing this type of punishment available to the person of the VU and (or) UTM during the entire period of deprivation.

It is most important to pay attention to the provisions of Article 32.7 of the Administrative Code of the Russian Federation, according to which the term of deprivation of a special right begins from the date of entry into force of the relevant judge's decision. At the same time, a person deprived of a special right is obliged to:

 independently hand over within three working days from the date of entry into force of the decision of the VU and (or) UTM to the body executing this type of punishment;

in case of loss of the UU and (or) UTM, declare the loss of documents to the specified authority within the same period.

Before proceeding to the designation of the problems of enforcement of these provisions, it is necessary to identify two more key points, namely: who is the body executing this type of punishment, and what is the difference between the full powers of the traffic police inspector and the engineer-inspector of Gostechnadzor.

The Plenum of the Supreme Court of the Russian Federation, in its Decision of June 19, 2019, clearly defined that when imposing an administrative penalty in the form of deprivation of the right to drive vehicles (including as an additional administrative penalty), in the operative part of the decision on an administrative offense, the judge must specify a division (for example, a traffic police unit), in addition, oblige the person brought to administrative responsibility to hand over all relevant certificates available to him or declare their loss to the subdivision of the authorized body specified by the judge and explain the consequences of non-fulfillment of this obligation.

As a rule, the subdivision charged with the execution of the decision on the imposition of an administrative penalty in terms of deprivation of the right to drive vehicles should be indicated as a subdivision of the body whose official sent the case of an administrative offense to the judge for consideration.

At the same time, as practice shows, the absolute majority (99.9%) of administrative offense cases are initiated by traffic police inspectors. This is primarily due to the difference in the set of powers presented to the engineer-inspector of the State Technical Supervision authority and the inspector of the traffic police authority. The traffic police inspector, who is also an official of the internal affairs bodies (police), is provided with a legislative opportunity to apply measures to ensure proceedings in cases of administrative offenses:

1) delivery;

2) administrative detention;

3) personal inspection, inspection of things, inspection of a vehicle that is with an individual;

4) seizure of things and documents;

5) suspension from driving a vehicle of the appropriate type;

5.1) examination for the state of alcoholic intoxication;

6) medical examination for intoxication;

7) vehicle detention;

8) seizure of goods, vehicles and other things;

9) drive.

All of the above measures in one form or another are an integral part of bringing the perpetrators to administrative responsibility in the form of deprivation of the right to drive vehicles. However, the engineer-inspector is deprived of the possibility of applying all of the above measures. This issue requires more detailed consideration in the future and is not the subject of this study.

Thus, the engineer-inspector of Gostechnadzor finds himself in a position dependent on the traffic police inspector, since in order to comply with the legality and correct enforcement of the articles of the Administrative Code of the Russian Federation, he is obliged to receive information from the traffic police inspector about the court order that has entered into force. The court itself, in accordance with the above provisions of the Plenum, is not obliged to send its decisions to all bodies that previously granted the right to drive vehicles to the guilty person.

In practice, we get the following situation: a traffic police officer stopped a person in a state of alcoholic intoxication on a public road, this person had only a driver's license with him (it was seized on the spot). After carrying out all the necessary judicial procedures in relation to this person, a decision was made to bring to administrative responsibility under part 1 of Article 12.8 of the Administrative Code of the Russian Federation "Driving a vehicle by a driver who is intoxicated, if such actions do not contain a criminally punishable act." In the descriptive and operative part of the court order, attention was drawn to the presence of this person, in addition to the VU, also UTM. This resolution with a note on the entry into force was sent to the body executing this type of punishment, that is, the traffic police. Traffic police officers did not redirect a copy of the resolution to the State Technical Supervision authority. The term of deprivation of the special right was not interrupted. At the same time, the State Technical Supervision authority did not have any information about this situation at all. After the expiration of the term of deprivation of the guilty person, after passing a theoretical exam and a medical examination, receives the VU back and, according to the traffic police, is considered to have executed the punishment. However, from a legislative point of view, if a person has not submitted all the documents available to him, the term must be interrupted before the person fulfills his duties. There are also cases when, during the trial, the court does not establish at all that the perpetrators have any other documents confirming the right to drive vehicles.

The above situation, although abstract, at the same time comprehensively describes the practice that has developed in the interaction of traffic police and Gostechnadzor bodies.

Failure to receive complete and reliable information by the State Technical Supervision authority about all the circumstances of an administrative case can and does lead to the following situations:

1) a person who is repeatedly brought to responsibility for driving a vehicle in a state of intoxication has the opportunity to avoid and avoids bringing to criminal responsibility provided for in Article 264.1 of the Criminal Code of the Russian Federation ^[10];

2) a person who has been brought to responsibility and has a valid UTM often carries out work in various organizations where, for lack of other information, the employer or a person authorized by him:

 - accepts this person for a job, the mandatory qualification requirement for which is the presence of a valid UTM;

- carries out the daily admission of this person to driving a vehicle, while committing an administrative offense provided for in Article 12.32 of the Administrative Code of the Russian Federation.

Thus, gaps in legislation in this area, as well as the inattentive attitude of judges and employees of competent authorities to the requirements of current legislation on the calculation of terms of deprivation of a special right lead to even more violations and create a legal opportunity to avoid various types of punishment by guilty persons.

It should be noted that the subject of our study on the example of the interaction of traffic police and State Technical Supervision authorities has already been touched upon in 2017 by a scientific specialist ^[11].

Unfortunately, the ways he proposed to solve the problem were not taken into account by the legislator. In particular, they were offered:

1) oblige the traffic police authorities to inform the court about all the circumstances of the presence of additional certificates (including UTM) by entering relevant information into the case materials;

2) oblige the traffic police authorities to send copies of court decisions to the State Technical Supervision authorities, as well as interdepartmental requests, if necessary, to establish the fact that a person has UTM;

3) oblige the traffic police body, in case of interruption of the term of deprivation of a special right in relation to a person who evades the obligation to hand over a driver's license, to inform the Gostechnadzor body about it;

4) other measures aimed at improving the quality of interaction between the traffic police and Gostechnadzor bodies.

We also propose to pay attention to the practical experience of interaction of the State Technical Supervision Inspectorate of the Kursk region (hereinafter referred to as the inspection) with the territorial divisions of the traffic police of the Kursk region in the execution of decisions that have entered into force on the deprivation of a special right to drive vehicles.

To implement this interaction, the inspection has developed a set of measures, clothed in an internal order. According to this procedure, by prior agreement with the Office for Ensuring the Activities of Justices of the Peace of the Kursk region, the inspectorate necessarily receives from the justices of the Peace of the Kursk region all resolutions with a mark of entry into force.

After the inspection officials check whether the persons brought to responsibility have UTM , they prepare the following information letters , depending on the situation:

- to the territorial division of the traffic police with information about the failure of a person to fulfill his duty to deliver UTM;

- to the guilty person with a notification of the need to fulfill his obligation to surrender UTM;

- to the territorial division of the traffic police with information about the execution by the guilty person of his duty to deliver UTM.

Considering that over 90% of cases on bringing persons to administrative responsibility involving deprivation of the right to drive vehicles are considered by the magistrate's court, the situation regarding the lawful execution of punishment in the form of deprivation of the right to drive vehicles after the adoption of these measures by the inspection has acquired a favorable character.

Thus, the question of the proper execution of the penalty in the form of deprivation of the right to drive vehicles depends on the specific State Technical Supervision authority or the traffic police authority in the relevant subject of the Russian Federation, on the quality of their interaction.

The set of measures proposed by us, taken from the practice of the State Technical Supervision inspectorate of the Kursk region, can serve as an example of possible areas of activity of the traffic police and state technical supervision authorities of all subjects of the Russian Federation.