Legal Regulation of Personal Search, Seizure of Things and Documents as 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

Administrative enforcement measures are quite diverse, and the system of these measures has means of various functionality and various restrictive potential. The legislation contains preventive measures, preventive measures, a special place among the measures of administrative and legal impact is occupied by measures of procedural coercion, in the Administrative Code of the Russian Federation they are called "measures to ensure proceedings in cases of administrative offenses" (Article 27.1).

These measures are also very diverse, their application restricts the personal and property rights of those persons to whom they are applied. Measures of administrative and procedural coercion are aimed at suppressing offenses, collecting relevant evidence, in addition, they make it possible to increase the effectiveness of the execution of decisions in cases of administrative offenses. One of the measures of administrative coercion of a procedural nature aimed at obtaining appropriate evidence is a personal search, an inspection of things that are with an individual. Such procedural measures as the seizure of things and documents are closely related to this impact, this is due to the fact that personal inspection, inspection of things are carried out not only for a preventive purpose, but also in order to detect and seize material evidence, that is, objects or instruments of committing an administrative offense.

Taking into account the important evidentiary essence of personal inspection, inspection of things that are with an individual, as well as the seizure of things and documents that were or are tools or objects of an administrative offense, let's consider some problems of implementing the indicated procedural measures.

As already noted, one of the measures of administrative and procedural coercion is a personal search, based on this, let's pay attention to what is said about this event in the legislation. But at the same time, we note that, as indicated in the doctrine, "... to date, Russian legislation contains more than 15 types of various kinds of inspection activities of an individual and things that are with him" ^[1].

The Customs Code of the Eurasian Economic Union (as amended on 05/29/2019) defines that "... personal customs inspection is a form of customs control consisting in conducting an inspection of individuals. Personal customs inspection may be carried out only in relation to individuals, if there are sufficient grounds to believe that such persons conceal and voluntarily do not issue goods transported across the customs border" (Article 329). In this case, personal inspection is aimed at identifying the fact of illegal export of things, the export of which is prohibited or restricted from the country.

The Air Code of the Russian Federation of March 19, 1997 defines that "... in order to ensure the safety of passengers and crew members, passengers, baggage, and hand luggage are subject to mandatory pre-flight inspection, as well as post-flight inspection if it is carried out. Post-flight inspection is carried out upon receipt of information about the threat of committing an act of unlawful interference in order to identify individuals whose actions show signs of preparation for committing acts of unlawful interference in aviation activities" (Article 85).

It should be pointed out that pre-flight inspection is mandatory.  As defined in the Air Code of the Russian Federation, "... if an aircraft passenger refuses pre-flight inspection, the passenger's air transportation contract is considered terminated." The procedure for pre-flight and post-flight inspection is defined by Order No. 104 of the Ministry of Transport of the Russian Federation dated July 25, 2007 "On Approval of the Rules for Conducting Pre-flight and Post-flight inspections", this order systematically regulates the designated inspection measures. In this regard, it would be correct to adopt such an order in the development of Article 27.7 of the Administrative Code of the Russian Federation, in which to fix the Rules for conducting a personal search aimed at obtaining evidence in the case of an administrative offense, and the procedure for the seizure of tools and objects as physical evidence.

The Federal Law of April 26, 2013 "On the procedure for serving administrative arrest" tells us about preventive inspection as an administrative measure. Thus, "...personal search is carried out in relation to persons subjected to administrative arrest, and their belongings are also searched" (Article 6).

From the above instructions, it can be concluded that the personal inspection of passengers and hand luggage, as well as other types of inspection, are precautionary in nature. However, the preventive nature of inspections can be translated into a procedural nature, such an opportunity exists when tools and means of committing crimes or administrative offenses are identified during their implementation.

Personal search, as well as the inspection of things that are with an individual, is often carried out by police officers, in this regard, it is no coincidence that special attention is paid to the relevant event in the field of internal affairs. Thus, the Federal Law of February 7, 2011 "On the Police" stipulates that "... according to the legislation on administrative offenses, police officers have the right to carry out personal searches of citizens, to inspect their belongings if there are grounds to believe that these citizens have prohibited items with them, as well as conceal objects of theft" (Article 13).  It should be noted that a personal search must be carried out by a police officer before he begins to deliver a person "suspected" of committing an administrative offense. This is necessary, first of all, to ensure his personal safety, as well as to preserve possible material evidence that may be lost during such delivery.

Personal search is a measure of administrative and procedural influence that makes it possible to invade the sphere of personal rights of the inspected person. As noted by A.V. Myagkov, "...personal inspection refers to a group of measures that contain restrictions on personal non-property rights, unlike other types of inspection (inspection) that relate to issues of property restrictions" ^[2].

Given the diverse nature of the personal search, we note once again that it is necessary to distinguish between a personal search as a preventive measure and a personal search as a procedural action aimed at obtaining evidence. Certain requirements are imposed on the procedural inspection, which are fixed in Articles 26.2; 27.7 of the Administrative Code of the Russian Federation. The procedural requirements for personal inspection and other administrative and procedural measures are quite strict.

Thus, the Administrative Code of the Russian Federation stipulates that "... a personal search is carried out by a person of the same sex with the person being examined, as well as in the presence of two witnesses, who must also be of the same sex with the person being examined. Personal search is carried out in an isolated room, in order to detect tools or objects of an administrative offense" (Article 27.6).

Personal search is a rather delicate measure of administrative and procedural coercion, and therefore, when it is carried out, it is very important to prevent situations that may somehow humiliate the human dignity of the person being examined. On this issue, O. Anganzorov correctly points out that "... when carrying out a personal search, its limits must be determined, excluding humiliation of the dignity of the individual and unlawful harm to the health of the inspected person" ^[3].

As A.Y. Sokolov noted, "...a personal search is an external examination of the body of an individual, as well as clothes, shoes, headdress, and other things with him in order to detect instruments of commission or objects of an administrative offense" ^[4].

A body search is, in fact, a search. Such procedural actions as: "inspection" and "search" are essentially the same, however, unlike a search, personal inspection is regulated by the norms of administrative law.

Thus, a personal search is a measure of administrative and procedural coercion, consisting in a search of a person, inspection of his clothes and contents therein, as well as things with him, in order to seize tools, funds, and documents that will be material evidence in the case of an administrative offense.

Personal inspection, inspection of things that are with an individual, inspection of a vehicle is carried out when it is not known exactly where the instruments of commission or objects of an administrative offense are located, as well as documents that have the value of evidence in the case of an administrative offense.

In matters of the implementation of administrative and procedural enforcement measures, it is very important to understand the grounds for their application. As N.A. Dudina correctly noted, "... the need for a personal search must be confirmed by a preliminary assessment of the presence (absence) both the legal and the actual basis for its conduct, so that the inspected person is provided with the opportunity to verify the legality and validity of the relevant actions" ^[5].

The Administrative Code of the Russian Federation does not establish universal, standard grounds for the application of procedural coercive measures, however, an analysis of the doctrine and practice of applying administrative procedural coercive measures makes it possible to identify a number of grounds for the use of personal search and inspection of things that are with an individual.

Thus, a personal search is possible when technical means of control are indicated, when a person is caught at the time of committing an administrative offense or immediately after that, when there will be testimony from witnesses of an administrative offense committed by the relevant person, when the person "suspected" of committing an administrative offense refuses to show the things hidden by him. Since the officials who carry out the delivery and administrative detention have the right to carry out personal inspection and inspection of things, the basis for the inspection is the application of the indicated measures of administrative coercion.  Please note that according to the order of the Ministry of Internal Affairs of Russia dated August 23, 2017, "... before sending a detained person to a special room, an officer on duty authorized to carry out administrative detention organizes (conducts) a personal search and inspection of the detained person's belongings" (paragraph 188).

Taking into account the specific features of personal search as a measure of administrative procedural coercion aimed at obtaining evidence in an administrative offense case, it is necessary to take a more detailed approach to regulating a number of problematic issues related to the application of this measure of administrative procedural influence.

V.R. Kisin, speaking about such a procedural action as a personal search, noted that "... the regulation of its conduct does not contain an answer to the question of what actions are permissible during a personal search (examination of a person's clothes, partial or complete undressing, examination of the body, etc.)" ^[6].

Having analyzed the available positions regarding personal inspection, the designated author says that "personal inspection is limited only to the examination of things worn by an individual." A fairly sound and restrained approach, which in most cases makes it possible to achieve the goal of personal inspection, as well as not to humiliate the personal dignity of the inspected person.

Please note that O. Anganzorov correctly notes that the legislation does not answer a number of questions "... what is meant by personal inspection. It is unclear what actions are allowed during the inspection (visual surface inspection of a citizen, with the removal of outerwear or not), how the contents of the pockets of clothing are checked (either the citizen is invited to give out the contents of the pockets, or the inspector does it himself, if so, in which cases). The possibility of using technical means during a personal inspection is not specified. The actions of an official in the event of a citizen's refusal to undergo a personal search and the possibility of conducting a forced personal search in this case are not regulated" ^[7].

The designated author points out a number of legal and organizational problems related to the implementation of personal inspection, in particular, indicates that the law does not specify the possibility of using technical means during personal inspection. Please note that a number of procedural issues of personal inspection in the Administrative Code have been resolved.  As A.N. Guev noted, "... personal inspection, inspection of things that are with an individual, is an examination (including by examining, feeling, X-ray, infrared rays, using special equipment) of things in clothing pockets, in handbags, in travel suitcases or briefcases" ^[8].

It should be noted that the use of technical means of inspection often occurs in a contactless form. And this procedure of personal inspection does not detract from the rights of the inspected person. However, in order to exclude any issues, abuses, it would be correct to determine in the Administrative Code of the Russian Federation that during personal inspection it is possible to use technical (digital) means in order to detect and record evidence in an administrative offense case, an entry should be made in the personal inspection protocol on the use of appropriate technical means.

It should be noted that during the personal inspection, photography and filming (videography) can be used, this makes it possible to preserve the true picture of the administrative procedural action being carried out, to ensure guarantees of legality during its conduct, as well as to record the presence of prohibited objects, substances, tools and means of committing an administrative offense with the inspected person. This is especially important when carrying out the seizure of relevant items. As follows from the Administrative Code of the Russian Federation "... in the protocol on personal inspection, inspection of things that are with an individual, an entry is made on the use of photography and filming, other established methods of fixing physical evidence" (art.27.7). It is very important to keep the photos taken, or the record of a personal search, and in no case allow them to be lost or distributed. In this connection, the Administrative Code of the Russian Federation should specify that this information is confidential information, the loss or dissemination of which is unacceptable.

As already noted, a personal search can be considered as a procedural measure aimed at obtaining evidence in the case of an administrative offense, and as a measure that needs to be carried out during delivery and administrative detention. It is quite obvious that a personal search is carried out by persons who carry out delivery and administrative detention (Articles 27.2, Article 27.3 of the Administrative Code of the Russian Federation). It is tactically true that an employee will carry out a personal search of the relevant person before delivering or placing a person in an official car, this is necessary to ensure personal safety, as well as to identify material evidence. A personal search must also be carried out when a person is placed in a place where detainees are being held. In this case, a personal search can perform not only a procedural, but also a preventive function.

In case of refusal of a citizen from a personal search, there should be a normatively defined possibility for conducting a compulsory personal search of both clothes and the contents of pockets, headgear, shoes. In this regard, the Administrative Code of the Russian Federation needs to determine that during a personal search, it is possible to use physical force to the extent and form necessary to carry out the appropriate procedural action. The situation of voluntary surrender of the instrument of commission or the subject of an administrative offense should also be recorded in the protocol of seizure of these items or documents. It is important to record this, since the relevant fact can later be regarded as a circumstance mitigating administrative responsibility.

An appropriate protocol is drawn up on conducting a personal inspection, a copy of the protocol on personal inspection, inspection of items with an individual, is handed to the owner of the items subjected to inspection, at his request (Article 27.7).

It seems that a copy of the protocol on personal inspection, inspection of things that were in the possession of the inspected person, must be handed to him without fail. This is due to the observance of guarantees of the rights of a previously inspected person, as well as the fact that it will be impossible to make any additions or changes to this protocol "retroactively".

Personal inspection is carried out by persons of the same sex with the inspected person, in the presence of two witnesses of the same sex, personal inspection must take place in an isolated room, excluding access to this room by unauthorized persons. Practice shows that it is not always possible to conduct a personal search in an isolated room, and in this case, a personal search can be carried out on the street or another place. The possibility of conducting a personal search outside the office and other isolated premises should be regulated in the Administrative Code of the Russian Federation. It should be noted that personal inspection with the removal of clothes and shoes outside the office or other premises, and even more so in severe frost and other adverse weather conditions is not allowed.  This threatens the health of the examined person, humiliates his human dignity.

A few words should be said about the rights of a person in relation to whom a personal search is carried out, or the inspection of his belongings, this aspect is not particularly paid attention to in Article 27.7 of the Administrative Code of the Russian Federation. As it seems to us, a person in respect of whom such a procedural measure is carried out as: personal search, inspection of things that are with him, or inspection of his vehicle is carried out, must enjoy the rights of a person in respect of whom proceedings are being conducted on an administrative offense (Article 25.1 of the Administrative Code of the Russian Federation). As A.B. Dudaev noted, "... the legality of procedural actions affecting the rights of citizens, such as personal search and inspection of things, seizure of things and documents, presupposes respect for the rights of the inspected person from whom things are seized. These rights are derived from the rights of the person brought to administrative responsibility" ^[9].

Before such a procedural measure as "personal inspection, inspection of things that are with an individual", a specific goal is often set, to find a specific tool, the subject of an administrative offense or a document. The need for a personal search takes place when a person "suspected" of committing an administrative offense tries to hide an object or thing on himself, in his clothes, refuses to give it to a police officer, for example, or otherwise prevents its seizure. As V.R. Kisin correctly noted, "... the basis for personal inspection and inspection of things that are with a citizen is data that allows us to believe that a person is hiding objects obtained illegally" ^[10].

The designated author also draws attention to a certain ethics of personal inspection, so "... an official conducting a personal inspection should not focus on things, property that are not relevant to the case. It is not permissible to focus on things or correspondence of an intimate nature, and also negligent attitude to the property of the inspected person is not allowed."

All these requirements are relevant at the present time, this is especially important when the inspected person has expensive things with him, and personal and other important information is in mobile devices. Therefore, during a personal search, it is necessary to comply with the requirements of a procedural and ethical nature to the same extent.

Another aspect that should be paid attention to is the question of the timing of the personal search. This issue is not defined in any way. It should be noted that the term of this procedural action in each case may be different, it all depends on the specific situation in which the personal inspection activities take place. Given this, it should be noted that it would be quite advisable to determine that a personal search, especially if it is carried out outside the office and other premises, should be carried out as soon as possible.

Personal search as an event of a procedural nature is aimed at obtaining evidence, based on this, it is associated with the seizure of things that were instruments of commission or objects of an administrative offense, and documents that have the value of evidence in the case of an administrative offense. Personal inspection is carried out with witnesses who must be of the same sex as the person being examined, in exceptional cases, the inspection can be carried out without witnesses, which cannot be said about such a procedural event as: "seizure of things and documents", this event is carried out in the presence of two witnesses or with the use of video recording (Article 27.10 of the Administrative Code of the Russian Federation). As follows from the "Review of judicial practice of the Supreme Court of the Russian Federation" dated December 21, 2022, "... the seizure of things (documents) without understandable or video recordings is illegal even if their photo fixation is carried out."

Please note that witnesses of the same sex as the person being examined are needed only during personal inspection. When inspecting things, inspecting a vehicle, inspecting premises belonging to a legal entity, territories, things and documents located there, people of the same sex as the owner (owner) of this property, respectively, are not needed.

The seizure of things that were instruments of commission or objects of an administrative offense is necessary not only to obtain the necessary evidence in the case of an administrative offense, but also to execute the appropriate administrative punishment (art. 3.7 of the Administrative Code of the Russian Federation). For example, state awards and award badges may be withdrawn from a person who does not have the right to wear them (Article 17.11); uniforms with insignia from a person who does not have the right to wear them (17.12) are also subject to seizure. Documents that are forged or have signs of forgery, for example, are subject to seizure forged documents provided by a foreign citizen for his migration registration are subject to (Article 19.27), with such withdrawal of documents, witnesses are not needed.

The seized property is material evidence of the fact of the commission of the relevant administrative offense. The seized items must be treated carefully, they must be described in detail in the personal inspection protocol, packed, and in the future these items may be seized. As A.N. Guev noted, "... during personal and other inspection, actions aimed at changing the constructive integrity of a thing are unacceptable" ^[11].

 Some time ago, for committing administrative offenses in the field of traffic, for which the application of such administrative punishment as deprivation of the right to drive a vehicle was envisaged, an employee of the highway patrol service could withdraw a driver's license and issue a temporary certificate. This exemption was aimed at improving the effectiveness of the execution of the decision on the deprivation of the right to drive a car or motorcycle. However, such a measure of procedural influence as the withdrawal of a driver's license has been abandoned in the recent past. In the doctrine, taking into account the analysis of practice, it is proposed to return this measure of administrative procedural support. Thus, M.P. Marina proposes "a return to the practice of withdrawing driver's licenses with the issuance of temporary permits, issuing them both to the MREO of the traffic police and to the MFC" ^[12].

As stipulated in the Administrative Code of the Russian Federation "... a protocol is drawn up on the seizure of things and documents, or a corresponding entry is made in the protocol on delivery, in the protocol on inspection of the place of commission of an administrative offense or in the protocol on administrative detention" (Article 27.10). It should be noted that it is not necessary to "bureaucratize" proceedings in cases of administrative offenses, unreasonably saturate its various protocols. Legally relevant information should be concentrated as fully as possible in the "main" procedural documents. So, S.I. Chushkin, correctly writes that it is not necessary to draw up two protocols "inspection protocol" and "withdrawal protocol". Based on this, the designated author proposes to draw up one protocol that will combine data on the conducted personal search and data on the things and documents seized during this process ^[13].

Note that if the instrument of commission or the subject of an administrative offense is found at the place where the administrative offense occurred, then this should be noted in the protocol of inspection of the relevant place.  It should also be pointed out that if during the personal search or inspection of things that are with an individual, nothing was seized (no instruments of commission or objects of an administrative offense were found), then an appropriate entry should be made in the personal search protocol or the protocol on administrative detention.

In conclusion, we note that the seizure of tools and objects of an administrative offense often cannot be legally separated from such an event as a personal search. Of course, not every personal inspection involves the seizure of relevant items. But at the same time, it must also be said that the seizure of things and documents can take place without personal inspection, in particular, such seizure may be during the inspection of the place of commission of an administrative offense, or the inspection of a vehicle.