Problems of the Implementation of the Principle of Legality by Police Officers when Applying Measures to Ensure Proceedings in Cases of Administrative Offenses

Sidorov Eduard Tomovich PhD in Law Professor, Department of Administrative Law and Administrative Activities of the Police, Moscow University of the Ministry of Internal Affairs of Russia named after V.Ya. Kikot 143615, Russia, Moscow region, region, Ruzsky District, Staroteryaevo,, Mof Mosu Mia str., 1 Eduard-Sidorov1965@yandex.ru Other publications by this author

Measures to ensure the proceedings in cases of administrative offenses play an important role in the administrative and jurisdictional activities of the police. Departmental statistics show that when identifying administrative offenses that infringe on such objects of public relations as public order and public safety, in 70% of cases, administrative procedural measures provided for by Chapter 27 of the Code of Administrative Offenses of the Russian Federation (hereinafter - the Administrative Code of the Russian Federation) are applied.  Most often, the internal affairs bodies use delivery (Article 27.2 of the Administrative Code of the Russian Federation), administrative detention (Article 27.3 of the Administrative Code of the Russian Federation), personal search, inspection of things that are with an individual (Article 27.7), inspection of vehicles (Article 27.9 of the Administrative Code of the Russian Federation), seizure of things and documents (Article 27.10 of the Administrative Code of the Russian Federation).

The measures listed in Part 1 of Article 27.1 of the Administrative Code of the Russian Federation are applied "for the purpose of suppressing an administrative offense, establishing the identity of the violator, drawing up a protocol on an administrative offense if it is impossible to draw it up on the spot of detecting an administrative offense, ensuring timely and correct consideration of an administrative offense case ..." ^[1].

P. V. Meshkov in his works correctly notes such a feature inherent in these measures as "... the ability to quickly respond to emerging legal relations when committing administrative offenses" ^{[12, pp. 52-55]}.

Back in 1983, V. R. Kisin formulated such goals of their application as: "... the creation by force of conditions for establishing the fact of an offense and the identity of the offender, the detection, fixation and investigation of evidence necessary to establish objective truth in an administrative case, the creation of other conditions for the consideration of a case of an offense" ^{[10, p.26]}.

The ultimate goal of the application of measures to ensure the proceedings in cases of administrative offenses, according to A. Y. Sokolov, is: "... creating conditions for the most effective implementation of this type of administrative and jurisdictional proceedings" ^{[18, p.53]}.

At the same time, measures to ensure the proceedings in cases of administrative offenses can significantly restrict the rights and freedoms of citizens.

Thus, the Constitutional Court of Russia, considering the case on the complaint of a stateless person N.G. Mskhiladze, called such security measures as: "delivery, administrative detention, drive, placement of a foreign citizen or a stateless person subject to administrative expulsion from Russia in the form of forced expulsion from Russia to a special institution by coercive measures restrictions on freedom" ^[5].

The Supreme Court of Russia adheres to the same position, pointing out that, in particular, the use of such a measure as delivery should be applied "only in exceptional cases if it is impossible to achieve the above goals without the use of these measures" ^[6]. At the same time, unfavorable weather conditions, the absence of protocol forms from an official, according to the Supreme Court of Russia, cannot serve as a basis for the legality of the application of this measure.

That is why, in order to ensure the principle of legality when carrying out most of the measures under consideration, the legislator imposes such a requirement during their implementation as the participation of witnesses. Since 2014, the current legislation provides for video filming of procedural actions (except for personal inspection) instead of the participation of witnesses.

All this testifies to the importance of the correct interpretation and application of legislation regulating the grounds and procedural procedure for the implementation of these measures in the law enforcement activities of the police. Therefore, it is not by chance that Article 1.6 of the Administrative Code of the Russian Federation explicitly establishes the requirement to ensure legality when applying administrative coercion measures in connection with an administrative offense. This requirement is formulated in the form of a principle, i.e. a fundamental (basic) provision in the implementation of this type of activity. Legality in the broadest sense of the word can be understood as a regime of strict and accurate implementation of legal regulations by all participants involved in public relations regulated by the norms of law.

According to G.V. Minkh, "legality is a requirement of strict and unswerving adherence to legal regulations, regardless of the attitude to them" ^{[13, p. 11]}.

A similar position is held by V.M. Shamarov, H.H. Loit and A.V. Nikiforov, who speak of the content of legality as "the exact and steady execution of laws and regulations by all state bodies, public organizations, officials and citizens" ^{[19, p.7]}.

In our opinion, the most accurate and concise definition at the time was formulated by A. P. Korenev, who wrote that "the principles of legality are the fundamental ideas expressing the content of legality, and the requirement is what legality requires, i.e. legal regulations, compliance and execution of which in management makes the latter legitimate" ^{[11, p.242]}.

At the same time, as correctly noted in the work of E.K. Cherkasova and R.R. Sabitov, "collisions and other defects of regulatory legal acts regulating the procedural order and execution of these measures, as well as the lack of a common understanding of the grounds, goals and conditions for the application of certain coercive measures lead to violations of current legislation, citizens' rights, and tactical errors employees of the internal affairs bodies" ^{[20, p.4]}.

Thus, in our opinion, the implementation of legality by a police officer when carrying out measures to ensure proceedings in cases of administrative offenses is carried out through compliance with and compliance with the requirements established by law. To achieve this important goal, the current legislation should establish in detail, consistently and unambiguously the requirements for the behavior of an official using administrative coercion, as well as a mechanism for monitoring the implementation of the adopted rules. The official, in turn, requires knowledge of the legislation, its correct interpretation and execution. Unfortunately, none of the described elements of the system of legality, at present, can not present a rosy picture. The main reason for the problems that arise when a police officer observes the rule of law when applying measures to ensure proceedings in cases of administrative offenses is, in our opinion, in the details.

In this article, the author attempts to formulate a number of problems that occur in administrative legislation and require solutions to strengthen the rule of law in the activities of law enforcement officers.

To implement this principle, it is necessary to comply with both material norms and procedural ones, which means the use of administrative procedural measures only if there are legitimate grounds and purposes for their application and compliance with the procedure.

So, for example, when conducting a vehicle inspection, the offer of a police officer to a citizen to get out of the inspected car, provided for in paragraph 93.1 of the Administrative Regulations, can only be of a recommendatory nature. Therefore, the refusal of the driver or passenger to leave the car is not an administrative offense under Part 1 of Article 19.3 of the Administrative Code of the Russian Federation. This is directly indicated by the Supreme Court of the Russian Federation ^[7].

On the other hand, failure to achieve the goal of applying a measure of administrative procedural support cannot necessarily mean the illegality of the actions of a police officer who applied this measure and significantly restricted the freedom of a citizen. Thus, the purpose of administrative detention is to draw up a protocol on an administrative offense by an official of the internal affairs body. If at the same time it is not drawn up, for example, due to the absence of an event of an administrative offense, can administrative detention be considered illegal? This issue was the subject of consideration by the Constitutional Court of the Russian Federation.

The Constitutional Court of the Russian Federation, in its Resolution No. 9-P of June 16, 2009, stated that "the legality of detention does not imply that a competent official should already have evidence sufficient to resolve the case on the merits at the time of detention" ^[4]. But at the same time, the Constitutional Court of Russia pointed to compliance with the material and procedural norms established by law. That is, administrative detention can be applied to a person brought to administrative responsibility only for the purposes provided for by administrative legislation, which are contained in Part 1 of Article 27.3 of the Administrative Code of the Russian Federation, the period of detention must not be exceeded and the necessary procedural documents must be drawn up, regardless of whether the event and the composition of the administrative offense will be established.

I would also like to draw attention to the following important point. In law enforcement activities, police officials face situations when a detained person is taken to the duty station of the territorial body of the Ministry of Internal Affairs of Russia, but is not placed in a room specially designated for administratively detained persons, as required by Article 27.6 of the Administrative Code of the Russian Federation. For how long can a person stay in the office of the internal affairs bodies without being, strictly speaking, detained? In the light of the explanations provided by the Constitutional Court of Russia dated 17.11.2016 No. 25-P "In the case of checking the constitutionality of Part 4 of Article 27.5 of the Administrative Code of the Russian Federation in connection with the complaint of citizen E.S. Sizikov" and the subsequent revision of Part 4 of Article 27.5 of the Administrative Code of the Russian Federation by Federal Law No. 456-FZ dated 29.12.2017, the period of stay of a person should not exceed, contained in Article 27.5 of the Administrative Code of the Russian Federation.

The implementation of the principle of legality by a police official applying the coercive measures in question also implies compliance with the requirement of publicity. The requirement of publicity is implemented by ensuring free access of citizens and representatives of the mass media to the results of the management activities of the internal affairs bodies, including law enforcement.

At the same time, these actions should not disclose state, military, commercial secrets protected by law, the secret of the private life of participants in proceedings on administrative offenses. During the open consideration of the case, the participants in the proceedings and the persons present have the right to independently decide on the written recording or audio recording of the progress of the case. As for video recording or broadcasting to the Internet, these actions may be prohibited by an official considering an administrative offense case on the basis of Part 3 of Article 24.3 of the Administrative Code of the Russian Federation.

         Measures to ensure the proceedings in the case of administrative offenses are applied in accordance with Part 1 of Article 27.1 of the Administrative Code of the Russian Federation to bring the guilty person to administrative responsibility, and the basis for their conduct is the presence of the composition of an administrative offense. At the same time, a number of experts believe that the authorized official should already have information at this stage about the absence of circumstances precluding the proceedings.

In our opinion, this statement is controversial for the following reasons. When drawing up a protocol on the implementation of security measures in cases of administrative offenses, which is mandatory, an official initiates administrative proceedings (paragraph 2 of Part 4 of Article 28.1 of the Administrative Code of the Russian Federation). At this point, the police officer may not be aware of the existence of circumstances precluding the proceedings. Moreover, if a police officer knows such circumstances in advance, he, in accordance with the current legislation, does not have the right to apply administrative procedural measures at all. The only exception is the application of measures when an administrative offense is detected related to the management of a vehicle by a person who has not reached the age of administrative responsibility (Part 3 of Article 24.5 of the Administrative Code of the Russian Federation). In this particular situation, the law obliges a police officer to carry out the necessary security measures, for example, to remove him from driving a vehicle, to detain a vehicle, and after that to make a decision on the termination of proceedings on an administrative offense.

         At the same time, it should be noted that in the practical activities of the internal affairs bodies, such situations when it is necessary to apply measures to ensure the proceedings in cases of administrative offenses against a person who has not yet turned 16 years old at that time are found everywhere and they have to be solved virtually outside the right field. As an example, the following can be given.

Thus, when bringing legal representatives to administrative responsibility for committing an administrative offense under Article 20.22 of the Administrative Code of the Russian Federation, it is necessary to establish the fact that a minor (under 16 years old) is intoxicated. Since this circumstance is included in the subject of proving an administrative offense in this composition, the Court of the Chukotka Autonomous Okrug requested an act of medical examination for intoxication in order to establish the presence of a minor in a state of intoxication (the Decision of the Court of the Chukotka Autonomous Okrug of 26.03.2019 in case No. 7-11/2019).

Thus, by drawing up a protocol on the referral for a medical examination of a minor who has not turned 16, a police officer initiates proceedings against a person who, due to his age, is not a subject of administrative responsibility.

A similar legal situation arises when a minor who was 14 years old at the time of committing an illegal act, has not yet reached the age of 16, has committed, for example, an offense under Article 7.27 of the Administrative Code of the Russian Federation "Petty Theft". The teenager took out the goods from the store's trading floor, causing damage in the amount of up to 2500 rubles. Arrived police officers apply to the teenager such security measures as personal search, seizure of things and delivery to the duty station of the territorial body of internal affairs with the preparation of appropriate protocols. Thus, proceedings are initiated in the case of an administrative offense.

In this situation, events will develop according to one of two scenarios.

In the first case, the case will be terminated (as a rule, without drawing up a protocol on the application of a security measure and a resolution on the termination of proceedings in an administrative offense case).

The second scenario will take place if the actions of the teenager will be considered a crime under Article 158 of the Criminal Code of the Russian Federation. In this case, the procedural grounds for resolving the issue of initiating a criminal case will be the protocols drawn up on the application of these administrative and procedural measures (the protocol of personal inspection, the protocol of seizure of things). And then a situation may arise, which is described by V.S. Balakshin in his works. He correctly notes that "the problem of using materials obtained in the framework of the administrative process in criminal procedural evidence remains unresolved. On the other hand, the administrative materials themselves are not perfect, since the Code of Administrative Offences of the Russian Federation does not provide for the application of measures provided for in Chapter 27 of the Administrative Code of the Russian Federation in this case" ^{[8, pp.91-101]}.

The consequence of this may be the exclusion from the criminal case and the evidentiary process of all materials obtained during administrative procedural actions, which will lead to the loss of basic evidence and deprive the case of judicial prospects. As a result, we see a problem that requires resolution not only within the framework of administrative procedural legislation, but also affecting criminal procedural legal relations.

P.N. Smolyakov, who also studied such categories of cases, correctly states that in these cases "in complaints filed against sentences and other acts already in criminal proceedings, arguments are given about the violation of the Administrative Code of the Russian Federation ..." ^[17].

         All this testifies to the legal regulation of these situations and the need to change the wording of the legal norm contained in Part 3 of Article 24.5 of the Administrative Code of the Russian Federation. It should regulate more broadly the situations arising in law enforcement practice that arise with the participation of persons who have not reached the age of administrative responsibility.

         The second problem that I would like to draw attention to is the following. A. Y. Sokolov in 2012 in his works noted that the list of measures to ensure the proceedings in cases of administrative offenses listed in Article 27.1 of the Administrative Code of the Russian Federation is exhaustive. This position seems to us to be correct. It is the Administrative Code of the Russian Federation that contains both material and procedural norms that determine not only the goals and grounds for the application of these measures, but also the procedural procedure for their implementation. This is the only way to ensure the legality of the applied measures of this type of administrative and legal coercion. Unfortunately, modern state policy in the field of administrative delictology has gone the other way. This is expressed in the following.

Firstly, the norms contained in regulatory legal acts and regulating the types of administrative and procedural measures, the list of which is contained in Part 1 of Article 27.1 of the Administrative Code of the Russian Federation, are heterogeneous. As N.A. Dudina notes, "to date, Russian legislation contains more than 15 types of various kinds of inspection measures of an individual and things that are with him" ^{[9, pp. 41-44]}. These types of inspection measures are established in various regulatory legal acts. At the same time, the procedural rules themselves governing the procedure for conducting a personal search do not differ in particular specifics. For example, from the legal norms contained in Article 27.7 of the Administrative Code of the Russian Federation, it is unclear whether the official conducting this event has the right to examine the body of the person being examined or whether the examination of only clothes is the limits of his authority. Hence the ambiguity of experts' opinions. So some of them believe that the examination of the body of the examined person should take place in the presence of a medical professional.

The wording of such a requirement as "constructive integrity" is rather vague. For example, when examining the clothes of the inspected person, is it possible to cut the gasket if there is a suspicion that there are, for example, narcotic substances under it? Will such actions of an official go beyond his powers?

It is clear that this does not contribute to strengthening the rule of law, because there are no legal norms in the legislation that would contain universal rules for their implementation and documentation. At the same time, often, the low legal literacy of individual police officers only aggravates the situation.

Secondly, measures have been introduced to ensure the production of cases of administrative offenses not in the Administrative Code of the Russian Federation, but in other legislative acts that do not contain procedural norms that should regulate the procedure for such measures. An example is the autopsy of a vehicle.

Thus, Federal Law No. 424-FZ of 12/21/2021, which amended Federal Law No. 3-FZ "On Police" in Article 15.1, established a new measure of administrative and legal coercion in the form of "vehicle autopsy" ^[3]. The law does not disclose the content of this measure of administrative and legal coercion, which allows its various interpretations, both by scientists and law enforcement officers. A police officer has the right to use the autopsy of a vehicle on the basis of paragraph 5, part 1 of Article 15.5 of the Federal Law "On Police" "... if there are grounds to believe that the person who committed this offense is intoxicated." The purpose is "... for the application of measures to ensure the proceedings in the case of an administrative offense," for example, for subsequent removal from management and examination for alcohol intoxication. At the same time, legitimate questions arise. Is the autopsy a measure to ensure the proceedings in the case of an administrative offense? What is the procedural order of its conduct? Is the participation of witnesses required if in subsequent actions – suspension from driving a vehicle, examination for alcohol intoxication, referral for a medical examination for intoxication, their presence is directly established by law.

A number of experts express the position that the autopsy of a vehicle is a new form of vehicle inspection, which, in our opinion, is quite controversial ^[16].

In our opinion, the opening of a vehicle cannot be one of the forms of inspection due to the fact that one of the requirements imposed in Part 1 of Article 27.9 of the Administrative Code of the Russian Federation for the inspection of a vehicle is the inadmissibility of violating the structural integrity of the vehicle. In our opinion, this requirement is not consistent with the very concept of "autopsy". So, according to the explanations contained in the explanatory dictionary of the Russian language, the concept of "open" means to open, breaking, tearing, disconnecting something ^{[14, p.445]}.

In addition, the inspection of the vehicle requires the participation of witnesses (Part 1 of Article 27.9 of the Administrative Code of the Russian Federation). While the legal norms governing the autopsy of a vehicle do not provide for such a procedure.

A number of measures to ensure the proceedings in cases of administrative offenses are introduced into law enforcement practice on the basis of subordinate regulatory legal acts, which directly contradicts the legal norm contained in Part 1 of Article 1.6 of the Administrative Code of the Russian Federation, according to which "A person brought to administrative responsibility cannot be subjected to administrative punishment and measures to ensure the proceedings in the case of an administrative offense otherwise than on the grounds and in accordance with the procedure established by law" ^[1].

We are talking about such a measure as the prohibition of the operation of a vehicle, which is contained in paragraph 258 of the Administrative Regulations of the Ministry of Internal Affairs of the Russian Federation of the state function for the implementation of federal state supervision over compliance by road users with the requirements of the legislation of the Russian Federation in the field of road safety, approved by Order of the Ministry of Internal Affairs of Russia No. 664 of 23.08.2017. Article 19 of Federal Law No. 196-FZ of 10.12.1995 "On Road Safety" provides for such a measure, but in our opinion this only indicates the shortcomings of legal technology in this legislative act ^[2]. This measure was excluded from the Administrative Code of the Russian Federation in 2014 and its introduction by a subordinate regulatory legal act directly contradicts this federal law.

By the way, the traffic police officers do not apply this measure in practice, and when the grounds provided for in paragraph 258 occur, they detain the vehicle.

All this indicates that the concept of administrative and legal coercion in the field of measures to ensure proceedings in cases of administrative offenses requires significant revision and reflection. In the currently proposed draft Procedural Code of the Russian Federation on Administrative Offenses prepared by the Ministry of Justice of the Russian Federation (PCoAP RF) (Project ID 02/04/01-20/00099061) the measures under consideration are included in Chapter 4 "Application of measures to ensure proceedings in cases of administrative offenses". Unfortunately, a number of legal norms that are the subject of research in this article and require changes have successfully migrated to the draft of the RF Administrative Code, even one that provides for the use of film recordings. At the same time, even changes in legislation, as practice shows, do not guarantee their correct interpretation and application. In order to strengthen the rule of law in the application of measures to ensure the production of administrative offenses, in our opinion, it is necessary to develop administrative procedures, which should contain an algorithm of actions of an official applying a specific type of administrative coercion measure. At the same time, these procedural actions should be mandatory, for which they should be established by regulatory legal acts.

As a result of the conducted research, the following conclusions were formulated.

1. Measures to ensure the proceedings in cases of administrative offenses, which are used by the internal affairs bodies in the implementation of administrative and jurisdictional activities, significantly restrict the rights and freedoms of citizens.

2. Police officers exercising their powers of authority may apply them only on the basis of the Code of Administrative Offences of the Russian Federation, which contains both administrative-legal and administrative-procedural norms.

3. Other laws and by-laws should not contain measures of administrative and procedural support that are not regulated by the Administrative Code of the Russian Federation.

4. The law enforcement practice of the internal affairs bodies in the field of bringing citizens to administrative responsibility shows the need to develop administrative procedures for the application of measures to ensure proceedings in cases of administrative offenses.

5. These administrative procedures (the procedure for conducting a personal search, the procedure for conducting a vehicle inspection, etc.) should be fixed in regulatory legal acts and regulate in detail the procedure for their conduct.