Legal grounds for the use of improvised means in the activities of police patrol officers

Koynov Maxim Yurevich Senior Lecturer at the Department of Public Order Protection of Tyumen Institute for Internal Affairs Officers Professional Training 625049, Russia, Tyumen region, Tyumen, Amurskaya str., 75 koynovmax@mail.ru Other publications by this author

Golubev Igor' Viktorovich Lecturer, Department of Organization of Public Order Protection, Tyumen Institute of Advanced Training of Employees of the Ministry of Internal Affairs of Russia 625049, Russia, Tyumen region, Tyumen, Amurskaya str., 75 golybev.igor72@gmail.com

The activities of the police, especially its combatant units (such as, for example, the patrol and post service of the police), are inextricably linked with the use of State coercion measures in the form of the use of physical force, special means and firearms. In this case, we should agree with V.V. Rudenko's opinion that the need for such an application arises from the specifics of the functions performed by this state structure: on the one hand, the life and safety of officials of internal affairs bodies and other persons are often under threat, on the other hand, in the process of maintaining public order and combating crime, there are situations where the use of exclusively "non-forceful" measures is not possible ^[1].

According to the "Review of the practice of the use of physical force, special means and firearms by employees of the internal affairs bodies of the Russian Federation in the performance of operational and service tasks for 2022", a significant part of the facts of the use of these coercive measures (1165 facts per 1 thousand personnel) account for the share of the patrol and post service of the police. At the same time, almost half of the facts are related to the use of special means (549 per 1 thousand personnel) ^[2]. It should be noted that statistics on the use of improvised items instead of special tools are not kept.

Considering us, the topic has repeatedly become the subject of scientific research. The following scientists addressed her in their works: A.Yu. Ivanov, Yu.E. Avturyan, S.P. Budavin, S.N. Barkalov, P.N. Voynov and a number of other scientists. At the same time, it should be noted that they base their research on the improvement of tactical and technical techniques for using improvised means, often ignoring the legal side of this research problem. The authors of this article aim to consider the problem of using improvised means in the activities of police officers in a complex both from a legal and tactical point of view.

It should be pointed out that the special means used by the police are a set of items directly intended to support the activities of the police. At the same time, a distinction should be made between special means in service with the police and other non-special means of ensuring the activities of the police. So, in their activities, the police use various means: radio stations, vehicles, means of detecting prohibited items, information databases, optical devices and video surveillance, means of armor protection and many other necessary means of ensuring the activities of the police. The main feature of a special police tool becomes its intended purpose, that is, the use of objects or the environment that pose a certain danger as an active influence on the offender.

Taking into account the peculiarities of the activities of the patrol and post service of the police in its law enforcement practice, situations often arise when the use by police officers of special means and firearms available to them for objective reasons (for example, loss during the prosecution of a criminal, lack of a significant number of offenders, breakdown, etc.) is impossible.

In the context of these situations, Federal Law No. 3-FZ of February 7, 2011 "On the Police" (hereinafter – the Federal Law "On the Police") provides that "in a state of necessary defense, in case of extreme necessity or when detaining a person who has committed a crime, a police officer in the absence of the necessary means or firearms, the right to use any improvised means, as well as on the grounds and in accordance with the procedure established by this Federal Law, to use other weapons not in service with the police" ^[3]. However, there is no established procedure for the use of improvised means, their classification by analogy with the use of special means adopted for armament, which requires consideration of this problem in the context of the formation of professional competence of an employee of the internal affairs bodies. In addition, issues related to the criteria for choosing tactics of actions when using improvised items and means that are not in service closely overlap with issues of compliance with the legality and effectiveness of the chosen actions, forecasting the consequences when using coercive measures in this form. This necessitates the formation of theoretical knowledge and the development of practical skills in the tactically correct order of their implementation in the course of patrol duty, including through the formation of a special skill of using improvised items instead of special tools in the process of training in educational organizations of the Ministry of Internal Affairs of Russia. This problem caused the relevance of this study.

In legislative acts and, in particular, in the Federal Law "On Police", within the framework of regulatory regulation of the use of physical force, special means and firearms, the concepts of "improvised" and "not in service" are used.

According to the Dictionary of the Russian language by S.I. Ozhegov, "handy" means "located, available, at hand" ^[4]. The term "not in service" is an antonym in content to "in service" ^[5], that is, included in the composition of the means necessary for war, in the context of law enforcement – necessary to counter crimes and administrative offenses.

The specified terminology interprets the content of improvised means and means that are not in service, quite widely. In a certain aspect, they can be understood as various items of both a technical and special nature (for example, means of communication) and everyday use (for example, a belt), permissible for use in the activities of internal affairs bodies in certain circumstances.

At the same time, the reflection of these concepts in Chapter 5 of the Federal Law "On Police", which regulates the use of physical force, special means and firearms by the police as measures of state coercion, significantly narrows the scope of their understanding to this sphere. Thus, improvised means (items) and means that are not in service can be used by police officers only in conditions of the use of physical force, special means and firearms. Regulatory regulation of the use of other means, such as: means of communication, computing, electronic, organizational and special equipment, is beyond the scope of the study of this work.

It should be borne in mind that the current legislation does not contain provisions defining the specifics of the legal regulation of the grounds and conditions for the use of physical force, special means and firearms in relation to the activities of the patrol and post service of the police, with the exception of certain provisions of the "Instructions on the organization of the official activities of the combatant units of the patrol and post service of the police of the territorial bodies of the Ministry of Internal Affairs of Russia", approved by the order The Ministry of Internal Affairs of Russia No. 495 dated June 28, 2021 (hereinafter referred to as the Instruction of the PPSP). Thus, these public relations are subject to general regulation applicable to all police units, while the peculiarities are often manifested only in the tactical aspects of the implementation of these rights.

The legal basis for the use of physical force, special means and firearms for the police is the federal constitutional laws, the Federal Law "On Police" and other federal laws. At the same time, the analysis of the regulatory framework regulating these aspects allows us to refer to the main ones, as well as the Federal Law "On Police" and the Criminal Code of the Russian Federation. In most cases, other regulatory legal acts contain either a reference norm or confirm the provisions of the above-mentioned acts. For example, Federal Constitutional Law No. 3-FKZ of May 30, 2001 "On the State of Emergency" indicates that the procedure and conditions for the use of physical force, special means, weapons, combat and special equipment established by federal laws and other regulatory legal acts of the Russian Federation are not subject to change in the conditions of a state of emergency.

Also, it should be noted that there is no reference to international legal acts in the norms of the Federal Law "On Police" defining the legal grounds for the use of these coercive measures, such as:

1. The Basic Principles of the Use of Force and Firearms by Law Enforcement Officials (adopted in 1990 in Havana by the VIII UN Congress on the Prevention of Crime and the Treatment of Offenders), which states that "law enforcement officials in the exercise of their functions, as far as possible, use non-violent means before the forced use of force or firearms. They can use force and firearms only in cases where others are ineffective or do not give any hope of achieving the intended result" ^[6];

2. The Code of Conduct for Law Enforcement Officials (adopted in 1979 by resolution 34/169 of the UN General Assembly), which determines that "law enforcement officials may use force only if absolutely necessary and to the extent required to perform their duties" ^[6], etc.

This approach, on the one hand, formally narrows the legal basis for the use of physical force, special means and firearms by police officers, on the other hand, makes it possible to allow the legislator to deliberately avoid fixing international legal acts as guiding documents regulating these aspects.

The rationale for this approach may be considered the following arguments:

1. International legal acts are included in the legal system of the Russian Federation subject to their ratification, therefore, domestic regulatory legal acts cannot contradict them. That is, if an international act is applied on the territory of the Russian Federation, then its provisions do not form a conflict with the provisions of federal constitutional and federal laws, or they have been changed in order to avoid such a confrontation.

2. The international acts under consideration fix only the general principles of the use of physical force, special means and firearms by law enforcement officers.

3. The analysis of national legislation allows us to speak about the consolidation of the substantive part of the provisions of international acts in the normative legal acts of the Russian Federation with their subsequent specification and detailing.

In relation to the activities of the patrol and post service of the police, the departmental legal act regulating the possibility of using coercive measures, in addition to the Federal Law "On Police", is also the Instruction of the PPSP. In this context, this regulatory legal act defines additional conditions and frameworks for the use of weapons, ammunition, special means and special equipment in the activities of the patrol and patrol service of the police. In particular, paragraph 61 of the Instruction of the PPSP additionally contains a ban on the use of weapons, ammunition, ammunition, special means, special equipment, samples of which have not been adopted (supplied) by the internal affairs bodies. At the same time, this norm, unlike the provision enshrined in the Federal Law "On Police", does not imply any variability in this case.

At the same time, this point does not have significant legal significance in view of the fact that the Federal Law "On the Police", which allows an exception in this matter, has greater legal force compared to the departmental regulatory legal act. It should be noted that in paragraph 11 of the Instruction of the PPSP, the rights and obligations of employees of the patrol and post service of the police are fixed when serving to use physical force, special means and firearms in accordance with the procedure provided for in Chapter 5 of the Federal Law "On Police". At the same time, we believe it is necessary to bring these norms to a single meaning due to the fact that the following questions arise: is it possible to conduct this analysis in a stressful situation requiring immediate action on the part of an officer of the patrol and post service of the police, and will he not be guided in this case by a departmental regulatory legal act that he "closer", namely, to the Instruction of the PPSP?

Thus, we can agree with the conclusions of D.A. Gavrilov that the regulatory and legal regulation of the use of physical force, special means and firearms by police officers is systemic in nature and includes interrelated legal prescriptions that reflect all legally significant aspects of the actual situation of the use of these coercive measures ^[7].

It should be noted that the legal basis for the use of improvised means and means that are not in service with the police are not identical in general to the use of physical force, special means and firearms by police officers. Thus, as part of the similarity assessment, it can be stated that the use of improvised means (objects) is more consistent with the use of special means, but the use of weapons that are not in service can be projected both on special means (for example, the use of gas weapons) and on firearms. In addition, the Federal Law "On Police" sets certain limits on their use as coercive measures. These additional conditions include:

- the state of necessary defense, extreme necessity or detention of a person who has committed a crime;

- the police officer does not have the necessary special means or firearms;

- the need to comply with the procedure and grounds applicable when using special means or firearms.

It should be borne in mind that the first two conditions apply to the use of improvised means, while the third applies to weapons not in service with the police.

In this case, in the context of the issues under consideration, it should be noted that the differentiation of improvised means and weapons that are not in service with the police, laid down by the Federal Law "On Police", which accordingly causes the need to define the content of these concepts.

An improvised tool is an object that is "at hand", which can be used in cases of an attack on a police officer in a combat or household situation ^[8]. Based on the context laid down in the Federal Law "On Police", by allocating improvised means and weapons that are not in service with the police, the first should include those means that structurally or meaningfully have a "peaceful" purpose, belong to the category of household and industrial purposes, as well as sports equipment that are structurally similar with a gun. Obviously, the list of types of such funds is very extensive. These include items such as a stone, a stick, glass, a rope, a piece of fittings, a cutlery, a piece of clothing, haberdashery products, printed products, etc. ^[9].

The concept of "weapons" covers devices and objects structurally designed to defeat a live or other target, sending signals. These include firearms, cold weapons, throwing weapons, pneumatic weapons, gas weapons, depending on the purpose of use, divided into civilian, service, combat small arms and cold.

Thus, in order to disclose the specified conditions for the use of improvised means, an appeal to the Criminal Code of the Russian Federation is required, where, in particular, the concepts are defined:

- "necessary defense", that is, protection of the personality and rights of the defender or other persons, the interests of society or the state protected by law from socially dangerous encroachment, if this encroachment was associated with violence dangerous to the life of the defender or another person, or with the immediate threat of such violence (Article 37 of the Criminal Code of the Russian Federation);

- "extreme necessity", that is, the elimination of a danger directly threatening the person and the rights of this person or other persons, the legally protected interests of society or the state, if this danger could not be eliminated by other means and at the same time it was not allowed to exceed the limits of extreme necessity (Article 39 of the Criminal Code of the Russian Federation);

- "detaining a person who has committed a crime", that is, to deliver him to the authorities and prevent him from committing new crimes, if it was not possible to detain such a person by other means and at the same time the necessary measures were not exceeded (Article 38 of the Criminal Code of the Russian Federation).

Obviously, the use of improvised items is based on the use of special tools. For example, using improvised means actually becomes unacceptable within the framework of the suppression of administrative offenses, since these acts are not socially dangerous, but belong to the category of socially harmful.

At the same time, a literal interpretation of the provisions of the Federal Law "On the Police" allows us to highlight the downside of this approach, in the form of a formal absence of obligation for police officers to comply with the conditions and restrictions established in this normative legal act, guided only by the provisions of the Criminal Code of the Russian Federation. In such a situation, a legal conflict arises, on the one hand, requiring a police officer to act taking into account the current situation, the nature and degree of danger of the actions of persons against whom physical force, special means or firearms are used, the nature and strength of the resistance provided, in an effort to minimize any damage, on the other hand, the absence of a ban in Criminal Law the Code of the Russian Federation with regard to minimizing the harm caused to an encroaching person in a state of necessary defense. In certain cases, for example, under conditions of unexpected encroachment or reflection of violence that is life-threatening, the boundaries of the damage caused are not marked at all, that is, causing death to the attacker is permissible ^[10].

It seems to us that in the case of a conflict of documents of equal legal force, priority should be given to specialized norms. In this regard, we consider it necessary, when using improvised means by police officers, to comply with the requirements to minimize any damage.

Also important is the requirement that allows the use of improvised means in the absence of the employee of the necessary special means or firearms. In this case, it is necessary to focus attention on the fact that it does not require the complete absence of any special means and firearms, but only those necessary to solve a specific operational and service task. For example, if it is necessary to use means of restricting mobility to use improvised means (rope, waist belt, etc.), only the absence of handcuffs from the employee is required, the presence or absence of other special means (special sticks, gas means, etc.) does not play any role in this case.

The use of weapons that are not in service with the police, on the contrary, does not imply the allocation of any special grounds, with the exception of those enshrined in the Federal Law "On Police", while it requires compliance with the conditions and restrictions established in it. This approach allows us to conclude that the use of weapons that are not in service is no different from the use of "service" weapons. This approach is logical, taking into account the previously indicated differentiation of weapons, where other types of weapons are on a par with service weapons. At the same time, it should be borne in mind that the weapons adopted by the police do not involve excessively severe injuries and do not serve as a source of unjustified risk. Thus, a police officer, before using a weapon that is not in service with the police, must independently assess its compliance with the above-mentioned criterion.

It is necessary to pay attention to the fact that some authors do not consider the differentiation of the conditions for the use of improvised means and weapons that are not in service with the police, extending the above requirements to both permissible means of implementing coercive measures by the police ^[11]. We believe that this approach is overly generalized. At the same time, regardless of the approach used, the priority of special norms in the form of provisions of the Federal Law "On Police" obliges police officers, when using improvised means or weapons that are not in service with the police, to comply with an algorithm defined by them, which determines the legality of the use of these coercive measures by police officers.

Thus, it can be concluded that there are peculiarities in the grounds for using improvised means instead of special means that are in service with the police.

Another issue of the use of improvised means is their classification according to the method of application, since the rope and stick will not be able to be used for the same purpose. Improvised means (items) can be divided into several groups:

1. Stick-like objects are universal means of defense and attack that allow you to defend yourself at close range by delivering crushing blows to the attacker.

2. Piercing and cutting objects - have sharp elements and are used for stabbing and cutting blows, for example, a comb, a hairpin, a bank card, a ballpoint pen.

3. Rope–like objects - that is, any flexible objects, such as wires, ropes, a scarf, a belt, used as an object that allows you to bind the attacker's movements.

4. Various small objects - which can be used to throw at the enemy in order to distract attention, they mean the use of absolutely any small objects: a phone, a bottle of something, a bottle of water, coins.

5. Objects similar to a shield - for example, a bag, a book, a chair, an umbrella, are used both for active protection against blows and for retaliatory strikes

6. Objects that spray substances – such as an aerosol can used instead of a special gas agent ^[12].

Thus, it can be concluded that the legal basis for the use of physical force, special means and firearms for the police, and, consequently, improvised means, civilian weapons that are not in service with the police, are not only federal constitutional laws, the Federal Law "On Police" and other federal laws, but also international legal acts.

In addition, regardless of the existence of general norms enshrined in various regulatory legal acts, regarding the activities of police officers, there is a priority of special norms in the form of provisions of the Federal Law "On Police", which obliges when using improvised means or weapons that are not armed with the police, to comply with an algorithm defined by them, which determines the legality of the use of these measures by police officers coercion.

The legal basis for the use of improvised means (items) and means that are not armed with the police correspond to the grounds for the use of special means, and the use of weapons that are not armed can be projected both on special means (for example, the use of gas weapons) and firearms.

At the same time, using improvised means (objects) and means (weapons) that are not in service with the internal affairs bodies, the following restrictions should be taken into account:

1. the state of necessary defense, extreme necessity or detention of a person who has committed a crime;

2) the police officer does not have the necessary special means or firearms;

3) the need to comply with the procedure and grounds applicable when using special means or firearms;

4) the need for the ratio of the improvised means (object) used with a similar special tool, which is armed with the police.

It should be noted that the current legislation does not contain provisions defining the specifics of the legal regulation of the grounds and conditions for the use of physical force, special means and firearms in relation to the activities of the patrol and patrol service of the police, with the exception of certain provisions of the Instruction PPSP. The existing contradiction in the regulation of the use of special means and weapons is of a formal nature due to the fact that the Federal Law "On Police" has greater legal force compared to the departmental regulatory legal act, and, therefore, has priority in application.

The regulatory legal regulation of the use by police officers of improvised means and weapons that are not in service with the police is systemic in nature and includes interrelated legal prescriptions that reflect all legally significant aspects of the actual situation of the use of these coercive measures. At the same time, additional regulation of the use of improvised means is required not only to replace special ones, but along with them to ensure the fulfillment of the tasks assigned to the patrol and post service of the police.