The legality of the application of administrative coercion measures in the activities of the police

Kurakin Aleksei Valentinovich Doctor of Law Professor at the Department of Administrative and Information Law of the Financial University Under the Government of the Russian Federation 125993, Russia, Moskva oblast', g. Moscow, ul. 125993, Moskva, Leningradskii, 49 kurakinaleksey@gmail.com Other publications by this author

The problem of legality is not new for the legal science and practice of applying the norms of administrative law, nevertheless, this issue does not lose its relevance. This is due to a number of circumstances, firstly, when applying coercive measures, there is a restriction on the rights of citizens and business entities, and this is always a certain "conflict" of private and public interests. Secondly, when applying coercive measures, there is power, the possession of which can lead to abuse, excessive coercive influence and, as a result, violation of the rights of those persons to whom this coercion is applied. It should be noted that there is such a phenomenon as "abuse" in law enforcement. Abuse of something is always a negative social consequence, abuse leads to offenses, for example, of a mercenary nature, but there may also be abuses of law, which, like any other abuse, undermine the requirements of legality, including when applying administrative coercion measures. As A.A. Malinovsky wrote, "... the struggle of good against evil, which will continue for many years in the legal field, will never end in victory for any of the parties. This "struggle" is being waged for the measure of freedom that is provided by the rule of law, and which a person constantly wants to expand by abusing it. But this struggle is a constant source of improvement of the law" ^[1].          

It happens that the requirements of legality are violated. As A.I. Elistratov wrote at the time, "... no matter how carefully the law regulates the mutual relations of state agents with citizens, as well as between state institutions themselves, by the mere fact of its existence, it will not exclude the possibility for governing bodies to commit illegal actions. In order to prevent or at least eliminate or mitigate the harmful effects of these offenses, special devices and special guarantees are needed" ^[2].  Regarding the guarantees of legality in administrative activities, it is said separately. Thus, V.A. Ponikarov wrote that "... guarantees of legality in administrative activities are administrative and legal means that contribute to the implementation of certain legal norms, as well as methods developed by the state to ensure accurate observance, application of laws, proper use of law and performance of duties by all participants in legal relations with the involvement of offenders to legal responsibility" ^[3].   

In this regard, in the interests of ensuring legality, it is necessary to form a system of guarantees, both material and procedural, aimed at ensuring the requirements and regime of legality. Thus, the Federal Law of February 7, 2011 The Law on the Police stipulates that "... a police officer is obliged to provide first aid to a citizen who has received bodily injuries as a result of the use of physical force, special means or firearms, as well as take measures to provide him with medical care as soon as possible." The law "On Police" also stipulates that "... about each case of the use of physical force, as a result of which harm was caused to the health of a citizen or material damage was caused to a citizen or an organization, about each case of the use of special means or firearms, a police officer is obliged to inform the immediate superior and within 24 hours from the moment of their use to submit the appropriate report" (Article 19). These regulations are guarantees of legality in the application of special administrative coercion measures.  

Thus, the appeal to the problem of ensuring legality in the application of administrative coercion measures does not lose its relevance.                         

It is obvious that the use of administrative coercion is a rather difficult job, which determines the existence of a number of stages. At these stages, the analysis of the law enforcement situation that has arisen is carried out, the analysis of the regulatory prescription and some other procedural actions is carried out. All this can be dispersed over a certain time, in other situations everything happens very dynamically. However, despite various law enforcement situations, the main thing is to comply with the requirements of legality, it is especially important, as already noted, to comply with these requirements when applying administrative coercion measures. This is due to certain circumstances, firstly, the "energy" of power is concentrated in administrative coercion; secondly, the result of administrative coercion is always restrictions on the rights of the subject to whom it is addressed. Compliance with the requirements of legality in the application of administrative coercion is an indicator of law and order in administrative (police) activities, as well as one of the signs of a rule of law state. On this issue, V.V. Frolov wrote that "... legality is a fundamental category of all legal science and practice, and its level and condition serve as the main criteria for evaluating the legal life of society" ^[4].  

Regarding the phenomenon of legality, but through the prism of the rule of law, N.N. Polyansky wrote that "... the rule of law is characterized primarily by the rule of law and the law" ^[5]. Assessing the principle of legality, J. Wedel noted that "... the principle of legality in relation to the administration expresses the norm according to which the administration must act in accordance with the law" ^[6]. 

The indicated provisions are indisputable, one can even say that they are absolute. However, it must be understood that simply the adoption of laws and other regulatory legal acts does not guarantee a genuine regime of legality, including in the sphere of implementation of administrative coercion. Ensuring the requirements of legality is a constant job that requires the efforts of a wide variety of actors. As R. Iering wrote, "... the life of law is a struggle, a struggle of peoples, state power, estates, individuals" ^[7].

Legality is a legal state that is not objectively formed, legality is the result of the work of the state, society and an individual. Compliance with the requirements of legality in the application of state coercion measures is a task of paramount importance. On this issue, E.H. Mammadov, correctly, noted that "... legality in the application of administrative coercion measures can be determined by a clear formulation in the law of the method of coercive influence, fixing the purpose of such influence, the grounds for influence, fixing the status of the subject authorized to apply such influence, as well as determining the timing and procedure for the procedural registration of coercive influence" ^[8].          

Thus, legality in the application of administrative coercion cannot arise objectively, these requirements are provided by a whole system of guarantees of both a legal and organizational nature, as well as the procedural form established for the corresponding coercion. As A.P. Korenev wrote at the time, "... the main directions for improving the practice of applying legislation on administrative offenses include: improving the working conditions of subjects using coercion.  It is also extremely important to improve the quality of work with information on administrative offenses, as well as to increase the effectiveness of the execution of resolutions on administrative offenses, etc." ^[9].       

It is quite obvious that State coercion makes law legitimate. The right is not an absolute freedom, the right is always an established limitation. And these restrictions may be related to the effect of state coercion implemented in a variety of forms. Restrictions of rights caused by the implementation of state coercion are very painfully perceived by the subject who is forced to undergo these restrictions, and therefore the requirements of legality in this area of legal regulation are increasing. It should be borne in mind that ensuring the rule of law in the application of administrative coercion also concerns related issues, in particular the protection and protection of citizens' rights. In this regard, S.V. Yarkova is right, who noted that "... legality in administrative activities, regardless of whether it is considered as a principle, state or legal regime, is closely interrelated with ensuring the rights and freedoms of citizens in respect of whom this activity is carried out" ^[10].    

Legality in the mechanism of action of administrative coercion is comprehensive, and therefore it is necessary to say a few words about this phenomenon. As S.P. Bulavin wrote at the time, "... legality is the basis of a democratic regime of the rule of law, representing the supremacy of the rule of law in public life, consisting of strict and unswerving observance by all subjects of public relations of laws and by-laws ensuring the guarantee and protection of the rights and freedoms of citizens, the legitimate interests of society and the state" ^[11]. 

In turn, V.N. Kudryavtsev also wrote that "... legality is a certain mode of public life, a method of state leadership, consisting in organizing public relations through the publication and steady implementation of laws and other legal acts. Legality can be considered as a central principle of law that defines other principles and provisions. Legality is the general principle of the organization of a modern legal and democratic state, the basis for ensuring law and order and protecting individual rights" ^[12].   

The above definitions formulate generally similar provisions regarding the fact that a genuine regime of legality is possible only in conditions of democratization of public life, and that the requirements of legality are necessary for the protection and protection of citizens' rights. Ultimately, legality is needed precisely to ensure the normal functioning of people, the inadmissibility of unjustified state coercion, as well as compliance with other basic principles, both legal regulation and the activities of state institutions. Thus, it is, in fact, an axiom that restrictions on the rights of citizens without proper grounds are not permissible. It is significant that in the Federal Law of February 7, 2011                "On the Police", it is stated that "... any restriction of the rights, freedoms and legitimate interests of citizens is permissible only on the grounds and in accordance with the procedure provided for by law" (Article 3). Any restriction of rights in the application of administrative coercion must have a legal and social meaning. In this regard, D.S. Dubrovsky, correctly, noted that "... restriction of freedom is usually aimed at suppressing violations of public order or the order of government. At the same time, some such measures simultaneously have the character of preventing violations of law and order that may arise in the future" ^[13]. The effect of administrative coercion often leads to the establishment of legal restrictions, as well as the restriction of citizens' rights. However, it is not only administrative coercion that leads to the establishment of appropriate restrictions. In this regard, one cannot agree with V.A. Melnikov, who noted that "... the institution of administrative coercion is, in fact, the only form of law enforcement method of administrative and legal restriction of citizens' rights" ^[14].

The rights of citizens in the legal reality can be limited without any coercion. But with the restriction of citizens' rights, regardless of the grounds for such restriction, the principle of legality, as well as the protection and protection of citizens' rights, continues to operate. Moreover, not all citizens' rights fall under legal restrictions, including those caused by the action of administrative coercion. As A.P. Korenev noted, "... among the rights that cannot be limited are absolute rights, the realization of which depends solely on the desire of a person and often these rights are inseparable from the personality itself. These rights relate to honor, dignity, inviolability of the person, etc." ^[15]. So, it is no coincidence that the Administrative Code determines that "... administrative punishment cannot be aimed at humiliating human dignity or causing physical suffering to a person (art. 3.1). It is also determined that "... a personal search is carried out by a person of the same sex as the person being examined" (Article 27.7). 

Based on this, it should be noted that the subject entitled to apply one or another measure of state coercion (restrictions) is obliged to analyze the current situation in detail. In addition, it is necessary to take into account both objective and subjective circumstances of the situation, which may determine the grounds for the use of state coercion. This will help to avoid unjustified administrative impact, if not eliminate it altogether, then at least minimize the situation of excessive administrative coercion. And this may ultimately affect compliance with the requirements of legality, will allow not to violate, but to ensure the rights of citizens involved in the sphere of administrative and legal reality. This will also allow public and private interests to be taken into account when applying administrative measures.  

The requirements of legality permeate the entire process of applying administrative coercion measures. The requirements of legality are quite substantial, and attention is drawn to them in a variety of situations of administrative influence. In particular, A.Y. Krasnoglazov noted that "... the requirements of legality in the application of administrative procedural measures at the stage of initiation of an administrative offense case represent the guiding principles enshrined in the law, or the norms of administrative law arising from the principles and meaning, establishing the procedure and regulating the process of applying administrative procedural measures. At the same time, the requirements of legality create objective prerequisites for compliance of the legal process with the law, in order to clarify the circumstances of the case in the most complete and comprehensive way, which are subject to mandatory implementation by the subject applying a specific measure, and are therefore a qualitative indicator of legality" ^[16].

The principle and requirements of legality are fixed in different ways in the texts of laws.   As follows from the Federal Law of February 7, 2011 "On the police", "... the police carry out their activities in strict accordance with the law" (art. 3). It should be noted that the Administrative Code establishes the requirement to ensure legality in the application of administrative coercion measures in connection with the commission of an administrative offense (art.1.6). It would be correct to take a more detailed approach to consolidating the requirements of legality in proceedings on administrative offenses, focusing not only on coercion, but also other actions carried out within the framework of of this production. And therefore it is necessary to agree with V.I. Krasnov, who noted that "... the principle of legality in the application of administrative responsibility should be considered as the principle of imposing administrative punishment, and as the principle of proceedings in cases of administrative offenses" ^[17].

A similar approach is adopted in the legislation of some countries. Thus, the Code of the Republic of Uzbekistan on Administrative Responsibility establishes the provision that "... no one can be subjected to measures of influence in connection with an administrative offense except on the grounds and in accordance with the procedure established by law. Proceedings in cases of administrative offenses are carried out on the basis of compliance with the rule of law" (Article 8).  

Please note that the Administrative Code of the Russian Federation also enshrines a number of other principles that, on the one hand, specify the requirements of legality, on the other, expand the boundaries of its operation. There is no doubt that the principle of presumption of innocence is also aimed at ensuring legality. Thus, "... a person is subject to administrative responsibility only for those administrative offenses in respect of which his guilt has been established. In addition, the person against whom the proceedings on an administrative offense are being conducted is considered innocent until his guilt is proven and established by a decree that has entered into force" (art. 1.5).

It is important from the point of view of ensuring legality in the proceedings on administrative offenses, to ensure the procedural rights of participants in this proceeding. As V.A. Melnikov wrote at the time, "... the right of a person brought to administrative responsibility for protection is a subjective right guaranteed by law, suspected or accused of committing an administrative offense, as well as a person brought to administrative responsibility, allowing its owner to perform certain procedural actions within the framework of the law. Such a right is exercised in order to prevent a person from being brought to administrative responsibility for an offense that he did not actually commit; to counteract bringing to administrative responsibility for a more serious offense than that committed by a person in reality. In addition, this right is necessary to ensure the protection of a person's personal and property rights and to prevent the use of coercive measures against him that are not caused by the interests of establishing the truth, as well as to achieve other tasks of administrative proceedings" ^[18]. 

According to the Administrative Code, "... a person in respect of whom proceedings on an administrative offense are being conducted has the right to get acquainted with all the case materials, give explanations, present evidence, file petitions and challenges, as well as use the legal assistance of a defender" (Article 25.1). Among the guarantees of legality in the application of measures of administrative procedural coercion, such prescriptions as "... harm caused by the illegal application of measures to ensure the proceedings in an administrative offense case is subject to compensation" (Article 27.1) can also be attributed.     Also, "... a protocol is drawn up on delivery or a corresponding entry is made in the protocol on an administrative offense or in the protocol on administrative detention" (Article 27.2), etc.

Consideration of the requirements of legality in the application of administrative coercion, a number of issues are revealed due to the problems of the relationship between legality and expediency in the operation of this coercion, issues of discretion are revealed when applying a particular coercive measure of influence. As noted by J. Wedel "... in no field is the distinction between expediency and legality felt to such an extent as in the police field. After all, expediency determines legality to a large extent" ^[19]. In matters of the application of measures to ensure the proceedings in cases of administrative offenses, quite often there is a "competition" of legality and it is advisable to apply one or another measure of influence. On this issue, M.S. Strogovich wrote at the time that "... the conclusion about the relationship between legality and expediency is that in each case, when considering an economic or administrative case, the law must be respected, there should be no deviations from it. However, within the limits of the law, the measure that the law establishes should be taken, which should be the most appropriate for this case, taking into account the circumstances of a particular case" ^[20].

The subject applying the measure of administrative influence often has a certain variability. In this sense, the judgment of A.Y. Krasnoglazov is interesting, who noted that "... expediency in the application of administrative procedural measures is achieved through discretion, acting as a method of implementing expediency" ^[21]. 

As follows from the Administrative Code, "...measures to ensure the proceedings in the case of an administrative offense are applied in order to establish the identity of the offender and draw up a protocol on an administrative offense if it is impossible to draw it up at the place of detection of an administrative offense" (Article 27.1). In such a prescription, the assessment of objective reality is with the subject carrying out the relevant procedural actions. Even having the opportunity to draw up a protocol on an administrative offense on the spot, as well as to establish the identity of the violator, the subject of power can, on quite "legitimate", subjective grounds, carry out delivery and further detention. The term of administrative detention should not exceed three hours (Article 27.5), it should be noted that it is not always necessary to formally follow this deadline. It is quite obvious that as soon as there is no need to detain a person, and three hours have not passed, the person who was subjected to administrative detention should be immediately omitted. Otherwise, it can be assessed as a violation of the requirements of legality.

The expediency of implementing administrative enforcement measures should not suppress the requirements of legality. Expediency should contribute to increasing the effectiveness of the appropriate coercion, and for this an appropriate algorithm for applying the legal norm should be built in. As A.Y. Krasnoglazov noted, "... expediency in the application of administrative procedural measures is possible with a combination of the following conditions. The inadmissibility of going beyond the limits of the legal norm, compliance with the purpose contained in the legal norm, the specific situation; the desire to achieve maximum effectiveness of the applied coercive measure; a reasoned justification for the use of coercion; compliance with all procedural requirements in the application of administrative coercion measures. And the last condition is the legal awareness of the subject applying the measure of coercion, his experience and qualifications" ^[22]. The process of applying administrative coercion objectively creates a situation of legal discretion, which is necessary to choose the optimal option of coercive influence. As A.P. Korenev noted, "... administrative discretion may be expressed in granting the right to an authority, an official, to assess a legal fact. Thus, the Administrative Code provides for the possibility of exemption from administrative liability in case of insignificance of an administrative offense" ^[23].

It should be noted that in relation to a person who has committed an administrative offense, which is assessed as insignificant, it is inappropriate, and in some cases unacceptable, to apply measures of administrative procedural coercion. In this context, it is interesting to pay attention to the Code of the Republic of Uzbekistan on Administrative Responsibility. This law states that "...administrative detention is not allowed in case of a minor administrative offense; if there is a possibility of imposing an administrative fine at the place of commission of an administrative offense; if there is an opportunity to identify the administrative offender on the spot and draw up a protocol on an administrative offense" (Article 286). In conclusion, consideration of the indicated issue, it should be noted that The effectiveness of the use of administrative coercion in police activities depends on compliance with the requirements of legality. Compliance with the requirements and conditions of legality plays a key role in the application of State coercion measures in general and administrative coercion measures in particular. Legality is a key requirement in the application of administrative coercion measures. Legality in the process of applying administrative coercion measures is often a requirement of compliance with the procedural form, as well as the protection and protection of citizens' rights. Legality as a principle of the application of administrative coercion measures in police activities, on the one hand, combines other principles of the application of coercive measures, on the other hand, the operation of the principle of legality should not replace the work of other principles.