Features of the implementation of control (supervisory) activities in the field of the technical condition of self-propelled machines and other types of equipment by the State Technical Supervision bodies of the Russian Federation

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

Control (supervisory) activities today are a rapidly developing field of activity of public authorities. Its digitalization is taking place at a rapid pace, and approaches to its implementation are radically changing. From yesterday's "stick" under the leadership of the Ministry of Economic Development of the Russian Federation, this activity is turning into a risk-oriented one aimed at helping and supporting a controlled entity as a subject of economic activity.

However, not all public authorities are fully legally and practically ready for the new realities. One of these bodies are the regional bodies of Gostechnadzor of the Russian Federation.

At the beginning of our study, it is proposed to consider the concept of control (supervisory) activity, to determine the signs, tasks and principles of control (supervision).

The Russian legal doctrine calls control (supervisory) activity as a function of public administration aimed at identifying and suppressing deviations from mandatory norms (requirements) in order to ensure the safe functioning of the state and society {1}.

Disputes about the similarities and differences between the concepts of "control" and "supervision" remain relevant to this day {2}. Some authors believe that supervision is part of control {3}, others point out that supervision is an independent activity {4}. For the purposes of this study, we propose to consider the concepts of control and supervision identical and proceed from the official interpretation given by the legislator.

The scientific literature highlights the signs, tasks and principles of control (supervision). The signs distinguishing control (supervision) other functions of the state include {5}:

- its implementation in order to establish the legality of the activities of controlled persons;

- the absence of organizational subordination and subordination between the supervisory authority, the official and the controlled person;

- the possibility of interfering in the current administrative and economic activities of the controlled person, canceling his illegal and inappropriate decisions, giving instructions on ways, methods and deadlines for eliminating the detected shortcomings;

- the possibility of bringing to administrative responsibility those responsible for the identified violations.

The tasks of control (supervision) are {6}:

- monitoring the functioning of a controlled entity;

- obtaining objective and reliable information about the state of legality;

- taking measures to prevent and eliminate violations of the rule of law;

- identification of the causes and conditions contributing to violations;

- bringing the perpetrators to justice.

Legality, planning, objectivity, systematicity, efficiency, qualification, efficiency are the fundamental principles of the control (supervisory) activity of the state {7}.

The presence of a wide range of spheres of public life obliges the state to classify control (supervision) by type, depending on the type of economic activity of the controlled person.

The appropriate type of control (supervision) is the subject of the activity of the executive authority (supervisory authority), empowered to implement the supervisory function of public administration {8}.

The subject, participants, objects, forms, and grounds of control and supervisory activities are determined by the legislator in Federal Law No. 248-FZ dated 07/31/2020 "On State Control (Supervision) and Municipal Control in the Russian Federation" (hereinafter – Law No. 248).

Law No. 248 is a regulatory legal act that establishes a unified, unified model of control (supervisory) activities, independent of the type of control (supervision).

Chapter 5 of Law No. 248, continuing the principles of risk management of harm (damage) to legally protected values in the implementation of State control (Supervision) laid down in Federal Law No. 294-FZ dated 12/26/2008 "On the Protection of the Rights of Legal Entities and Individual Entrepreneurs in the Exercise of State Control (Supervision) and Municipal Control" (amendments of 2015), defines the concept of a risk-based approach.

This approach is a worldwide and innovative development in the field of control (supervisory) activities. It is he who laid the foundation for the reform of control (supervisory) activities in the Russian Federation, which began in 2020 and continues to this day. It is the cornerstone of the entire concept of improving control (supervisory) activities in the Russian Federation until 2026, planned and dictated by the Ministry of Economic Development of the Russian Federation (hereinafter - the Concept of the CND).

The essence of the risk-based approach is that the intensity of state control (supervision) or municipal control over the activities of a controlled person, as well as the forms of such control (supervision), directly depend on the risks of damage to legally protected values due to possible non-compliance with requirements during such activities.

In other words, any objects of control belonging to a controlled person are subject to categorization and assignment to a certain risk group (category). This category determines the frequency of scheduled control and supervision and mandatory preventive measures.

In addition, control (supervisory) bodies are required to develop indicators of the risk of violation of mandatory requirements (hereinafter referred to as indicators). These indicators are a signal, when triggered, the control (supervisory) body has a basis for conducting a control (supervisory) event.

In the midst of the reform of control (supervisory) activities, the Government of the Russian Federation adopted Resolution No. 336 dated 03/10/2022 "On the Specifics of the Organization and implementation of State Control (Supervision), municipal Control" (hereinafter – Resolution No. 336).

This resolution has identified the following key changes in the control (supervisory) activities:

1. it is impossible to carry out unscheduled control and supervisory measures with interaction without their coordination with the Prosecutor's Office of the Russian Federation (except in special cases);

2. control and supervisory authorities overseeing control facilities that do not belong to the "extremely high" and "high" risk categories, as well as hazardous production facilities of hazard class II, hydraulic structures of class II, lose the opportunity to carry out planned control (supervisory) measures, the frequency of which is determined by the above-mentioned risk-oriented approach.

In accordance with the rule established in the first paragraph, all control and supervisory measures with interaction are coordinated with the Prosecutor's Office of the Russian Federation. We believe that this change is intended to accumulate all types of control (supervisory) activities carried out by various "relevant bodies" in one. In this case, in fact, the Prosecutor's Office of the Russian Federation began to act as the "center" of all control (supervisory) activities of the Russian Federation.

This thesis is also supported by the procedure for coordinating indicators as one of the key grounds for conducting control and supervisory activities. In accordance with the established procedure, the adoption of the indicator takes place in strict coordination of its content with the Prosecutor's Office of the Russian Federation.

However, taking into account the practice of individual public authorities carrying out control (supervisory) activities, the risk-based approach is not always a working one (making it possible to carefully observe all the above principles and implement the necessary tasks) approach. And the developed indicators are not a working tool.

One of the executive authorities authorized to carry out control (supervisory) activities, which have lost the ability to form a plan for conducting control (supervisory) measures, are the bodies of Gostekhnadzor of the Russian Federation. It is the State Technical Supervision authorities of the Russian Federation that are an example of the "inoperable" risk-based approach.

The competence of the State Technical Supervision bodies of the Russian Federation in accordance with the Federal Law "On Self-propelled Machines and Other Types of Equipment" dated 07/02/2021 No. 297–FZ (hereinafter - Law No. 297) and Decree of the Government of the Russian Federation dated 09/23/2020 No. 1540 "On Approval of the Rules for the Implementation of regional State Supervision in the field of technical condition and operation of self-propelled machines and other types of equipment, attractions and amendments to some acts of the Government of the Russian Federation" includes:

- regional state control (supervision) in the field of technical condition and operation of self–propelled machines and other types of equipment (hereinafter - supervision of self-propelled machines);

- regional state control (supervision) in the field of technical condition and operation of attractions.

Taking into account the above, the state Technical Supervision authorities of the Russian Federation carry out two types of regional control (supervision). In our study, an analysis of the supervision of self-propelled vehicles will take place.

In accordance with the requirements of current legislation (Law No. 248, Resolution No. 336), the State Technical Supervision authorities of the Russian Federation, within the framework of supervision of self-propelled vehicles, carry out the following control (supervisory) measures (functions):

1. preventive work (aimed at stimulating conscientious compliance with mandatory requirements by all controlled persons, eliminating conditions, causes and factors that can lead to violations of mandatory requirements and (or) causing harm (damage) to legally protected values, creating conditions for bringing mandatory requirements to controlled persons, raising awareness of ways to comply with them) in in accordance with the annually approved program for the prevention of risks of harm (damage) to legally protected values, which includes:

- informing and advising controlled persons;

- conducting preventive visits to the places of economic activity of controlled persons;

- generalization of law enforcement practice;

- issuing warnings to controlled persons about the inadmissibility of violating mandatory requirements;

2. control and supervisory work without interaction with controlled persons (on-site examinations, monitoring compliance with mandatory requirements);

3. control and supervisory work with interaction with a controlled person (in coordination with the Prosecutor's Office of the Russian Federation, unscheduled on-site inspections, raid inspections, inspection visits, documentary checks should be carried out with the possibility of bringing controlled persons to administrative responsibility for violation of mandatory requirements in accordance with the Administrative Code of the Russian Federation).

However, as part of the supervision of self-propelled vehicles, only preventive work is an effective tool for carrying out control (supervisory) measures. This is due to the fact that compliance with mandatory requirements in the field of safe operation of self–propelled machines is inextricably linked with the establishment by an official of the State Technical Supervision authority of the Russian Federation (hereinafter referred to as the engineer inspector) of the fact of their operation at the present time. Article 9.3 of the Administrative Code of the Russian Federation "Violation of the rules or norms of operation of tractors, self-propelled, road-building and other machinery and equipment" allows to bring perpetrators to justice only if there is an operation fact in the objective side of the offense.

If control (supervisory) work without interaction (field surveys) is a controversial form of action due to the constant change in the location (movement) of objects of control (supervision) and the inability to determine the exact location (address) of the survey, then control (supervisory) work with interaction with a controlled person is not an effective way of control (supervision).

This is due to the fact that verification of compliance with mandatory requirements can only be carried out in relation to a self–propelled vehicle as an object of control, which is in operation at a given time by a controlled person or his representative (hereinafter referred to as the driver of a self-propelled vehicle). At the same time, the engineer-inspector cannot but interact with the driver of a self-propelled car. These circumstances are the very feature of the supervision of self-propelled vehicles carried out by the State Technical Supervision authorities of the Russian Federation.

A documentary check conducted by an inspection engineer in an office, or an on-site inspection, an inspection visit conducted at the place of actual activity by a controlled person (farms, offices of legal entities, production facilities, etc.) does not provide accurate confirmation of the fact of operation or non-operation of registered self-propelled vehicles available to the controlled person. The risk of misleading the engineer-inspector about the number of unused (non-working) self-propelled machines is extremely high, and there is no way (mechanism) to accurately determine the fact of operation in this area of control (supervisory) activity.

In accordance with article 13 of Law No. 297, the operation of self-propelled vehicles and other types of equipment is prohibited:

- in the presence of malfunctions and conditions, the list of which is approved by the Government of the Russian Federation;

- the owners of which have not fulfilled the obligation to insure their civil liability in accordance with the legislation of the Russian Federation;

- not registered with the state, as well as the operation of self-propelled vehicles and other types of equipment by citizens who do not have a tractor driver's license (tractor driver), or a temporary certificate for the right to drive self-propelled vehicles of the appropriate category, or a driver's license confirming the right to drive vehicles of categories "A", "B", "C", "D" or subcategories "B1", established by paragraphs two to five and thirteen of paragraph 1 of Article 25 of Federal Law No. 196–FZ of December 10, 1995 "On Road Safety", with the features established by parts 2.1 and 2.2 of Article 15 of Law No. 297, the certificate of registration of self-propelled cars and other types of equipment, certificates of technical inspection.

Considering that the essence of the risk-based approach consists in forecasting by an official of a control (supervisory) body the threat (danger) of harm to human life and health, their property, the environment, by an engineer-inspector of Gostekhnadzor bodies of the Russian Federation, such forecasting is impossible due to the specifics of the conditions and reasons for the violation of mandatory requirements by drivers of self-propelled vehicles.

From our point of view, determining the technical malfunction of a self-propelled vehicle at the time of its operation, checking whether the driver of a self-propelled vehicle has a complete package of necessary documents is possible only with the use of the special supervisory regime "permanent raid" available in the arsenal of Law No. 248 in accordance with Article 97.1.

By analogy with the activities of the traffic police authorities of the Russian Federation in the framework of control (supervision) in the field of road safety, we propose to introduce a provision in article 17 of Law No. 297 on the possibility of a "permanent raid" by the State Technical Supervision authorities of the Russian Federation.

We believe that the introduction of a "permanent raid" with the possibility of stopping and checking a certain list of documents from any self-propelled vehicle in the appropriate water area, terrain will allow the following control (supervisory) tasks of the State Technical Supervision authorities of the Russian Federation to be carried out:

- bringing to administrative responsibility at the place of commission of the offense those responsible for non-compliance with the mandatory requirements of drivers of self-propelled vehicles;

- obtaining reliable information about legal entities and individual entrepreneurs operating self-propelled vehicles in violation of mandatory requirements;

- encouraging the conscientious operation of self-propelled vehicles by controlled persons.

Thus, the control (supervisory) work of the Gostekhnadzor bodies of the Russian Federation, taking into account the Concept of CND and the "new philosophy" of the development of control (supervision) in the Russian Federation, will be based on two pillars:

1. Work with individuals (drivers of self-propelled vehicles) directly at the place of operation of self-propelled vehicles, using, in our opinion, an effective method of "constant raid";

2. Work with controlled persons (legal entities and individual entrepreneurs) as subjects of economic and business activities related to the operation of self-propelled vehicles as part of preventive work (regular preventive visits, consulting on issues of interest, etc.).

In this regard, from our point of view, it is time for the legislator to implement the provisions of paragraph 10 of Article 3 of Law No. 297. The Government of the Russian Federation should establish general requirements for the organization and supervision of self-propelled vehicles as soon as possible.

We also propose the structure of the future document:

I. General provisions;

II. Risk management of harm (damage) to legally protected values in the implementation of regional supervision;

III. Prevention of risks of harm (damage) to legally protected values;

IV. Implementation of regional supervision;

V. A special regime of federal supervision (permanent raid) and a mechanism for prohibiting exploitation;

VI. The results of the control (supervisory) event;

VII. Appeal against decisions of the authorized body of regional supervision, actions (inaction) of its officials;

VIII. Key indicators of the type of control and their target values;

IX. A list of mandatory requirements within the framework of regional supervision.

This regulatory legal act will be designed to offer the regional bodies of Gostekhnadzor of the Russian Federation unified forms and methods of control (supervisory) activities in the field of supervision of self-propelled vehicles.

We believe that the above proposals should form the basis of this document.

In conclusion, we propose to amend the current version of Article 9.3 of the Administrative Code of the Russian Federation and state its name, disposition and sanction in the following wording:

"Administrative Code of the Russian Federation Article 9.3. "Violation of mandatory requirements in the field of technical condition and operation of self-propelled machines and other types of equipment.

Violation of mandatory requirements in the field of technical condition and operation of self-propelled machines and other types of equipment, revealed during the implementation of state control (supervision) by bodies exercising regional state supervision in the field of technical condition and operation of self-propelled machines and other types of equipment, -

entails the imposition of an administrative fine on citizens in the amount of five hundred to one thousand rubles."

Our proposed revision will meet new realities and will allow, within the framework of a "permanent raid", to bring to administrative responsibility drivers of self-propelled vehicles that violate mandatory requirements.

Taking into account the above, the control (supervisory) activities of the State Technical Supervision bodies of the Russian Federation require a global reformatting in the context of the Concept of the CND and the moratorium. Our proposed amendments to the current legislation of the Russian Federation are designed to gently integrate the supervision of self-propelled vehicles into a new reality aimed at reducing the pressure of the state, as a power machine, on economic entities.

The establishment of general requirements for the organization and supervision of self–propelled vehicles (together with the procedure for conducting a "permanent raid") is an important step that will allow the State Technical Supervision authorities of the Russian Federation to carry out quality control (supervisory) work in compliance with the innovations dictated by the Ministry of Economic Development of the Russian Federation.