On the issue of the concept and classification of inspection activities in the Russian Federation

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

Currently, there is some uncertainty about the concept and classification of inspection measures carried out by law enforcement officers in relation to individuals, or objects and things with them, caused by both the lack of a unified terminology and the targeted component of the actions being carried out.

In some regulatory legal acts, there are provisions according to which inspection activities that differ in purpose have the same name, while in others, search activities that are similar in purpose are called differently. At the same time, some of the inspection activities have changed their terminology in different historical periods, without changing the purpose and nature of the action.

The scientific community has long had an understanding of this issue, as Sergeev M.V. and Dizer O.A. note in their works: "There is no systematization of legal norms in the current legislation providing for the conduct of inspection and inspection activities by police officers. The lack of an established procedure for their implementation is also a problem, since in some cases only the right of officials of internal affairs bodies (police) to implement them is fixed" ^{[1, p.39]}.

In order to resolve this situation, in our opinion, it is necessary to carry out the historical genesis of the concept and classification of inspection measures, starting from the 60s of the last century to the present, since it was during this period that the foundations of modern law were laid.

So, since the 60s, the main legal norm for conducting inspection activities in the activities of law enforcement agencies has been conducting a personal search. Such a norm regulating the procedure and objectives of its implementation was fixed in the Criminal Procedure Code of the RSFSR of October 27, 1960 (hereinafter referred to as the CPC of the RSFSR). Thus, according to Article 172 of the Criminal Procedure Code of the RSFSR, when conducting a criminal investigation, an investigator had the right to conduct a personal search only if there were sufficient grounds to believe that in any room or other place, or in the possession of any person, there were instruments of crime, objects and valuables obtained by criminal means, as well as other items or documents that may be relevant to the case. This provision did not provide for the possibility of its implementation by all law enforcement officers and was narrowly targeted in the framework of the criminal process. Which, in turn, no longer met the demands of the time.

With the adoption of the Fundamentals of the Legislation of the USSR and the Union Republics on Administrative Offenses (adopted by the USSR Supreme Council on October 23, 1980 No. 3145-X), such an inspection event as a personal search appeared (Article 33 "Administrative detention, inspection of things and seizure of things and documents"), however, the procedure and objectives of this event in this legal The act did not disclose, but only granted the right to conduct inspection activities within the framework of administrative proceedings ^{[2, p.17]}.

This rule of law was later consolidated in the RSFSR Code of Administrative Offences, approved by the Supreme Council of the Russian Federation on June 20, 1984, in which article 243, "Personal inspection and inspection of belongings," defined the grounds, objectives and procedure for such an event. The main purpose of the personal search, as at the present time, was to identify and seize items that serve as evidence of administrative offenses, and it was also an interim measure in administrative proceedings.

It should be borne in mind that with the adoption of the Charter of the patrol and guard service of the Soviet militia, approved by Order of the Minister of Internal Affairs of the USSR dated July 20, 1974 No. 200 (hereinafter referred to as the Charter of the CPSM 1974), another type of inspection measures was in effect – an external inspection. It should be clarified that it applied only to police officers on duty to protect public order. It was aimed at ensuring personal safety and was a precautionary measure when carrying out a number of tactical actions by Soviet police officers (delivery, detention, preparation of procedural documents, etc.).

In accordance with the provision, the Statute of the CPSM of 1974 extended not only to employees of the patrol and guard service of the Soviet militia, but also to other employees involved in the protection of public order, thereby being a measure of coercion used to ensure security when performing operational activities by police officers. It has also found its way into subsequent legal acts regulating the activities of law enforcement agencies to protect public order, such as the Charter of the Patrol Police Service of 1993 and the Charter of the Patrol Police Service of 2008.

Summarizing the above, it can be concluded that during the time period under review there were three legal norms providing for such inspection measures as a personal search, a personal search and an external inspection, which differ from each other both in purpose, nature and procedure.

A personal search, in turn, was an interim legal norm in the conduct of a criminal investigation and was conducted only by an investigator in the framework of a criminal case with the approval of the prosecutor. This procedure was strictly regulated by the criminal procedure legislation and required strict recording of all actions.

The personal search was an interim procedure for conducting administrative proceedings, the purpose of which was to identify and seize items that serve as evidence of administrative offenses, including the discovery and seizure of items prohibited for civil circulation. The conduct of this event already required fixed procedural procedures, the presence of two witnesses of the same sex, the maintenance of a personal inspection protocol, etc.

The external inspection was a security measure when law enforcement officers worked with the offender. Its main purpose is to find objects with which the detained or delivered offender could harm a Soviet police officer, himself or third parties. At the same time, it was not necessary to draw up any procedural documents, with the exception of a report.

Over time, other regulatory documents appeared, which included certain inspection measures. Thus, in accordance with the Order of the Ministry of Internal Affairs of Russia dated October 10, 1994 No. 6 "On measures to improve the road patrol Service and enhance its role in strengthening order in the field of traffic", paragraph 3.5 specified the right of an employee of the road patrol service (hereinafter referred to as a traffic police officer) to conduct a personal search, vehicle and belongings inspection in accordance with the procedure established by law.

Further, this norm was transferred to the order of the Ministry of Internal Affairs of Russia, Order of the Ministry of Internal Affairs of Russia dated April 20, 1999 No. 297 "On Approval of the Guidelines for the Work of the Road Patrol Service of the State Road Safety Inspectorate of the Ministry of Internal Affairs of the Russian Federation", in paragraph 6.5.2., according to which traffic police officers were given the right to conduct a personal search of persons, a search of their belongings, manual carry-on bags and baggage, if there are sufficient grounds to suspect them of committing a crime or an administrative offense, and if there is evidence that they are carrying weapons, ammunition, explosives, explosive devices, narcotic drugs or psychotropic substances, produce them in accordance with the procedure established by federal law.

At the same time, in the section "Ensuring personal security measures", the traffic police officer was instructed, in the event of the discovery of wanted vehicles or persons suspected of committing a crime, to take the necessary precautions, depending on the specific situation, when conducting a vehicle search or a personal search of detainees in order to identify and seize weapons (paragraph 20.4).

This procedure was an analogy to an external inspection, as a personal security measure for a traffic police officer. At the same time, in the Administrative Regulations of the Ministry of Internal Affairs of Russia for the state function of exercising 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 dated August 23, 2017 No. 664 (hereinafter referred to as the Administrative Regulations of the Traffic Police), the employee regulated the right to conduct a personal search within the framework of state supervision, 6.10 of the Administrative Regulations of the Traffic Police, "officials in the exercise of federal state supervision have the right to inspect vehicles in accordance with the procedure established by the legislation on administrative offenses" ^{[5, p.100]}.

A separate inspection measure prescribed to law enforcement officers was the procedure for examining the belongings and body of a person in respect of whom such a preventive measure as detention had been chosen. This inspection event was conducted by security guards and was a security measure during the detention of accused and suspected criminals.

Thus, in accordance with the USSR Law "On Approval of the Regulations on Pre-trial Detention" dated July 11, 1969, No. 4075-VII, article 7 provided for a provision according to which "persons detained as a preventive measure are searched, fingerprinted and photographed; their belongings, and Also, transfers and parcels addressed to them are subject to inspection, and correspondence is subject to censorship." In this case, the main purpose of the event was to search in places of pre-trial detention for prohibited items (money, valuables, etc.).

This procedure is reflected in the content of Federal Law No. 103-FZ of July 15, 1995 "On the detention of suspects and those accused of committing crimes," but in a new version. In accordance with article 34, it became known as a full search and an incomplete search. At the same time, unlike a personal search regulated by the Criminal Procedure Code of the Russian Federation, this event did not require the approval of an investigator or a court.

Analyzing the dynamics of the formation and development of the concept and varieties of certain inspection measures, it can be noted that with the loss of legal force of some regulatory legal acts or their modification, updating, the terminology itself has changed.

At the same time, the external inspection, regulated by the Charters of the CPSM of 1974 and 1993, since the adoption of the following Charter of the CPSM of 2008, approved by the Order of the Ministry of Internal Affairs of Russia "Issues of organizing the activities of combat units of the patrol and guard service of the public Security police" dated January 28, 2008 No. 80, in paragraph 266 turned into an external inspection.

The appearance of the letter "d" in the terminology changed the name of the external inspection to an external inspection, which led to some confusion with the grounds and procedure for its conduct, since a similar "personal inspection", which was regulated by both the Administrative Code of the Russian Federation and the subsequent Administrative Code of the Russian Federation, required police officers to comply with certain requirements for its conduct.: the presence of witnesses of the same sex, the preparation of an appropriate protocol, etc., and also did not meet the goals and objectives of the inspection event.

At the same time, in the new Instruction of the patrol and guard service of the police, approved by Order of the Ministry of Internal Affairs of Russia dated June 28, 2021 No. 495 (hereinafter referred to as the Instruction of the CPSP), this norm is not included in the content of the document at all. However, the chapter "Security measures", in paragraph 170, contains the possibility of conducting inspection measures: "When boarding the patrol car of the delivered persons, the police officer takes precautions to exclude the possibility of injury, attacks on police officers and damage to property."

This provision allows for an examination of the body and parts of clothing of the person being delivered in order to detect hidden objects with which he may harm police officers or himself. But at the same time, the term external inspection (inspection) is not used.

Currently, this "External inspection" remains only in the content of the Order of the Ministry of Internal Affairs of Russia "Instructions on the organization of physical training in the internal affairs bodies of the Russian Federation" approved by the Order of the Ministry of Internal Affairs of Russia dated July 1, 2017 No. 450, while this order regulates only the tactical rules and the sequence of external inspection ^{[6, p.121]}. Therefore, it can be stated that there is currently no fixed legal norm for conducting an external inspection in modern legislation.

An echo of the earlier external inspection is the norm contained in the Federal Law "On Police" dated February 7, 2010 No. 3-FZ (hereinafter referred to as the Federal Law "On Police"), in paragraph 18 of Article 13, according to which the police have the right "to carry out in order to ensure the safety of citizens and public order together with the organizers of public and at mass events, a personal inspection of citizens and their belongings when passing through the territory of structures, areas or public places where such events are held, with the use of technical means, if necessary."

It can be noted that the right provided for by law is limited to the possibility of ensuring security only during public and mass events, and does not apply to ensuring public order in general.

This norm can also be traced in paragraph 4 of Article 16 of the Federal Law "On Police" "Cordon (blocking) of territories, residential premises, buildings and other objects", according to which police officers within the boundaries of the cordon carry out a personal inspection of citizens and their belongings ^{[3, p.101]}.

The Federal Law "On Police" also contains the norm contained in paragraph 6 of Article 14 "Detention", requiring police officers to carry out search measures against detained persons – "detained persons, their belongings and documents, as well as their vehicles are subject to inspection" ^{[4, p.164]}. But this article does not disclose which type of inspection is carried out – personal or external.

The above makes it possible to consolidate the terminology of inspection as a security measure for the protection of public order in various conditions of service.

At the same time, other regulatory legal acts began to appear regulating the possibility of conducting inspection activities by police officers. Thus, approved by the Order of the Ministry of Internal Affairs of Russia dated April 13, 2021 No. 212 "The procedure for delivering persons under the influence of alcohol, drugs or other toxic intoxication to medical organizations or specialized organizations or to the office premises of territorial bodies or police units" (hereinafter referred to as the Delivery Procedure), in paragraph 19 established that "before by placing persons in a state of intoxication in the interior of a vehicle, if necessary, in order to detect weapons in such persons, as well as other items that can be used as weapons, police officers organize (conduct) a personal search and an inspection of items in the possession of an individual, in accordance with the procedure provided for by the legislation of the Russian Federation on administrative offenses." ^{[6, p.122]}.

It should be borne in mind that conducting a personal search of persons who have lost the ability to move independently or navigate the environment is difficult, because the person in respect of whom this inspection is being carried out will not be able to comply with its procedure in accordance with the Administrative Code of the Russian Federation (familiarization with rights, signing a protocol, obtaining a copy of documents), which causes difficulties when implementation of such a norm. In the context of what was said in the Delivery Procedure, the concept of "external inspection" was replaced by "personal inspection", based on the objectives of the event, its main purpose is to ensure personal safety, which is typical for inspection activities.

Based on the above, it can be concluded that in this document, the legislator, meaning carrying out measures to ensure personal safety by searching for objects that pose a danger to citizens who are intoxicated, mistakenly used the term "personal search" instead of "external inspection", thereby only confusing the situation with this type of event.

An even more ambiguous situation has developed in the regulation of inspection activities conducted by employees of the Troops of the National Guard of the Russian Federation (hereinafter – Rosgvardiya).

In accordance with the Federal Law "On the Troops of the National Guard of the Russian Federation" dated July 3, 2016, No. 226-FZ, Article 9 "General Powers of the National Guard Troops", Rosgvardiya employees, while ensuring access control at protected facilities, are instructed to "inspect and (or) inspect citizens visiting these facilities, and inspect those who are with them." items, inspection and (or) inspection of vehicles". The simultaneous use of two terms "inspection" and "inspection" when carrying out an essentially identical event was the result of a general uncertainty in the regulation of the concept and types of inspection activities.

Thus, the consequence of the current situation is the lack of a unified approach to the concept of "screening measures", which creates certain difficulties in their application by police officers and other law enforcement agencies in carrying out operational activities.

Based on the above, it seems to us necessary to amend certain regulatory legal acts or adopt a new regulatory legal act, in which it is necessary to pay attention primarily to the division of powers during the relevant inspection activities, as well as to their objectives and the procedure as a whole.

For example, measures related to ensuring security, both personal and public, should be referred to as an inspection (personal inspection, external inspection of citizens being brought or detained, as well as a complete and incomplete inspection of persons in custody, inspection of citizens or vehicles for access to a protected area).

Measures carried out for the purpose of detecting instruments of commission or objects of an administrative offense, including objects prohibited for circulation in the Russian Federation (weapons, ammunition, narcotic drugs, etc.), should be referred to as an inspection (personal inspection, personal belongings, vehicle inspection, etc.)

Measures carried out for the purpose of detecting and seizing objects, documents and valuables relevant to a criminal case by examining his body, clothing and related belongings of persons suspected or accused of a crime should be referred to as a search (for example, a personal search, a search of vehicles, premises, etc.).

This approach, which is legally fixed in one legal document, in our opinion, will contribute to a more effective exercise of their powers by law enforcement officers.