The procedure for applying administrative measures. Administrative suppression (concept and types of preventive measures)

Measures administrative suppression(termination) are compulsory measures that are used by authorized internal affairs bodies, their officials, as well as other authorized entities (judges, representatives of bodies local government, special public formations, etc.) to stop illegal behavior, prevent, eliminate its harmful consequences, to create conditions for the possible prosecution of perpetrators administrative responsibility.

The purpose of applying administrative restraint measures is:

Suppression of violations legal norms (administrative offenses, crimes and objectively illegal acts);

Preventing the commission of new offenses;

Creating conditions for further bringing the perpetrators to justice;

Elimination of harmful consequences of the offense;

Restoring the previous, lawful state.

When using administrative measures, authorities government controlled must strictly follow the principle of legality. The application of these measures requires appropriate (separate in each case) administrative procedural registration in established by law forms and order. The principle of legality is ensured by systematic control by higher authorities And officials, prosecutorial supervision, administrative and judicial appeal, other methods established by law.

Preventive measures are closely related to preventive measures and administrative penalties, which they often precede, since they provide the conditions for their application.

Unlike administrative preventive measures, preventive measures are applied in connection with the commission of an offense and to the subjects who committed them. And their difference from administrative penalties is that measures of administrative restraint do not contain the element of punishment of the person to whom they are applied. Carrying out, along with an educational, punitive function, an administrative penalty in its action in time is directed to the past and is retrospective. Administrative measures of restraint, as a rule, are aimed at the present and therefore are able to independently and quickly resolve a conflict situation, in particular, to forcibly suppress offenses.

Administrative measures of restraint are very heterogeneous and differ from each other in many ways. However, it is advisable to carry out their main classification in accordance with the nature of the scope of application. According to this criterion, coercion is divided into two groups - measures of general and special purpose.

General administrative measures, which are used in everyday practice by many law enforcement agencies, are mainly divided, based on the purpose of their use, into independent (operational) and auxiliary (supporting).

1. Independent (or operational) coercive measures are characterized by the fact that they quickly resolve a conflict situation, that is, the conflict is often completely resolved. To a certain extent, it can be argued that these measures (at least most of them) stand on the verge of the actual preventive measure and administrative penalties. For example, an official warning about the inadmissibility of illegal behavior is very similar in nature to such an administrative penalty as a warning.

Demand to stop illegal behavior. Law enforcement officials, various government inspectors if such behavior is detected. The basis for applying this preventive measure can be any offense, including a crime. The requirement can be expressed orally, or also issued in the form of a written instruction (order). It is legally binding, and failure to comply with this requirement is grounds for other coercive measures.

Bringing in persons evading appearance at various government bodies and institutions (court, prosecutor's office, health care, internal affairs, military commissariats, etc.), is a reaction to the failure of citizens and officials to fulfill the legal obligation to appear when called, a means of ensuring the fulfillment of this obligation. The arrest is carried out by the police and consists of forcibly delivering a person to the appropriate body or institution. That is, this is the removal of him from his place of stay and escort to his destination, combined with the use of mental or physical coercion.

Administrative detention not related to the implementation of criminal proceedings administrative offenses, the police have the right to carry out in accordance with paragraph 5 of Art. 11 of the Law of Ukraine “On the Police”. In particular, we are talking about detention with detention in specially designated premises for: minors under the age of 16 who were left without guardianship, as well as minors who have committed socially dangerous acts and have not reached the age of criminal responsibility; persons who disobeyed the lawful demands of a police officer; persons suspected of vagrancy; persons who evade compliance with a court order to send for compulsory treatment for chronic alcoholism or drug addiction; military personnel who have committed acts that fall under the elements of a crime or administrative offense; persons with signs of severe mental disorder and therefore create a real danger for themselves and others.

Registration and an official warning about the inadmissibility of illegal behavior are applied by internal affairs bodies to persons who systematically violate public order, if these violations are minor in nature and do not entail legal liability(family conflicts, heavy drunkenness, domestic disturbances, etc.). A warning is to warn a person about the inadmissibility of illegal actions and the consequences of their repetition or continuation. A protocol is drawn up regarding the issuance of an official warning to the person. An official warning cannot be applied in cases where there are sufficient grounds to bring a person to administrative or even criminal liability.

Stopping vehicles. This measure can be carried out by every police officer, although in practice it is more often used by employees of the State Automobile Inspectorate. The grounds for applying this measure are provided for in paragraph 21 of Art. 11 of the Law of Ukraine “On the Police”, according to which the police have the right to stop vehicles in case of violation of the rules traffic, existing signs indicating a technical malfunction of the transport or contamination by it environment, as well as if there is evidence that it is being used for an illegal purpose. Failure by the driver to comply with the request of a police officer to stop the vehicle constitutes an administrative offense provided for in part one of Art. 122 2 KUoAP.

According to paragraph 4 of Art. 10 of the Law of Ukraine “On the State Control and Audit Service in Ukraine”, the bodies of this service have the right to seal cash registers and cash premises, warehouses, archives in the event of violations of the legislation on financial matters. Executive authorities of general competence and local governments may limit, temporarily prohibit (stop) or terminate the use of atmospheric air as raw materials for primary production purposes in case of violation of permit conditions and regulatory requirements (Article 32 of the Law of Ukraine “On the Protection of Atmospheric Air”).

Many other government bodies also have similar powers - the sanitary-epidemiological service, veterinary medicine, nature conservation, etc..

2. Measures to ensure proceedings in cases of administrative offenses constitute a special group of measures of administrative restraint, the specificity of which lies in the fact that they are not independent, but additional measures impact: their use ensures the creation of conditions for bringing the offender to administrative responsibility (in some cases, criminal liability).

Delivery of the offender to the police, public law enforcement center, placement in the executive committee of the village, village council, Staff only paramilitary security. Applies in accordance with Art. 259 of the Code of Administrative Offenses in order to suppress offenses, establish the identity of the violator and draw up a protocol on an administrative offense if it is impossible to draw it up on the spot, if drawing up a protocol is mandatory. Delivery constitutes forced escort of the offender to the appropriate premises. Police officers, officials of transport authorities, bodies exercising control over the protection and use of natural resources, members of public protection groups public order and public conservation officers.

Administrative detention. As a measure to ensure proceedings in cases of administrative offenses, it consists of a forced short-term restriction of the offender’s freedom of action and movement. Administrative detention can be applied not for any administrative offenses, but only for some of them listed in Art. 262 KUoAP ( petty hooliganism, malicious disobedience, violation of border regulations, etc.), and only by the authorities specified in this article. Administrative detention, as a rule, cannot exceed three hours. Longer periods of administrative detention can only be established by legislative acts.

There must be a protocol regarding administrative detention. His relatives are immediately notified of the place of stay of a person detained for committing an administrative offense, and, at his request, also the head of the relevant enterprise, institution, organization or body authorized by him.

Personal search and inspection of belongings. By the nature of the object of influence, these are different coercive measures, however, in content they do not differ from each other. A personal search is carried out by an official of the same sex as the offender and in the presence of two witnesses of the same sex. An inspection of things can be carried out, as a rule, in the presence of the person in whose ownership or possession they are. The law does not require mandatory participation witnesses. In urgent cases, things may be searched in the absence of the owner or possessor, but the participation of witnesses in such cases is mandatory. The inspection is documented in a special protocol or an entry is made about it in the protocol on an administrative offense or in the protocol on administrative detention.

Seizure of things and documents. It can take place after the application of two previous measures - administrative detention or inspection. It consists of the forced termination of possession (and, as a consequence, the use and disposal) of a certain object or document by a person who has committed an administrative offense.

Subject to confiscation are things that are an instrument or the direct subject of an offense, or may be material evidence in the case. A separate protocol is drawn up about their seizure or an entry is made in the protocol on an administrative offense, administrative detention or inspection of things. For a person who has committed an administrative offense in the performance of official duties, confiscation of things (as well as personal search and inspection of things) is applied only in urgent cases. Art. 265 of the Code of Administrative Offenses provides for the specifics of seizure individual species things and documents, their seizure from individuals and the procedural registration of the seizure of certain things.

Removing drivers from driving vehicles and examining them for intoxication. According to Art. 266 of the Code of Administrative Offenses, these measures are applied in cases where there are sufficient grounds to believe that drivers are in such a state. The decision to conduct a search is made by police officials. A person’s evasion from passing it constitutes an administrative offense under Art. 131 KUoAP.

Special preventive measures should be defined as a set of exceptional extraordinary administrative measures. The special nature of these measures determines the specifics of the grounds for their use. These are, as a rule, urgent cases when it is necessary to stop illegal actions that are dangerous to the life and health of people.

In addition, special-purpose measures are used when all other forms of preliminary influence on offenders have been used and have not produced the desired results. Therefore, the use of force, special means and weapons must be preceded by a warning about the intention to use them, if the situation allows it. In cases where there is a real danger to human life or health, these measures may be applied without warning.

These measures are also called special because they are aimed directly at the person of the offender and are capable of causing him some physical harm and even taking his life. In this regard, the law requires law enforcement officials to use force to the extent necessary and only when it is impossible to avoid its use. At the same time, the possibility of causing harm to the health of the violator should be minimal.

The use of force against elderly people, pregnant women, disabled people and minors is permitted only in cases of their committing a group or armed attack or armed resistance to law enforcement officers. If the use of special preventive measures causes harm to citizens, the necessary assistance must be provided as soon as possible.

Physical measures. They are used to suppress offenses or overcome opposition legal requirements police or other law enforcement agencies.

“Special means” are a variety of technical means of influencing the offender, and in some cases also on vehicles and other things in order to eliminate the illegal situation. The grounds, procedure for use, as well as types of special means are established, in addition to the Law of Ukraine “On the Police”, by the Rules for the use of special means in protecting public order in Ukraine and the Rules for the use of special means by military personnel Military service law and order in the Armed Forces of Ukraine during the performance of official duties.

Firearms. It can be used by law enforcement officials as last resort in clearly defined cases. In particular, the Law of Ukraine “On the Police” (Article 15) established six such grounds:

1) to protect citizens from attacks that threaten their life and health, as well as to free hostages;

2) to repel a group or armed attack on a police officer or members of his family or another attack if their life or health is in danger;

3) to repel attacks on security facilities, convoys, residential premises of citizens, premises of state and public enterprises, institutions and organizations, as well as their release in case of capture;

4) to detain a person who was caught committing felony and trying to hide;

5) to detain a person who shows armed resistance, tries to escape from custody, as well as an armed person, threatens to use weapons and other objects that threaten the life and health of a police officer;

6) to stop a vehicle by damaging it, if the driver, by his actions, creates a threat to the life and health of citizens or a police officer.

Employees of other law enforcement agencies may also use firearms on the same grounds.

The list of administrative restraint measures we have considered is not exhaustive, since it is not clearly defined either at the legislative or doctrinal level. However, the prospect of solving this problem in the course of further codification of the administrative legislation of Ukraine is being actively discussed in scientific circles.

Administrative suppression - activities authorized bodies aimed at stopping illegal actions. The means and measures used in this case make it possible to create the necessary legal and organizational conditions for collecting evidence and further bringing the perpetrators to justice. The purpose of administrative suppression is also to ensure the rule of law in various areas of public administration.

Relevance of the issue

Studying the characteristics of administrative restraint measures and their problems practical application has the most important methodological significance for administrative law in general and the activities of executive bodies in particular. The fact is that the results obtained contribute to solving specific and general theoretical issues, creating prerequisites for improving regulatory framework, conditions for more effective protection of freedoms, rights and interests of society and the state. In this article we will take a closer look at the features administrative warning and suppression.

General information

The concept of “administrative suppression” is absent in the Code of Administrative Offences. The definition of preventive measures is also not disclosed. Means and methods for stopping illegal actions differ in a number of specific features. Their internal content, order and grounds for application, legal consequences allow you to highlight them in separate group, into an independent law enforcement institute.

Proceedings for the application of administrative restraint measures are part of the process aimed at resolving specific situations. This process includes various procedures. It is during their implementation that administrative measures are used.

Administrative preventive measures: definition, signs

Analysis of norms and law enforcement practice allows us to expand on the concept of “preventive measures”. By them should be understood legal means and methods of physical and mental pressure used by law enforcement officers to stop objectively illegal, punishable acts at the time and place of their commission. The use of administrative measures presupposes direct intervention in the actions of the perpetrators.

Classification

In theory, all measures are divided into two types. Administrative suppression can be carried out by general or special methods and means.

Among the first are:

Demand to stop illegal actions, including those that interfere with the exercise of powers by police officers.
Removal from driving a vehicle.
Prohibition on operating a vehicle.
Vehicle detention.
Prohibition on carrying out activities.
Seizure of objects, things, substances.

Administrative suppression can be carried out by applying:

Physical strength.
Special equipment
Firearms.

Such measures are considered special.

Demand to stop illegal activities

This type of administrative suppression involves mental influence on the offender. Law enforcement officers may demand that a citizen or official stop illegal actions, including those that interfere with the performance of their official duties, the commission of legal actions by deputies and candidates for deputies, officials of local and state power, representatives of public organizations.

When applying this method of administrative-legal suppression, it is not allowed to diminish the dignity of the offender. Law enforcement officials are required to follow the provisions of Part 1 of Article 21 of the Constitution. It stipulates that the state is the guarantor of the protection of personal dignity. Its disparagement is not allowed on any grounds. It follows from this that, when making a demand to stop an unlawful act, employees should not express it in an offensive manner. This order must be followed regardless of the severity of the violation committed, the identity of the perpetrator, or other similar circumstances.

Removal from driving a vehicle

This measure is applied to citizens who drive vehicles while intoxicated or in the absence of the necessary documents.

Removal from driving a vehicle is stated in paragraph 21 of Art. 13 and paragraph 14 of Art. 12 Federal Law "On Police", as well as in the Code of Administrative Offenses in parts 1-5 of Art. 27.12. This measure is valid until the reasons for which it was applied are eliminated.

Upon the fact of suspension, a protocol is drawn up, a copy is given to the offender.

Prohibition on vehicle operation

Law enforcement officials have the right to limit the ability of citizens to operate vehicles if they are found to have defects that pose a threat to traffic safety. When applying this measure, registration plates must be removed.

Vehicle detention

This measure is applied when managing transport:

A driver who does not have documents required by traffic regulations.
With obviously faulty coupling device, brake system, steering mechanism.
A citizen who does not have the right to drive a vehicle or has been deprived of such a right.
The person is intoxicated.
Violating the rules of stopping/parking on the roadway and creating obstacles to the movement of other vehicles.

Law enforcement officers also have the right to detain a vehicle if the driver refuses to undergo a medical examination for intoxication.

A protocol on the application of this measure is drawn up.

The legislation also provides for the detention of vehicles that are wanted. In this case, the driver is removed from driving and using the vehicle, and the vehicle itself is moved to the impound lot.

Seizure of items restricted or prohibited for circulation

This measure applies to objects of the permitting system. To perform their duties, law enforcement officials are properly empowered to control the circulation of award, service and civilian weapons, ammunition, ammunition, service weapons that are in temporary use by organizations and citizens, as well as narcotic and psychotropic substances. The list also includes toxic compounds.

Special measures

They are means and methods of physical (direct) influence on citizens, aimed at preventing the commission of illegal actions, overcoming opposition, eliminating a threat to security, or forcing them to carry out legal duty. Special measures can be applied not only to people, but also to animals and physical items. The key feature that characterizes them is that each of them is a specific violent method of influencing the offender. The list of special measures given above is not closed.

Application specifics

The main regulatory act providing for the powers of law enforcement officials to use physical methods of influence on violators is Federal Law No. 3. According to it, a police officer has the right to use special means personally or as part of a group (unit) in situations and in the manner established by this law and others legal acts.

It must be taken into account that the use of non-lethal weapons, which are included in the number of special means, despite its name, can lead to fatal outcome or damage to health of varying severity. Taking this into account, Federal Law No. 3 enshrines the provision according to which an employee law enforcement agency is not held liable for harm caused by his use of special means if it was carried out on the grounds and according to the rules established by law.

Cases in which a police officer can use special means are provided for in Part 1 of Article 21, Parts 1 and 2 of Art. 23 Federal Law No. 3.

Important point

Of particular importance in terms of assessing the legality of damage resulting from the use of special means is the provision established by Part 3 of Article 19 of Federal Law No. 3. In accordance with it, when using special means, an employee must act taking into account the situation, the degree and nature of the danger of the violator’s actions, and the strength of resistance which he provides. At the same time, the police officer must try to minimize any harm.

This norm regulates the behavior of an employee when he uses physical force, firearms or special equipment. To a certain extent, it directs him to take actions that are most appropriate not only to the danger that threatens, but also to the circumstances. In other words, this provision obliges the employee to take into account the current situation.

When assessing the conditions in which preventive measures are applied, factors that can affect the balance of power between the defender and the attacker should be taken into account. We are talking, in particular, about the number of violators, their physical development, age, whether they have weapons, time, and place of the event.

When assessing an employee's desire to minimize harm, the correct conclusion will depend on the answers to a number of questions. In particular, it is necessary to establish whether he had a real opportunity to effectively suppress illegal actions in another way, and, if so, for what reason he did not take advantage of it. It is necessary to evaluate the actions of an employee from the point of view of not only the legality, but also the appropriateness of his behavior in specific circumstances.

A police officer has the right to use physical force and combat techniques if non-force methods do not allow him to properly perform job responsibilities at:

Suppression of administrative violations.
Delivery of persons who have committed illegal actions to the office premises of the police department.
Overcoming resistance or opposition to the legitimate and reasonable demands of an employee.

Physical force can be used in all cases in which federal law allows the use of special equipment or firearms.

Criminal liability of police officers

Special means are used by employees as a response to the actions of a person who has committed or is committing an offense or a particularly dangerous crime. It should be taken into account that the actions of the police officer himself, causing harm to the health of the offender and falling under the signs of an act enshrined in the Criminal Code, when protecting against socially dangerous attacks, are regulated by the provisions of Art. 27 of the Criminal Code necessary defense, and when detaining a suspect - Art. 38 of the Code. The Criminal Code also contains a provision on emergency. Its provisions also regulate the actions of employees when causing harm to the interests of citizens protected by criminal law.

House arrest

This measure was enshrined in domestic criminal legislation relatively recently. House arrest involves the physical isolation of a citizen from society. This measure is applied on the basis court decision without the consent of the suspect himself and the authorities authorized to ensure compliance with the restrictions established for the arrested person.

The location of the person must coincide with the place of his permanent residence and the location of his personal property.

The essence of house arrest is to restrict freedom of movement. Accordingly, a citizen is prohibited from leaving his place of residence without the consent of the investigator.

At the same time, the legislation provides certain guarantees for the suspect. In particular, the rules do not allow restrictions procedural rights persons to participate in trial, investigative and other activities carried out as part of the proceedings.

With house arrest, freedom of movement is more limited than with a written undertaking not to leave. The court in its decision may prohibit leaving the home permanently or at a specific time, visiting any places, going out unaccompanied, etc.

Problems in implementing the measure

At permanent residence a citizen at home, certain difficulties arise. It is necessary to solve 2 problems: providing food and staying outdoors.

The second problem arises when a person lives in an urban environment (in an apartment or room). In such a situation, it is necessary to organize his walks accompanied by police officers. The duration of exposure to air is at least an hour a day.

If a citizen lives alone, it may be possible to visit a grocery store while walking. You can also provide for their home delivery at the suspect’s expense.

By general rules, passport of a citizen placed in custody or sentenced to imprisonment, is confiscated and added to the case materials. After release, the document is returned. For persons placed under House arrest, there are no grounds for confiscating your passport. The fact is that this measure is not detention.

A citizen under house arrest cannot perform his labor functions (if he cannot work from home). At work, he is considered absent for valid reasons, but he is not paid a salary.

The court may prohibit a citizen from communicating with certain persons. Information about them must be indicated in the decision on the application of a preventive measure. The relevant persons are prohibited from visiting the citizen during the entire period of his stay under arrest.

As a type of administrative-legal coercion, administrative restraint measures have all of its characteristics, but they also have their own, purely intraspecific characteristics. Their peculiarity lies in their intended purpose and in the very essence of the measures.

The purpose of suppression is to immediately stop the illegal act and prevent new ones. It must be prompt, and therefore is often carried out in conditions of a lack of information about the situation and the nature of the unlawful act.

The actual basis for suppression is an offense, a guilty illegal act. But preventive measures are also used to stop socially dangerous actions committed by persons under 16 years of age, that is, of administrative and tortious age, as well as by those who are insane. On the other hand, placement in a sobering-up center, the use of firearms and other means of administrative restraint can be used in connection with crimes. Thus, the range of grounds for suppression is wider than that of administrative liability. Administrative measures of restraint are caused by a real situation in which illegal behavior is present and manifests itself openly. In contrast to administrative and preventive measures, which are aimed at preventing offenses, for example, special supervision over separate categories previously convicted persons, administrative measures stop specifically occurring actions as phenomena of the material world. In this regard, it is hardly true that the “office” announcement of an official warning to a person to stop an antisocial lifestyle is also a measure of administrative restraint.

This feature is closely related to another: a wider range of subjects against whom administrative measures of restraint can be used. They can be applied to persons under sixteen years of age, and to the insane, and to persons with immunity (deputy, diplomatic), and to military personnel, to employees of the Ministry of Internal Affairs when they commit violations for which they may be subject to disciplinary liability.

Preventive measures are used both in the interests of society, the state, and in the interests of the offender himself. Thus, placing an offender who is in a highly intoxicated public place in a medical sobering-up station protects him from possible robbery, and sometimes “at low air temperatures” protects him from loss of health and freezing. The purposes of providing medical care compulsory treatment is used. The authoritative cessation of antisocial activity makes it possible to prevent actions and events that would aggravate the responsibility of the perpetrator.

Administrative measures of restraint are always an instant reaction of an administrative authority to illegal actions and are characterized by a sharp interference in the organizational, physical and property aspects of the life of the subject. As L.L. points out, for example. Popov: “...almost impossible in every possible case application of administrative measures to prove the legitimacy of the requirement on which coercion is based.” In this regard, notes A.V. Seryogin, the norms establishing these coercive measures are addressed not to the persons in respect of whom they are applied, but to the bodies and officials who implement them.

Administrative measures of restraint are associated with direct interference in the activities of the subject, which in most cases makes it possible to actually decide his physical ability to act. It is no coincidence that in the group of administrative measures called the Law “On the Police”, only one measure - the requirement to stop illegal behavior - is devoid of material (physical) impact. The arsenal of preventive measures is very diverse: from demands to stop illegal behavior to the use of weapons. In essence, these can be measures of mental (the threat to use coercive means), material or physical influence, including the use of technical (special) means and weapons, as well as operational actions related to personal, organizational or property restrictions, thanks to the commission of which the offender is deprived of the opportunity to continue the offense, is encouraged to carry out legal duties.

Thus, this feature of administrative measures, namely the violation, if necessary, of the physical integrity of citizens committing antisocial unlawful acts, makes it possible to distinguish them from punitive sanctions. If the list of the latter is clearly established by law, then the list of preventive measures contained in regulations cannot be considered exhaustive. Subject to their qualified application, preventive measures are capable of independently, without connection with other measures of administrative coercion, to fully realize the legal purpose inherent in them. In contrast to measures of administrative restraint, the implementation of other measures of administrative coercion, for example, administrative penalty, often requires the use of other coercive means, namely of an administrative procedural nature. In many cases, preventive measures are applied directly on the basis of the fact of a violation without issuing written acts, since the need to urgently interrupt illegal actions excludes such a possibility. Legal fact, entailing coercion, here is the violation itself, to stop which the official takes certain actions (uses a baton, weapon, etc.). But we should not forget that they are also legal acts of the executive branch. Thus, the use of administrative measures is associated with a negative expression of will specific person and does not require a preliminary study of the form of guilt, as well as the presence of guilt as mandatory condition their applications.

For the application of administrative measures, the fact of unlawful behavior itself is important, and not its reasons, the study of which is fully possible only in the course of resolving the issue of bringing a person to legal liability. In this regard, the object of coercive influence ultimately turns out not to be the person himself with his diversity of social connections and psychological states, but only his behavior as an object. For comparison, for example, we can say that the object of influence of penal measures (some of the norms of the regime of detention, material and living conditions) is the personality of the convicted person in all its diversity.

Having analyzed the above-mentioned features of administrative restraint measures, which clearly distinguish them from other measures of administrative and legal coercion, I would like to highlight some more intraspecific features that allow us to reflect in more detail the essence of administrative restraint.

The peculiarity of measures of administrative restraint lies in the unique manifestation of the objective connection “illegal action - administrative coercion,” which consists in the simultaneous, one-time existence of elements of this system. In contrast, the implementation, for example, of such administrative coercive measures as administrative penalties, are characterized by a more or less significant period of time from the moment the offense was committed.

Administrative measures of restraint have a small circle of subjects of their application. Moreover, the stronger the legal restriction that one or another measure of administrative restraint can cause, the narrower the circle of officials authorized to use them, and the higher the requirements for them vocational training. It is hardly possible, given the exceptional nature of such values as life and health, to agree with the judgment that measures of administrative coercion are less significant in their force and severity than measures of criminal influence. This statement is true in relation to this type of measures, such as administrative penalties, when we are talking about types of legal liability, criminal and administrative.

Taking into account all the mentioned signs under administrative measures, in our opinion, should be understood legal means and methods of coercive influence regulated by the norms of administrative law, aimed at immediately stopping a really and openly existing illegal situation at the place of its discovery through the direct intervention of a subject of administrative power vested special powers, in the activities of the offender, as well as those used to create opportunities for the subsequent bringing of the offender to legal responsibility.

By identifying measures of administrative restraint as a separate group among other measures of administrative and legal coercion, different authors define their range in different ways. At the same time, depending on the position of the author, measures of administrative restraint sometimes include such coercive measures as special administrative supervision, inspection of hand luggage and baggage, bringing to the police, as well as an official warning. It is obvious that these measures of administrative coercion are either entirely aimed at preventing possible offenses, or at ensuring proceedings in cases of offenses. IN the latter case they have the purpose of directly collecting evidence and are measures of administrative procedural support, the need for isolation of which into an independent group of administrative coercion measures is spoken by many authors.

Administrative measures. The essence of such measures, despite their diversity, is the forced cessation of illegal actions (activities) of citizens, officials, organizations that violate established order.

The importance of these measures in the system of law enforcement means is especially great, since in the course of their application the most common offenses - administrative offenses - are suppressed, and the possibility of bringing violators to justice is ensured. They can also be used to stop criminal activities. Administrative measures are one of the effective means of combating crime.

Administrative measures of restraint are a means of protecting public relations from danger, regardless of whether it arose as a result of an offense or another act or event.

The use of preventive measures is determined by the need to quickly and effectively stop various types of attacks on personal safety, the rights and freedoms of citizens, and the interests of state and public organizations.

Various administrative measures can be grouped into several types. In particular, these include measures:

1) applied directly to the person of the offender (demand to stop unlawful behavior, direct physical impact, administrative detention and delivery to the police, etc.);

2) property nature(seizure of firearms, demolition of unauthorized buildings, etc.);

3) of a technical nature (prohibition of the operation of faulty vehicles, suspension of the work of enterprises due to violation of safety regulations, rules fire safety, prohibition or restriction of repair and construction work on streets and roads if the requirements for ensuring public safety are not met, etc.);

4) financial nature (cessation of lending, reduction budget financing, revocation of a license giving the right to carry out financial transactions, withdrawal (collection) into budget revenue of amounts received by enterprises, institutions and organizations as a result of violation of financial discipline, legislation on prices, on the sale of non-standard products, etc.);

5) of a medical and sanitary nature (exclusion from work of infectious patients, prohibition of the operation of trade enterprises or Catering due to their unsanitary condition, etc.);

6) related to the implementation of the licensing and permitting system (cancellation of a permit, for example, a residence permit of a foreign citizen, suspension of a license);

7) special or exceptional purposes (use of firearms, chemical tear substances, water cannons, rubber truncheons, handcuffs, etc.).

Measures of administrative restraint are closely related to measures of administrative responsibility and often precede them, ensuring the possibility of its actual implementation. Administrative detention, personal search, seizure of things and documents make it possible to establish the identity of the offender, draw up the documents necessary to bring him to justice, preserve material evidence in the case, and ensure the execution of the decision to impose an administrative penalty.

The most frequently used administrative measures:

Delivery. This measure, provided for in Art. 27.2 of the Code of Administrative Offences, is the forced transfer of an individual for the purpose of drawing up a protocol on an administrative offense if it is impossible to draw it up at the place where the administrative offense was detected, if drawing up a protocol is mandatory.

Delivery of a violator is a legal coercive measure consisting of a short-term restriction of a person’s freedom of action and movement and moving him from the place of committing an administrative offense to an internal affairs body (police), to an office premises internal troops, the headquarters of the people's squad, a public law enforcement center, a local government body, the office premises of state bodies exercising control and supervisory functions within the limits of their competence. The general purpose of delivery is to draw up a protocol on an administrative offense.

Administrative detention. Administrative detention is understood as a forced, usually short-term, restriction of freedom of an individual who has committed an administrative offense (Article 27.3 of the Administrative Code). Administrative detention is used for the purpose of suppression and termination of an administrative offense when other measures of influence against the offender have been exhausted.

Personal search, search of things in the possession of an individual (Article 27.7 of the Administrative Code). The essence of an administrative search is a forced examination of a citizen or his property in order to detect and confiscate documents, things and other items that were the instrument or direct object of the offense. Personal search and search of things is also carried out in order to identify and suppress administrative violations, when other measures of influence have been exhausted, drawing up a protocol on an administrative offense, identifying an individual, ensuring timely and correct consideration of administrative cases.

Seizure of things and documents. Seizure of things and documents that were instruments of committing or direct objects of an administrative offense, having the value of evidence in the case and discovered at the scene of the commission of an administrative offense or during a personal search, search of things carried by an individual, and search of a vehicle, constitutes an administrative-legal a measure of influence consisting in forcibly depriving the offender of the opportunity to own, use and dispose of illegally obtained property or forged (invalid) documents.

Removal from management vehicle, medical examination for intoxication, detention of a vehicle, prohibition of its operation. Removal from driving a vehicle should be understood as prohibiting a person from carrying out actions by which the vehicle can be set in motion.

Detention of a vehicle is a prohibition of operation with its placement in a specially guarded parking lot determined by local authorities, and small vessels - in a base (structure) for their parking.

Seizure of goods, vehicles and other things. The seizure of goods, vehicles and other things that were instruments of committing or objects of an administrative offense consists of drawing up an inventory of these items with an announcement to the person in respect of whom this measure is provided, or his legal representative, about the prohibition to dispose of, and if necessary, to use them . This measure applies if specified goods, vehicles and other things cannot be seized or their safety can be ensured without seizure. Items that have been seized may also be transferred for safekeeping to other persons appointed by the official who seized them.

Drive unit. In accordance with Art. 27.15 of the Administrative Code, the Law of the Russian Federation “On the Police” and a number of other regulations in necessary cases are brought to the internal affairs bodies (police) and other government bodies individuals or legal representatives legal entity evading without good reasons from appearing when summoned, in respect of which proceedings are underway for an administrative offense. Legal representatives of the minor, as well as witnesses, may be brought in.

In its own way legal nature drive is an independent measure of administrative coercion that ensures the suppression of a person’s evasion of appearing when summoned to the relevant government body or institution. Therefore, the drive should be distinguished from delivery as an integral part of the administrative or criminal procedural detention of offenders. Drive characterized by specific legal grounds and the procedure for implementation, is limited to delivering the person to the relevant body in order to ensure his participation in the production of certain administrative or criminal procedural actions.

The measures of administrative restraint discussed above and some other measures of administrative restraint often simultaneously perform the functions of procedural measures ensuring proceedings in cases of administrative offenses. These are dual-use measures: both administrative suppression and administrative procedural support. At the same time, both measures precede and prepare the application of the main classification type of administrative coercion - administrative punishment.

More on topic 29. Administrative measures:

§ 1. Competence of the police to suppress administrative offenses related to appearing intoxicated in public places
§ 4. Administrative coercive measures used by the police in the mechanism for ensuring transport security
§ 3. Administrative and legal measures to suppress offenses in the sphere of family and domestic relations by the police
The concept and types of administrative coercive measures applied to foreign citizens and stateless persons
Classification of measures to prevent administrative tort. Problems of victimization in administrative tortology
Legal relations in the field of licensing as an object of administrative and legal protection
Concept, content and types of administrative coercive measures applied to legal entities in the field of licensing
§ 3. Measures of administrative coercion and incentives in the sphere of economic regulation
§ 7.1. Classification of administrative coercive measures applied to non-governmental organizations
Administrative coercive measures applied to non-governmental organizations in the absence of an offense
Administrative coercive measures applied to non-governmental organizations in connection with an offense
Administrative coercive measures applied to non-governmental organizations for administrative offenses
§ 1. System of administrative coercive measures used by police officers
§ 2. Features of administrative liability for violations of the antimonopoly legislation of the Russian Federation

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“These measures are aimed at the forced cessation of illegal behavior, the prevention and elimination of its harmful consequences, and the creation of conditions for the possible bringing of perpetrators to administrative liability.”

“Suppression - special shape state coercion, the essence of which is to stop, i.e. stop an existing, arising or ongoing illegal action or offense. In the process of suppression, not only misdemeanors, but also crimes can be stopped; illegal actions of both citizens and organizations, enterprises and institutions.”

The system of preventive measures is extremely diverse. It includes means of mental and physical action. One can distinguish between the operational suppression of specific illegal actions and “desktop” suppression, designed to stop an antisocial lifestyle, an illegal state.

According to the purpose of the impact, preventive measures can be divided into general, special and procedural.

General preventive measures include: preventive detention, compulsory treatment, administrative supervision of persons arriving from places of deprivation of liberty, orders (warnings), prohibition of exploitation, suspension of work, seizure of illegally stored, transported, forwarded items, etc. Some of them are applied only to citizens, others - only to collective subjects.

Special preventive measures are applied only to citizens; they violate physical integrity in order to quickly stop illegal behavior. Among them:

a) means of simple physical influence (combat techniques, use of service dogs);
b) influence with technical means(batons, handcuffs, etc.);
c) use of firearms.

Procedural preventive measures are named in Articles 238-247 of the Code of Administrative Offenses of the Russian Federation. The main purpose of their use is to ensure the normal course of proceedings in cases of administrative offenses, not to allow the perpetrator to evade responsibility, to collect the necessary evidence, and to ensure the execution of the decision. Procedural measures include: delivery, detention, transfer, personal search, inspection of things, seizure of things and documents, removal from driving vehicles, replacement correctional labor arrest.

In the early sixties of the last century, the theory of administrative preventive measures was most clearly defined by Eropkin M.I. His theory of coercion is based on practical activities internal affairs bodies and their employees. Eropkin M.I. notes that while ensuring public order, police officers have the authority to force persons who maliciously violate the rules of conduct to comply with the rules of law, and to force them to submit to... law and order.

“The specifics of the sphere of public order protection objectively determine the need for an independent and quick reaction of police officers to offenses, and their prompt use of measures permitted by law. It is impossible for police officers to seek permission in each specific case to apply the necessary administrative coercive measures. Violations of law and order must be stopped immediately, because they affect the interests of the entire society, threaten the personal and property security of... citizens.

When detecting a violation of public order or encountering resistance to their legal demands, police officers must independently and without delay take the necessary measures of administrative coercion or cessation of illegal actions to punish persons who have committed administrative violations. For example, having discovered the storage of radioactive isotopes in a room that does not meet safety conditions, or a car on the line with faulty brakes, police officers immediately take measures to eliminate the violations, without waiting for either the consent of interested parties or permission from any government agency. The state, taking into account these features of the protection of public order, endows internal affairs bodies with the appropriate competence, allowing their employees to quickly resolve issues of applying administrative coercive measures. In the interests of the strictest observance... of the rule of law, law enforcement, protection of the rights and freedoms... of citizens, higher authorities State power and administration establish in laws and regulations the content of specific measures of administrative coercion, goals, grounds and procedure for their application.

It is appropriate to note that Chapter 2 of the Constitution of the Russian Federation enshrines the rights and freedoms of man and citizen, and their restrictions are carried out on the basis of Article 88 of the Constitution by the President of the Russian Federation. It is these officials and bodies that have the right to take regulations also on issues of combating natural disasters and epidemics.

The realization of the freedom of one is accompanied by restrictions on the proper behavior of the other. Article 10 of the Civil Code of the Russian Federation talks about the limits of implementation civil rights. Rights must be exercised in such a way that the interests of other persons protected by law are not violated.

The Universal Declaration of Human Rights of 1948, in paragraph 2 of Article 29, declared the limits of restrictions on human rights and freedoms: “In the exercise of his rights and freedoms, every person shall be subject only to such restrictions as are established by law solely for the purpose of ensuring due recognition and respect for rights and freedoms others and to satisfy the just demands of morality, public order and the general welfare in a democratic society.”

Legal restrictions may be directly provided for in legislation, or they exist in the form of a prohibition to exercise one’s rights to the detriment of other persons.

“Indeed, the use of coercive means... legislation usually connects with the fact of a person’s violation of the legal duties assigned to him. By creating rules of law, the state determines in advance the model of proper behavior of people. In order to combat socially dangerous deviations from this model, compulsory measures are established. However, a threat to public and personal interests and damage to them may arise as a result of not only an offense, but also natural Disasters psychologically ill persons, etc. The state is then forced to resort to the use coercive measures and in relation to persons not guilty of violating the law; competent authorities in provided by law cases limit their rights. These are the actions of the police authorities establishing administrative supervision in relation to a designated category of persons released from places of deprivation of liberty; firefighters destroying construction sites to contain the fire; medical institutions carrying out compulsory treatment of infectious patients, etc.

Preventive measures are also used to stop objectively illegal, innocent actions committed by persons who are insane or incompetent. On the other hand, placement in a sobering-up center, the use of firearms and other means of administrative restraint can also be used in connection with crimes. In other words, the range of grounds for suppression is wider than that of administrative liability.

This feature is closely related to a wider range of subjects against whom administrative measures of restraint can be used. They can be applied to persons under 16 years of age, and to the insane, and to persons with immunity (deputy, diplomatic), and to military personnel, employees of the Ministry of Internal Affairs when they commit offenses for which they bear disciplinary responsibility.

According to Kozlov Yu.M. in accordance with current legislation, authorities sanitary supervision have the right to make decisions on the destruction, processing or other use of food products declared unfit for consumption. Meanwhile, products can become unsuitable due to both crime and natural causes. For the application of this coercive measure, the very fact of the unsuitability of the products is important, and not its reasons. Therefore, administrative measures are a means of protecting public relations from danger, regardless of whether it arose as a result of an offense or another act or event.

Suppression is carried out both in the interests of society, the state, and in the interests of the offender himself. First of all, the authoritative cessation of antisocial activity makes it possible to prevent actions and events that would aggravate the responsibility of the perpetrator. Compulsory treatment, and in some cases other measures, directly pursue the goal of providing assistance to a citizen who commits illegal actions.

In his scientific monographs Eropkin M.I. notes that the importance of preventive measures in the system of law enforcement means can hardly be overestimated, since in the course of their use the socially dangerous activities of the offender are suppressed and the possibility of bringing him to justice is ensured. However, the purpose of administrative measures is not limited to the fight against administrative violations. They can also be used to stop criminal acts. For example, inspectors of the State Mining and Technical Supervision Service suspend the operation of machines and mechanisms whose condition threatens safety, regardless of whether this is a consequence of an administrative offense or a crime. Thus, administrative measures are one of the most effective means of combating crime.

Suppression, as an independent administrative-legal compulsory act, is possible only if the act is illegal. It serves to eliminate misconduct and is not in the nature of an administrative punishment. There is no assessment of the violation in terms of its punishability. However, this circumstance does not exclude the possibility of later and, as a rule, specifically resolving the issue of bringing offenders to administrative responsibility and punishment.

In the system of administrative coercion, suppression is a separate group of administrative legal norms regulating homogeneous public relations arising from the commission of administrative violations. It should be noted that sometimes the same measure belongs to several classification groups. For example, an inspection of a citizen's belongings and luggage, which is carried out by police officers who suspect the citizen of committing an administrative offense, is considered a preventive measure; if the inspection is carried out for a preventive purpose, then this measure is administrative-compulsory.

“The legal nature of preventive measures is complex, because Science has not resolved the question of what type of sanctions - material or procedural - they should be classified as. I.A. Galagan, for example, believes that sanctions of substantive legal norms include only punitive sanctions, while procedural sanctions should include many preventive measures and administrative preventive measures. Their use achieves the task of ensuring subsequent purely procedural actions of the relevant bodies and officials to implement penalties (for example, personal detention of the offender for drawing up a protocol and subsequent punishment)...

In our opinion, if preventive measures finally resolve the issue of stopping a violation without bringing persons to justice, then they have an independent substantive and legal nature. If they are used as auxiliary procedural measures to resolve the issue of subsequent punishment of the perpetrators, etc., then they should be considered as often procedural; This is what they are in criminal procedural law (undertaking not to leave, personal guarantee, detention, bail, etc.). These kinds of measures relate to procedural and security means of criminal procedural regulation, subordinate to the tasks of implementing the norms of substantive criminal law (criminal liability). Criminal procedural measures of restraint (as well as civil procedural measures, etc.) cannot be classified as suppression as an independent form of state coercion, which is based on substantive sanctions and does not require auxiliary means of support.

Suppression, as an independent form of state coercion, has its own special functions and tasks, which are subordinated to the goals and needs to stop antisocial, illegal behavior with the methods inherent in this form of response. This legal regulation is limited to solving this goal.

The literature rightly emphasizes the need to distinguish between preventive measures proper and suppression in the procedural and security function, where it is of an auxiliary nature.

However, most leading administrative lawyers, without going into details, recognize measures to ensure proceedings in cases of administrative offenses as a preventive measure. Among them, Yu.N. Starilov, who in his book “Administrative Coercion and Administrative Responsibility,” notes that regarding independent measures of administrative restraint, he characterizes them as legal institute. On a material basis, the relationship of suppression has one object - these are illegal actions, antisocial behavior, illegal activities of citizens and legal entities, i.e. Without committing certain illegal actions, without opposing legal requirements, relations of suppression do not arise. The defining feature of suppression is the direct legal influence of one party - the state (its representatives, officials) - on others. Administrative measures of restraint are applied in cases where it is necessary to forcibly stop (suppress) illegal actions and prevent their harmful consequences. Preventive measures also perform the function of procedural suppression, i.e. they ensure that in the future those responsible for committing offenses will be brought to administrative responsibility. L.L. Popov and A.P. Shergin have an interesting opinion on this matter. These authors also note that some authors justify the identification of certain preventive measures (procedural measures) as an independent type of administrative coercion. The need for this is motivated by the fact that a number of measures (administrative detention, confiscation of weapons from a poacher, etc.) are auxiliary in relation to liability measures and do not solve any independent problem.

Indeed, the mentioned coercive measures (and not only them) are associated with measures of responsibility and often precede them, providing the opportunity to bring the perpetrator to justice, i.e. in some cases they perform procedural functions. However, reducing their purpose only to the implementation of this auxiliary goal, in our opinion, would unjustifiably limit the law enforcement role of these coercive means. They also carry out the independent task of stopping the offense and preventing the damage caused.

It is this focus that characterizes measures of administrative restraint, such as independent species administrative coercion. When preparing acts regulating the use of administrative coercive means, this feature of administrative restraint measures should also be taken into account.

On this occasion, Bakhrakh D.N. notes that in the sciences of administrative and criminal procedural law the concept of “preventive measure” has different meanings. In criminal procedural law, this even includes the detention of a suspect. All preventive measures provided for by the Code of Criminal Procedure are procedural, interim, and not independent.

In administrative law there are few measures similar to criminal procedural ones, and preventive measures include not only procedural, but also independent coercive measures.

Administrative measures of restraint are varied and varied. This is due to the fact that in different conditions, in relation to various subjects, various government bodies must make the most effective means to stop antisocial activities. The wide variety of preventive measures also indicates that the main focus in our country is on crime prevention and timely prevention of further illegal actions.

The system of measures of administrative restraint as well as administrative coercive measures, in advance in a systematized form administrative legislation is not established, but is derived analytically - by studying various administrative legal acts. Therefore, in the administrative legal literature there is a very different list of administrative measures.

These include: administrative detention of citizens (Article 240-242 of the Administrative Code of the RSFSR); seizure of things and documents (Article 244 of the Administrative Code of the RSFSR); personal search and search of things (Article 243 of the Code of Administrative Offenses of the RSFSR); temporary suspension from work; removal from driving a vehicle (Article 245 of the Code of Administrative Offenses of the RSFSR).

“In contrast to administrative preventive measures, the basis for the application of administrative restraint and penalties is the act of a person. However, not every act is such a basis. Only if there are certain signs provided for by law. It can be considered as an administrative offense and grounds for the application of measures of administrative restraint, punishment...

Thus, administrative penalties can only be acceptable if a specific act is provided for by a norm of administrative law and legal liability is directly established for its commission. The exception is the use of administrative measures. These measures are applied when committing both administrative offenses and crimes, i.e. in cases of violation of criminal law. The use of special measures of administrative restraint, for example, weapons, is permissible only when committing a crime and in cases directly provided for by regulations...

However, police officers can apply administrative measures even if the offender lacks proper legal capacity. A socially dangerous act must be stopped regardless of the age and health status of the offender.”

Bakhrakh notes that in the coercive activities of the executive branch, the main thing is suppression. Only it has the necessary personnel, material, and information resources to promptly identify and stop illegal actions. The use of preventive measures allows us to prevent new violations, new harmful consequences, and also bring the perpetrators to justice. Due to its preventive nature, administrative suppression plays an important role in protecting the rule of law, in protecting the rights of citizens, society and the state.”

Various administrative measures can be grouped into several types.

In particular these include:

1. Measures applied directly to the person of the offender (demand to stop unlawful behavior, direct physical influence, administrative detention and delivery to the police, etc.).
2. Measures of a property nature (seizure of firearms, demolition of unauthorized buildings, etc.).
3. Measures of a technical nature (prohibition of the operation of faulty vehicles, suspension of the work of enterprises due to violation of safety rules, fire safety rules, prohibition or restriction of repair and construction work on streets and roads if the requirements for ensuring public safety are not met, etc.).
4. Measures of a financial nature (cessation of lending, reduction of budget financing, revocation of a license giving the right to carry out financial transactions, withdrawal (collection) into budget revenue of amounts received by enterprises, institutions and organizations as a result of violation of financial discipline, legislation on prices, on the sale of non-standard products, etc.).
5. Measures of a medical and sanitary nature (exclusion from work of infectious patients, prohibition of the operation of trade or public catering establishments due to their unsanitary condition, etc.).
6. Measures related to the implementation of the licensing and permitting system (refusal to issue a license for a particular type of activity subject to licensing, suspension or cancellation of the license, etc.).
7. Special or exceptional measures (use of firearms, chemical tear substances, rubber truncheons, handcuffs, etc.).

The above classification of administrative measures is given by Kozlov.

Thus, we can conclude that preventive measures are divided into general, special and measures to ensure proceedings in cases of administrative offenses. Administrative scholars mostly agree with this classification and do not have any particular disagreements. 1

offense administrative coercion