Administrative restraint is the activity of authorized bodies aimed at stopping illegal actions. The means and measures used in this process allow creating the necessary legal and organizational conditions for collecting the evidence base and further bringing the perpetrators to justice. The purpose of administrative restraint is also to ensure the rule of law in various areas of public administration.
Relevance of the issue
The study of the characteristics of administrative measures of restraint and the problems of their practical application is of crucial methodological importance for administrative law in general and the activities of executive bodies in particular. The fact is that the results obtained in this way contribute to solving particular and general theoretical issues, creating the prerequisites for improving the regulatory framework, and conditions for more effective protection of the freedoms, rights and interests of society and the state. The article will examine in more detail the features of administrative warning and suppression.
General information
The concept of "administrative restraint" in the Code of Administrative Offenses is absent. The definition of preventive measures is not disclosed. Means and methods of terminating illegal actions are distinguished by a number of specific signs. Their internal content, procedure and grounds for application, legal consequences allow them to be allocated as a separate group, as an independent law enforcement institution.
The production of administrative preventive measures is part of the process aimed at resolving specific situations. This process involves various procedures. It is in the course of their implementation that administrative means of restraint are applied.
Administrative and preventive measures: definition, signs
The analysis of norms and law enforcement practice reveals the concept of “preventive measure”. They should be understood as legal means and methods of physical and mental impact used by law enforcement officials to stop objectively unlawful, punishable acts during and at the place of their commission. The use of administrative preventive measures involves direct intervention in the actions of perpetrators.
Classification
In theory, all measures are divided into two types. Administrative restraint may be carried out by general or special means and means.
Among the first include:
- The demand for the cessation of illegal actions, including those that impede the exercise of powers by police officers.
- Removal from vehicle control.
- The ban on the operation of the vehicle.
- The detention of the vehicle.
- Prohibition of activities.
- The seizure of objects, things, substances.
Administrative restraint can be carried out by applying:
- Physical strength.
- Special equipment.
- Firearms.
Such measures are considered special.
Claim of termination of unlawful acts
This type of administrative restraint involves a psychological effect on the offender. Law enforcement officials may require a citizen or official to stop unlawful actions, including obstructing the performance of their official duties, committing legal actions by deputies and candidates for deputies, officials of local and state authorities, and representatives of public organizations.
When applying this method of administrative and legal suppression, it is not allowed to diminish the dignity of the personality of the violator. Law enforcement officers are required to follow the provisions of part 1 of article 21 of the Constitution. It states that the state is the guarantor of the protection of the dignity of the individual. His derogation is not permitted on any grounds. It follows from this that when presenting a demand for the cessation of an unlawful action, employees should not express it in an offensive manner. This order should be carried out regardless of the gravity of the violation, the identity of the perpetrator, or other similar circumstances.
Suspension from vehicle control
This measure applies to citizens driving vehicles while intoxicated or in the absence of the necessary documents.
The removal from the management of the vehicle is referred to in paragraph 21 of Art. 13 and clause 14 of article 12 of the Federal Law "On Police", as well as in the Code of Administrative Offenses in part 1-5 of Art. 12/27. This measure is valid until the reasons for which it was applied are eliminated.
Upon the fact of removal, a protocol is drawn up, a copy is transferred to the violator.
The ban on the operation of the vehicle
Law enforcement officers have the right to limit the ability of citizens to operate vehicles if malfunctions that threaten traffic safety are identified in them. When applying this measure, registration marks must be removed.
Vehicle Detention
This measure is used in transport management:
- A driver who does not have documents stipulated by traffic rules.
- With obviously faulty coupling device, brake system, steering gear.
- A citizen who does not have the right to drive a vehicle or is deprived of such a right.
- A person in a state of intoxication.
- In violation of the rules for stopping / parking on the carriageway and creating obstacles to the movement of other vehicles.
Law enforcement officers also have the right to detain the vehicle in case of refusal of the driver to undergo a medical examination for the state of intoxication.
A protocol is drawn up on the application of this measure.
Legislation also provides for the detention of wanted vehicles. In this case, the driver is removed from the control and use of the vehicle, and the car itself moves to the parking lot.
Seizure of items restricted or prohibited for sale
This measure applies to licensing system objects. For the performance of their duties, law enforcement officers are empowered to exercise control over the circulation of premium, service, civil weapons, ammunition, ammunition, service weapons that are temporarily used by organizations and citizens, as well as narcotic and psychotropic substances. The list of items withdrawn from circulation 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 fulfill a legal obligation. Special measures can be applied not only to people, but also to animals and physical objects. The key feature that characterizes them is that each of them is a specific violent method of influencing the violator. The list of special measures above is not closed.
Application specifics
The main normative act providing for the powers of law enforcement officials to use physical methods of influencing 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 the specified law and other legal acts.
It must be borne in mind that the use of non-lethal weapons, which is one of the special means, despite its name, can lead to death or damage to health of varying severity. Taking this into account, the Federal Law No. 3 stipulates a provision according to which an employee of a law enforcement agency is not held liable for harm caused by the use of special equipment, if it was carried out on the grounds and in accordance with the rules established by law.
Cases in which a police officer may use special means are provided for in part 1 of article 21, part 1 and 2 of art. 23 Federal Law No. 3.
Important point
Of particular importance in terms of assessing the appropriateness of damage resulting from the use of special equipment is the provision established by Part 3 of Article 19 of Federal Law No. 3. According to it, the employee must use special means to take into account the situation, the degree and nature of the danger of the actions of the offender, the strength of resistance which he is having. In this case, the policeman should try to minimize any harm.
This rule regulates the behavior of an employee at the time of the use of physical force, firearms or special equipment. To a certain extent, she directs him to carry out actions that are most relevant 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 forces of the defender and the offender should be taken into account. This, in particular, is about the number of violators, their physical development, age, the presence of weapons, time, place of the event.
In assessing an employee’s desire to minimize damage, the correct conclusion will depend on answers to a number of questions. In particular, it is necessary to establish whether he had a real opportunity to effectively stop illegal actions in another way, and if it was, for what reason he did not use it. It is necessary to evaluate the actions of the employee from the point of view of not only the law, but also the appropriateness of his behavior in specific circumstances.
A police officer has the right to use physical force, military techniques, if non-violent methods do not allow him to properly perform official duties when:
- The suppression of administrative offenses.
- Delivering persons who have committed unlawful acts to the office premises of the police unit.
- Overcoming resistance or countering the legitimate and reasonable requirements 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 equipment is 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 borne in mind 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 on the necessary defense, and when detaining a suspect - Art. 38 of the Code. The Criminal Code also has a norm on emergency. Its provisions also govern the actions of employees in the event of harm to the interests of citizens protected by criminal law.
House arrest
This measure was enshrined in domestic criminal law relatively recently. House arrest involves the physical isolation of a citizen from society. This measure is applied on the basis of a court decision without the consent of the suspect 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 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.
However, the law provides for certain guarantees for the suspect. In particular, the norms do not allow the restriction of the procedural rights of a person to participate in court proceedings, investigative and other measures carried out in the framework of the proceedings.
With house arrest, freedom of movement is more restricted than with recognizance not to leave. The court in its decision may prohibit constantly or at a specific time from leaving home, visiting any places, leaving without escort, etc.
Problems in implementing the measure
With a permanent stay of a citizen at home, certain difficulties arise. It is necessary to solve 2 problems: providing food and staying in the air.
The second problem arises when a person lives in urban conditions (in an apartment or room). In such a situation, one has to organize his walks accompanied by police officers. The duration of being in the air is not less than an hour per day.
If a citizen lives alone, it may be possible to visit the grocery store while walking. You can also provide for their delivery to the house at the expense of the suspect.
According to general rules, the passport of a citizen placed in custody or sentenced to imprisonment is seized and attached to the case file. After release, the document is returned. Persons placed under house arrest have no reason to seize a passport. The fact is that this measure is not a detention.
A citizen under house arrest cannot perform his labor functions (if he cannot work at home). At work, he is considered absent for good reasons, but he is not charged with a salary.
The court may prohibit a citizen from communicating with certain individuals. Information about them should be indicated in the decision on the application of preventive measures. Relevant persons are prohibited from visiting a citizen during the whole period of his stay in custody.