Practical proposals for improving the legal mechanism of rehabilitation in case of illegal administrative prosecution.

Palatin Andrei Lecturer of the Department of Administrative and Financial Law of the faculty of law of National Research Nizhny Novgorod State University after Lobachevsky. 603950, Russia, Nizhny Novgorod region, Nizhny Novgorod, Gagarin ave., 23 k.2, room 401 anpal2004@mail.ru

     Undoubtedly, persons who are in legal relations with the state, if in such legal relations there is a violation of the law, violation of the law, excess or abuse of authority by officials of state bodies or simply the tyranny of representatives of the state, need procedural guarantees for the restoration of violated rights and compensation for the harm caused to them. It is also indisputable that the recognition and legislative consolidation of the institute of rehabilitation is an important step towards the formation of the rule of law in Russia.

    We will analyze the practical proposals put forward by scientists to improve the institute of rehabilitation in general and the proposed mechanisms for the rehabilitation of persons illegally brought to administrative responsibility in particular.

These proposals are aimed at solving the main task - improving the effectiveness of the implementation of the right of a person affected by the actions of administrative authorities, including in cases of illegal administrative prosecution for rehabilitation.

         I. L. Petrukhin, who studies the current Institute of Criminal Rehabilitation ^{[20, p.192]}, defines the goals of rehabilitation as compensation for property damage, elimination of the consequences of moral harm caused to the innocent, as well as restoration of his labor, pension, housing and other rights violated as a result of criminal prosecution and illegal conviction, the return of honorary titles and state awards.

      The procedural order of rehabilitation, according to I. L. Petrukhin ^{[20, p.192]}, is as follows:

a) in the acquittal of the court or in the decision to terminate the case on rehabilitating grounds, it must be indicated that the accused has the right to rehabilitation;

b) at the same time, an official notification is sent to the rehabilitated person explaining the procedure for compensation for harm (the notification is sent by the body that made the decision on rehabilitation - the inquirer, investigator, prosecutor, court);

c) during the limitation period, a person who has received a copy of an acquittal or other rehabilitating decision, as well as a notice, has the right to apply to the body that issued the rehabilitating decision with a claim for compensation for property damage caused.  An official is not obliged to take measures on his own initiative to compensate for property damage. The initiative belongs to the rehabilitated. (Glybina A. I. Rehabilitation and compensation for harm in the order of rehabilitation in the criminal process of the Russian Federation. Autoref. dis. ... cand. jurid. sciences'. Tomsk. 2006 - p. 14)

d) within one month after receiving the above-mentioned claim, the body that made the decision on rehabilitation must determine the amount of damage and make a decision on making payments in compensation for this damage. At the same time, all social security, financial, housing and other bodies are indicated, which are obliged to compensate for all types of damage caused;

e) if the decision on rehabilitation is made by a higher court upon termination of the case, then all materials are sent to the court that issued the verdict, where the necessary calculations are made, indicated in the decision of this court on the payment. In this case, the decision to make payments is made in the court that issued an illegal and unjustified sentence, which was then canceled by a higher court. At the same time, I. L. Petrukhin ^{[20, p.192]} complains that in order to avoid bias, calculations on the payment should have been entrusted to the wrong judge who issued an illegal and unjustified sentence;

f) if the decision on rehabilitation is made by an inquirer, investigator or prosecutor, then, having made all the necessary calculations, they send their decision and calculation data to the judge for making a final decision on rehabilitation. Thus, the CPC established only a judicial procedure for the final decision on rehabilitation;

g) the judge's decision on rehabilitation is made within the framework of the procedure provided for in Article 399 of the CPC (execution of the sentence), and may be appealed to the court in accordance with Article 137 of the CPC;

h) having received a judge's decision on rehabilitation, a person applies to financial, housing and other bodies with a claim for compensation for harm. The judge's decision on rehabilitation is mandatory for these bodies. In cases of non-fulfillment of this resolution, the rehabilitated person has the right to apply to the court.

The judge's decision on rehabilitation is also mandatory in cases where, on the basis of an illegal and unjustified conviction, the convicted person was deprived of special, military and honorary titles, class ranks and state awards (Article 138 of the CPC). These titles, ranks and awards are returned to the rehabilitated. In this regard, the judge's decision on rehabilitation is mandatory for the highest state officials awarding citizens with orders, medals, conferring honorary and military ranks. ^{[20, p.192]}

      Analyzing the procedure of the procedural order of rehabilitation established in the Code of Criminal Procedure of the Russian Federation, it can be noted that public-legal mechanisms of compensation for harm are involved.

A. A. Dvornikov ^{[7, pp.35-41]} notes that administrative responsibility and criminal responsibility, being varieties of public legal responsibility, pursue the common goal of protecting public interests, primarily such as the protection of human and civil rights and freedoms, ensuring law and order. Because of this, they have similar tasks, principles and thus complement each other. The application of administrative and criminal liability measures is based on the principles of equality of all before the law, legality, guilt as a mandatory basis of responsibility, humanity (Articles 1.4 - 1.6 of the Administrative Code of the Russian Federation, Articles 3-7 of the Criminal Code of the Russian Federation) fixed in a similar way.

         A similar conclusion is stated in the Resolution of the Constitutional Court of the Russian Federation dated July 14, 2015 No. 20-P "In the case of checking the constitutionality of Part 2 of Article 1.7 and paragraph 2 of Article 31.7 of the Code of Administrative Offences of the Russian Federation in connection with the request of the Justice of the Peace of the judicial district No. 1 of the Vyksa Judicial District of the Nizhny Novgorod Region". (Resolution of the Constitutional Court of the Russian Federation of July 14, 2015 N 20-P "In the case of checking the constitutionality of Part 2 of Article 1.7 and paragraph 2 of Article 31.7 of the Code of Administrative Offences of the Russian Federation in connection with the request of the Justice of the Peace of the judicial district No. 1 of the Vyksa judicial district of the Nizhny Novgorod region" // SPS Consultant Plus.)

         Therefore, for the research and implementation of the institute of rehabilitation in the proceedings on administrative offenses, at the initial stage, it is advisable to use, among other things, procedural mechanisms similar to those used in criminal proceedings.

             At the same time, G. V. Melnichuk ^{[14, pp.11-18]} believes that rehabilitation should be considered as a single legal phenomenon that includes various industry norms. Their general focus is the elimination of errors in public law regulation. Mistakes of officials of state bodies, entailing violation of the rights and freedoms of the individual, causing harm in the field of public relations, suggest that one of the parties to the legal relationship will be the state.

Since the relations between the individual and the state are public, and the procedure and procedure for regulating them are procedural, it seems that the institution of rehabilitation should be considered in the context of procedural branches of law.

Investigating the Institute of rehabilitation, Melnichuk G. V. ^{[14, p.11-18]} came to the conclusion that in order to settle disputed relations, the legislation should contain both material and procedural norms on rehabilitation.

    To determine the procedural order of rehabilitation, according to G. V. Melnichuk ^{[14, pp.11-18]}, the domestic legislator should pay attention to the existing legal institutions, Chapter 26 of the CAS of the Russian Federation, regulating the procedure for restoring the rights of persons deprived of the rights to legal proceedings within a reasonable time or the right to execute a judicial act within a reasonable time. The issue of awarding compensation is considered according to a single procedure, regardless of whether there has been a violation of rights in a civil or administrative case or in the framework of criminal prosecution. In this regard, the resolution of issues on rehabilitation measures, as well as on the payment of compensation for violation of the right to legal proceedings within a reasonable time within the framework of administrative, not claim proceedings. The judicial rehabilitation procedure in this case will serve as a law enforcement mechanism. The use of the form of an administrative statement of claim will allow for a clear separation of the procedural functions of the contending parties and will serve as the basis for building such a structure of administrative proceedings in which none of these parties has the opportunity to directly influence the procedural position of the other with their power. This will guarantee the independence of the parties from each other and create the necessary prerequisite for equality of their procedural and legal statuses.  The norms of substantive law that allow using this approach when applying a simplified procedure, as well as the obligation of the state (as a general rule) to return (with interest accrued on them) the money paid when there are no grounds for withholding them, may be contained in industry legislation or in a special law on rehabilitation. There, in particular, the procedure for calculating compensation should be established for those cases when the amount of losses initially incurred by a legal entity is determined by the amount of an administrative fine ^{[13, pp.11-18]}.

     In turn, L. K. Ostrikova ^{[18, p.74]} believes that compensation for damage caused to a citizen or a legal entity in the sphere of state-governmental activity should occur exclusively in the order of civil procedure proceedings and considers it expedient to single out a subinstitute - obligations as a result of harm caused by acts of public authority in an independent paragraph of Chapter 59 of the Civil Code of the Russian Federation.

      According to the scientist ^{[18, p.74]}, in the current version of Chapter 59 of the Civil Code of the Russian Federation, Articles 1069 - 1071 are devoted to the issue of tort liability for harm caused by acts of public authority, which is insufficient.    The tort obligations provided for in Articles 1069, 1070 of the Civil Code of the Russian Federation are classified as special torts, since there is a special nature of illegal behavior, features of causation, special subject composition, different conditions for the occurrence of tort liability and features of the procedure for compensation for damage caused.

       In the new version of Chapter 59 of the Civil Code of the Russian Federation, it seems necessary to disclose the content of the conditions for the occurrence of increased liability provided for in paragraph 1 of Article 1070 of the Civil Code of the Russian Federation. In the absence of a norm-definition of a single concept of "harm", it seems advisable to list as fully as possible the negative property and non-property consequences of the violated subjective rights of citizens and legal entities, taking into account the doctrine of the objects of civil rights and the current civil legislation. At the same time, it should be borne in mind that the victim may have violated basic constitutional rights: the right to life, the right to freedom and personal inviolability, the right to privacy, personal and family secrets, the right to protect honor and good name, business reputation, the right to work, the right to social security, the right to inviolability of housing, the right to engage in entrepreneurial and other activities not prohibited by law , etc .

     L. K. Ostrikova ^{[18, p.74]} believes that since paragraph 1 of Article 1070 of the Civil Code of the Russian Federation establishes a list of illegal actions in the field of administrative proceedings: illegal bringing to administrative responsibility in the form of administrative arrest, in the form of administrative suspension of activity, it is necessary to supplement paragraph 1 of Article 1070 of the Civil Code of the Russian Federation with the norm on illegal administrative detention (Resolution of the Constitutional Court of the Russian Federation of 14.11.2017 N 28-P "In the case of checking the constitutionality of certain provisions of the Criminal Procedure Code of the Russian Federation in connection with the complaint of citizen M.I. Bondarenko"// "Bulletin of the Constitutional Court of the Russian Federation". No. 1. 2018)  and also about other illegally applied procedural actions restricting the right to freedom.

Since, according to the rules of paragraph 2 of Article 1070 of the Civil Code of the Russian Federation, damage caused to a citizen or a legal entity that did not entail the consequences provided for in paragraph 1 is compensated on a general basis, it seems advisable for the scientist to establish an approximate list of procedural actions, the commission of which may violate the subjective civil rights of citizens and legal entities: personal search, examination, temporary suspension from positions, seizure of property, search, seizure, storage of material evidence, forensic examination. ^{[18, p.74]} 

     T. N. Neshataeva ^{[16, p.65]} sees two ways to solve the problem. The first of them is the expansion of civil law remedies, the improvement of the civil law mechanism of compensation for harm. This way implies a radical change in the institution of civil liability. The second way is to create a special public (administrative and legal) mechanism for compensation for harm, determining monetary compensation for harm caused by the actions of the state. Commissions or other similar bodies are established to assess and determine the amount of compensation, or similar powers are transferred directly to judicial authorities. The public legal path may involve the development of a special regulatory legal act on compensation for damage caused by the actions of public authorities.

Analyzing the ways to improve civil law mechanisms of compensation for harm (amendments to the Civil Code of the Russian Federation, the adoption of separate laws on compensation for harm, the adoption of a resolution of the highest court), T. N. Neshataeva ^{[16, p.65]} noted as a disadvantage of all three approaches "a weighted claim procedure for compensation for harm, which is quite difficult for private persons and costly for the state." In her opinion, the creation of an administrative and legal mechanism for compensation for harm is associated with the risk of applying different standards and approaches in the field of compensation for harm, conflict of laws with each other and with the Civil Code of the Russian Federation, or corruption risks in resolving issues of compensation.

Gulyaev A. P. ^{[5, pp.46-48]}, in turn, believes that at present there is an underestimation of legal rehabilitation as an independent form of restoring the good name, honor and business reputation of a subject who has been the victim of an illegal or unfounded accusation of an offense (civil, criminal, administrative). We are talking about such a form and such a legal status of a decision canceling an illegal or unjustified accusatory decision that would clearly, unambiguously and independently express the rehabilitating nature of such a decision, restoring the good name, dignity and business reputation of a person illegally or unreasonably accused of committing an offense. Unfortunately, the Civil, Civil Procedural, Arbitration Procedural Codes and the Code of Administrative Offences do not pay any attention to this issue. They limited themselves to regulating mainly the material and moral side of the issue, which, in fact, is derived from the solution of the main, legal, question of the innocence of a person in committing an offense

A. P. Gulyaev ^{[5, pp.46-48]} expressed the idea of the expediency of implementing in the Administrative Code of the Russian Federation a legal mechanism for resolving the issue of compensation for moral damage to a rehabilitated person not in a lawsuit, but in public. The scientist believes that the state itself should initiate and consider the issue of compensation for property and moral damage to a person who has been unlawfully or unreasonably persecuted. The current law condemns such a person to independently "punching" this issue in civil proceedings, which does not really correspond to his interests and justice.

R. E. Vitske and A. Sh. Sharafutdinov ^{[2, pp.46-48]} propose to make additions to the Administrative Code of the Russian Federation in the form of a separate chapter "Rehabilitation". In it, by analogy with the Code of Criminal Procedure of the Russian Federation, the principle of state responsibility for illegal and unjustified bringing to administrative responsibility will be fixed, relations in the case of harm in the proceedings on administrative offenses will be regulated to one degree or another, the legal foundations of administrative and legal rehabilitation will be fixed.

P. V. Meshkov ^{[15, pp. 64-69]}, in turn, considers it quite reasonable to supplement the Administrative Code of the Russian Federation with provisions clarifying the procedure, sequence and limits of the application of appropriate security measures, which would minimize cases of unjustified restrictions on the rights, freedoms and legitimate interests of citizens and organizations.

According to I. A. Gorodilova and T. T. Sokolova ^{[4, pp.115-122]}, the legislative prerequisite for overcoming the civil monopoly and the formation of good practice focused on the public law procedure for the consideration of disputes on compensation for damage caused by the state is contained in paragraph 3 of Article 2 of the Civil Code of the Russian Federation. In accordance with it, property relations based on administrative or other authority subordination of one party to the other have been removed from the scope of civil legislation. Moreover, the list of such relations is not closed. It should also be mentioned that if a citizen causes harm to the State, the obligation to compensate him is considered as public law. And when it comes to harm caused to a citizen as a result of illegal public activities of the state, these provisions of the law do not apply. In this regard, the question arises of achieving a fair balance between the interests of the state and the individual without the absolutization of individualistic principles, when the state causes harm as a subject of public law, and compensates it using the legal constructions of private law.

Gorodilova I. A. and Sokolova T. T. ^{[4, pp.115-122]} believe that the use of a claim form in cases of compensation for damage caused by illegal actions of the state is untenable. The institution of compensation for damage caused to a citizen as a result of illegal actions of the state is one of the constitutional guarantees of ensuring the legality of the activities of the authorities. Its civil interpretation by the legislator is unreasonable, since it does not take into account the public-legal nature of the relationship between a citizen and the state. In accordance with the deep meaning of the constitutional provisions, it is advisable to use the means of an administrative jurisdictional process to compensate for harm in order to improve the legal situation of victims of illegal actions of state authorities or their officials.

     Gulyakov A.D. and Yashina A. A. ^{[6, pp.30-32]} having come to the conclusion that it is necessary to form special administrative courts in Russia and an administrative process within which these legal relations would be considered, they advocate the need for a constitutional and legal understanding of the category under study, also explained by the fact that rehabilitation pursues the goal of restoring social, legal, the property and moral status of a person and a citizen violated by the actions and decisions of government structures. Mistakes of officials of state bodies, entailing violation of the rights and freedoms of the individual, causing harm, arise only in the sphere of public-legal relations, where the state is always one of the parties.

In order to exclude vicious law enforcement practice, it is necessary to pay attention to the directions proposed by Gulyakov A.D., Yashina A. A. to improve the legislation on rehabilitation in Russia:

· Proclamation of the right to rehabilitation in the Constitution of the Russian Federation;

· consolidation of the right to rehabilitation in the constitutions (charters) of the subjects of the Russian Federation;

· Adoption of the Federal Law "On Rehabilitation of Persons in Connection with Illegal or Unjustified Actions (Inaction) of Public Authorities in the Russian Federation";

· organization of the system of administrative courts in Russia and the formation of administrative proceedings for the consideration of rehabilitation cases;

· improvement of legislation on the unconditional execution of judicial and other acts in relation to rehabilitated citizens.

These proposals are aimed at solving the main task - improving the effectiveness of the realization of the human and citizen's right to rehabilitation. ^{[6, pp.30-32]}

         Panova I. V. ^{[19, pp.43-49]} considers it necessary, among other things, to create administrative courts in Russia as part of the improvement of the administrative justice system. In this regard, it is possible to provide for the powers of such courts, which would allow them to have the opportunity to consider, in the course of administrative proceedings, a claim for compensation for damage caused by an unlawful act, decision, action (inaction) of a public authority, local self-government body, official, state, municipal employee, or other subject of public legal relations, if they are declared in one proceeding with a claim containing a public-law dispute.

As V. D. Zorkin notes ^{[10, p.340]}, the specifics of the cases under consideration, the level of "citizen–state" relations require deepening the specialization of the relevant courts.

It is necessary to agree with the prominent scientist in the field of administrative law B. V. Rossinsky ^{[24, p.26]}, who points out that complaints against rulings in cases of administrative offenses should be considered in the course of administrative proceedings, i.e. within the framework of administrative proceedings on challenging decisions and actions of executive authorities, other state bodies, which requires necessary additions and amendments to the Administrative Code of the Russian Federation and the CAS of the Russian Federation.

         Nilova S. V. ^{[17, pp.54-56]} emphasizes that the issue of the possibility of compensation for damage caused by illegal actions (inaction) of authorities and illegal acts is a debatable issue. Currently, there are no legal norms about this in the CAS of the Russian Federation. At the same time, Nilova believes that this gap does not establish guarantees of administrative and legal protection of the rights and interests of subjects. It is important that the introduction of legal regulation of compensation for harm in the CAS of the Russian Federation is appropriate, since it will contribute to the protection of the rights of subjects of public legal relations. This author considers it expedient, in order to effectively protect the rights and legitimate interests of subjects of public legal relations, to introduce into the CAS of the Russian Federation the institution of compensation for damage caused by the actions (inaction) of authorities and their officials.

According to Yu. N. Starilov, ^{[26, p.20-22]} in our far from ideal Russian legal state, which is at the stage of formation, it is unlikely that a perfect codified law could appear that solves all, without exception, the long-standing problems of dispute resolution between non-governmental entities and the state. Of course, the administrative proceedings established by the CAS of the Russian Federation require further improvement. This is what many scientists in the field of administrative law write about, saying that further development should only be progressive and it should not be allowed to go backwards.

       Undoubtedly, the CAS of the Russian Federation is also considered as the most important legislative act, the application of which can improve the efficiency of public administration in the country and adjust legislation on administrative procedures. ^{[13, pp.47-53]}

 It is difficult not to agree with L. L. Popov ^{[21, p.93]}, who rightly notes that "without the formation of a modern administrative process, it is impossible to create effective governance, including at least limiting the adoption of erroneous decisions by public administration bodies, as well as guaranteeing non-governmental entities (citizens and non-governmental organizations) the exercise of their rights, and legitimate interests".

In the scientific works of L. L. Popov ^{[22, p.76]}, the problem of developing the Administrative Procedure Code of the Russian Federation received detailed coverage. Justifying the need to adopt such a law, he writes that each branch of government has its own procedural support at the level of the law: "The legislative power is based on the Constitution of the Russian Federation and the Law on the Constitutional Court of the Russian Federation with its procedural part... The judiciary now has three Procedural Codes. But the executive power, public administration (the largest part of the state apparatus) do not have such legislative procedural support (the exception is the procedural part of the Code of Administrative Offences of the Russian Federation)."

Mayorov V. I. ^{[12, pp.48-50]} emphasizes that Administrative procedures are an expression of positive state-management activities, they bring proper order to the organization and functioning of public authorities, ensure compliance with the principle of legality, the establishment of guarantees of usefulness, efficiency and openness of administrative actions.

One of the most famous administrative scientists who develop problems of administrative procedures is Doctor of Law, Professor, Honored Scientist of the Russian Federation Yu. N. Starilov ^{[25, pp.7-23]}, who actively promotes the idea of the need for the adoption of the law "On Administrative Procedures" in the Russian Federation, which is shared by L. L. Popov.

Yu. N. Starilov ^{[26, p.7-23]} believes that administrative law cannot be imagined without the institution of administrative procedures, established legal procedures for the adoption of administrative acts by executive bodies of public authority and their officials. Interaction and simultaneous modernization of administrative legal proceedings and administrative procedures in the Russian Federation necessitate the formation of appropriate concepts of administrative and legal regulation of both administrative-procedural and administrative-procedural relations.

      The lack of due attention to administrative and procedural relations in the sphere of public administration demonstrates a depressing (by the nature of its stability and prevalence) lack of respect for constitutional and legal values, indicating the need for the state to fulfill the obligation to recognize, observe and protect human and civil rights and freedoms (Article 2 of the Constitution of the Russian Federation) ^{[26, pp.7-23]}.

      According to the teachings of A. B. Zelentsov ^{[9, p.563]} administrative-procedural issues are considered in combination with administrative-legal disputes and administrative jurisdiction. In his book, A. B. Zelentsov ^{[9, p.563]} concludes that the imperative of the time is the adoption of domestic legislation on administrative courts and administrative proceedings, designed to ensure that the judicial form of their resolution is adequate to the content of administrative disputes.

       Mayorov V. I. ^{[12, pp.48-50]} notes that, of course, proper legal regulation of the administrative process is of great importance in the relationship between powerful and non-powerful subjects.

      As part of the administrative reform of the last decade, which has affected many areas of public administration of the Russian Federation, much attention is paid to improving the legislation on administrative offenses and administrative procedure legislation: from 2021, it is planned to completely update the norms in these areas and adopt new codes. However, if the Administrative Code of the Russian Federation (Code of Administrative Offences of the Russian Federation No. 195-FZ dated 30.12.2001// Rossiyskaya Gazeta No. 256. 31.12.2001) has existed in our country for a long time, then the procedural administrative code will be adopted for the first time in Russian history.

              It is assumed that the procedural Code will be aimed at regulating the procedure for proceedings in cases of administrative offenses in the initiation, consideration and revision of cases of administrative offenses, as well as the procedure for the execution of decisions in cases of administrative offenses. It will include amended and revised norms that are currently contained in the procedural part of the Administrative Code of the Russian Federation (Code of Administrative Offences of the Russian Federation of 30.12.2001 N 195-FZ// Rossiyskaya Gazeta No. 256. 31.12.2001).

          Currently, as part of the reform of administrative legislation, the issue of the prospects of the institute of administrative and legal rehabilitation is being actively discussed in the draft Procedural Code of the Russian Federation. (Review: "The Ministry of Justice submitted a revised draft of the Procedural Code of the Russian Federation"// SPS Consultant Plus)

        According to the author, considering that the substantive part of rehabilitation consists of a set of actions aimed at restoring an innocent citizen to violated rights (restoration of social, legal, property and moral status of the individual) and compensation for the damage caused (property and moral), the existing civil legal mechanisms are clearly insufficient. Since there are no norms in the Administrative Code of the Russian Federation (Code of the Russian Federation on Administrative Offenses of 30.12.2001 No. 195-FZ// Rossiyskaya Gazeta No. 256. 31.12.2001) regulating the restoration of an innocent citizen in violated rights after the decision to terminate administrative and legal prosecution on rehabilitating grounds, then all available civil legal mechanisms - these are ways to compensate for damage (property or moral). At the same time, it is worth agreeing with T. N. Neshatayeva ^{[16, p.65]}, who rightly believes that the main drawback of the civil law method of compensation for harm is a weighted claim procedure for compensation for harm, which is quite complicated for individuals and costly for the state.

     Therefore, according to the author, it is necessary to support T. N. Neshataeva ^{[16, p.65]}, who believes that in a modern rule-of-law state there should be both a public-law function of responsibility (restoration of social balance) and private-law mechanisms for its implementation: restoration of material and non-material damage to a private person through a formalized or complete definition its size, and private individuals should have the right to choose which of them to turn to in case of harm caused by the actions of public authorities.

    It is possible that the creation of a compensatory compensation mechanism for damage caused during the exercise of public power will subsequently lead to the emergence of a general Russian law on this problem, applicable to all branches of public power. At the same time, we consider it necessary to improve the norms of the Civil Code of the Russian Federation regarding the imposition of responsibility on public authorities in order to create civil-law compensation mechanisms, which are included at the choice of a private person who has received material and non-material damage from the actions (inaction) of public authorities.

In the part of restoring an innocent citizen to violated rights, according to the author, it is necessary to listen to the positions of scientists who propose to allocate a separate chapter "Rehabilitation" to the Procedural Code of the Russian Federation on Administrative Offenses being developed. In it, by analogy with the Code of Criminal Procedure of the Russian Federation, it is necessary to consolidate the principle of state responsibility for illegal and unjustified bringing to administrative responsibility and to regulate relations in case of harm during the proceedings on administrative offenses, i.e. to consolidate the legal foundations of administrative and legal rehabilitation.

            Noting the positive experience of the Republic of Kazakhstan (Code of the Republic of Kazakhstan on Administrative Offenses of July 5, 2014 No. 235-ZRK // Information and legal system of normative legal acts of the Republic of Kazakhstan. [electronic resource]. URL: www.adilet.zan.kz/rus/docs/K1400000235#z3239 (date of appeal: 08/04/2023)) and the Republic of Belarus (Procedural and Executive Code of the Republic of Belarus on Administrative Offenses dated January 6, 2021 No. 92-Z [Electronic resource]. // URL: https://pravo.by/document/?guid=12551&p0=HK2100092&p1=1(accessed 04.08.2023)) in the development of the institute of rehabilitation in administrative legislation, it is impossible not to note a positive trend in Russia in this matter.

      In confirmation of the author's position developed during the study regarding the ways of introducing the institute of rehabilitation into the administrative law of the Russian Federation, it is worth noting that in the Review of the revised Procedural Code of the Russian Federation (Review: "The Ministry of Justice submitted a revised draft of the Procedural Code of the Russian Federation"// SPS "Consultant Plus"), it is mentioned about the prospect of the appearance of a norm on the right to rehabilitation of those who are illegally brought to justice.

      It should be noted that the need to consider the issue of fixing the institute of rehabilitation was mentioned in paragraph 5.1.9. of the concept of the new Administrative Code of the Russian Federation. (The concept of the new Code of Administrative Offences of the Russian Federation // SPS Consultant Plus)

      The Ministry of Justice of the Russian Federation, pursuant to the order of the Government of the Russian Federation dated June 4, 2019 N DM-P4-29pr (clause 3.1), based on the Concept of the new Code of Administrative Offences of the Russian Federation published on June 10, 2019, developed a draft federal law "Procedural Code of the Russian Federation on Administrative Offences" (Procedural Code of the Russian Federation on Administrative Offences administrative offenses : project : prepared by the Ministry of Justice of Russia, project ID 02/04/06-20/00102945 (not included in the State Duma of the Federal Assembly of the Russian Federation, text as of 06/16/2020) //SPS Consultant Plus.).

      According to the idea of the authors of the bill, the right to rehabilitation includes:

– the right to compensation for property damage;

– elimination of the consequences of moral harm caused to an individual;

– the right to compensation for damage caused to the business reputation of a legal entity;

 – restoration of other rights.

    At the same time, the damage caused to a person as a result of the proceedings on an administrative offense is compensated by the state in full, regardless of the fault of the court, body, prosecutor, official.

     The draft law defines the categories of persons who have the right to rehabilitation, including the right to compensation for damage related to the proceedings on an administrative offense:

1) a person against whom a decision has been made to terminate proceedings on an administrative offense and release from administrative responsibility;

2) a person brought to administrative responsibility, in the event of cancellation of the decision that has entered into force in the case of an administrative offense on bringing to administrative responsibility and imposing administrative punishment and termination of proceedings in the case of an administrative offense, as well as in the absence of evidence of the circumstances on the basis of which the said decision was made in the case of an administrative offense.

    As in the Code of the Republic of Kazakhstan on Administrative Offenses (Code of the Republic of Kazakhstan on Administrative Offenses dated July 5, 2014 No. 235-ZRK // Information and legal system of normative legal acts of the Republic of Kazakhstan. [electronic resource]. URL: www.adilet.zan.kz/rus/docs/K1400000235#z3239 (date of appeal: 04.08.2023)), the Russian authors of the bill provided for the right to compensation for harm to any person illegally subjected to measures to ensure production during the proceedings on an administrative offense. In addition, there are certain exceptions to these rules, they are associated with the expiration of the statute of limitations, not reaching the age from which administrative responsibility begins, etc.

     The draft law proposes to understand compensation as property damage subject to compensation:

1) wages, pensions, allowances, and other funds that a person has lost as a result of proceedings on an administrative offense;

2) his property confiscated or converted into state income on the basis of a court decision;

3) fines and procedural costs collected from him in pursuance of the decision in the case of an administrative offense;

4) the amounts paid to them for the provision of legal assistance;

5) other expenses;

       During the limitation period established by the Civil Code of the Russian Federation, from the date of receipt of a copy of the document confirming the right to rehabilitation and notification of the procedure for compensation for damage, the rehabilitated person has the right to apply for compensation for property damage to the court that issued a decision to terminate proceedings on an administrative offense, or to the court at the place of residence of the rehabilitated person, or to the court at the location of the body that issued the decision to terminate the proceedings in the case of an administrative offense. If the proceedings in the case of an administrative offense are terminated or the decision in the case of an administrative offense is changed by a higher court, body, prosecutor, official, then the claim for damages is sent to the specified court, or to the court at the location of the body that issued the relevant decision in the case of an administrative offense, or to the court at the place of residence of the rehabilitated.

1. No later than one month from the date of receipt of the request for

the judge determines the amount of compensation for property damage and makes a decision on the payment of compensation for this damage. These payments are made taking into account the inflation rate (Procedural Code of the Russian Federation on Administrative Offenses : draft : prepared by the Ministry of Justice of Russia, project ID 02/04/06-20/00102945 (not included in the State Duma of the Federal Assembly of the Russian Federation, text as of 06/16/2020)//SPS Consultant Plus)

      2.   The draft law (Procedural Code of the Russian Federation on Administrative Offenses: draft prepared by the Ministry of Justice of the Russian Federation, project ID 02/04/06-20/00102945 (not included in the State Duma of the Federal Assembly of the Russian Federation, text as of 06/16/2020)//SPS Consultant Plus) suggests the following ways to eliminate the consequences of moral harm caused to an individual and harm caused to the business reputation of a legal entity:

– the prosecutor, on behalf of the state, makes an official apology to the rehabilitated person for the harm caused to him;

– claims for compensation for moral damage caused to an individual, as well as for compensation for damage caused to the business reputation of a legal entity, in monetary terms, are presented in civil proceedings;

– if information about the detention of a rehabilitated person, the administrative suspension of his activities or certain types of his activities, about bringing the rehabilitated person to administrative responsibility and other illegal actions applied to him were published in the press, distributed on radio, television or in other mass media, then at the request of the rehabilitated person, and in the event of the death of the rehabilitated individual – his close relatives or relatives, or on the written instructions of a court, prosecutor, official, the relevant mass media are obliged to make a report on rehabilitation within 30 days;

– at the request of the rehabilitated individual, and in case of his death – his close relatives or relatives, the court, the body, the prosecutor, the official are obliged to send written messages on the decisions taken justifying the rehabilitated person at the place of his work, study or place of residence no later than 14 days.

    According to the author, proposed in the Draft Procedural Code of the Russian Federation on Administrative Offenses

(Procedural Code of the Russian Federation on Administrative Offenses : draft : prepared by the Ministry of Justice of Russia, project ID 02/04/06-20/00102945 (not included in the State Duma of the Federal Assembly of the Russian Federation, text as of 06/16/2020)//SPS Consultant Plus) rehabilitation procedure, has much in common with the procedure prescribed in Chapter 48 "Rehabilitation. Compensation for damage caused by illegal actions of the body (official

persons) authorized to consider cases of administrative offenses" of the Code of the Republic of Kazakhstan on Administrative Offenses dated 05.07.2014 N 235-V ZRK (Code of the Republic of Kazakhstan on Administrative Offenses dated July 5, 2014 No. 235-ZRK // Information and legal system of normative legal acts of the Republic of Kazakhstan. [electronic resource].  URL: www.adilet.zan.kz/rus/docs/K1400000235#z3239 (accessed: 08/04/2023))

   However, the proposed embodiment of administrative and legal rehabilitation has a number of disadvantages.    

    According to N. A. Dudina ^{[8, pp.102-109]}, the proposal that rehabilitated persons who were restricted in their rights in connection with bringing to administrative responsibility are restored to their respective rights seems controversial, since not all violated rights can be restored. It seems that an alternative should be provided here. In addition, the text of the bill contains separate provisions for the prosecutor, the court in the event of the death of a person, but it is not mentioned anywhere that the right to compensation for harm passes to his heirs.

    It is worth mentioning as a disadvantage of the proposed Draft Procedural Code of the Russian Federation on Administrative Offenses (Procedural Code of the Russian Federation on Administrative Offenses : the draft was prepared by the Ministry of Justice of Russia, project ID 02/04/06-20/00102945 (not included in the State Duma of the Federal Assembly of the Russian Federation, text as of 06/16/2020)//SPS Consultant Plus)  regulation - the absence of grounds for compensation to the rehabilitated moral harm using administrative and legal mechanisms, although it seems that any grounds for rehabilitation are grounds for compensation for moral harm caused to the rehabilitated. Any illegal bringing to administrative responsibility, any illegal application of procedural coercion measures cause moral suffering.

           The law does not specify in what amount moral damage should be compensated in monetary form. However, the amount of compensation should be adequate and real, since the award of an extremely small, insignificant amount of money would mean ignoring the requirements of the law and would lead to a negative result, giving the victim the impression of neglect of his rights.

    At the same time, within the framework of the mechanism of criminal legal rehabilitation, a table of coefficients of the severity of moral harm caused has been developed depending on the criminal legal qualification of the act incriminated to the convicted person ^{[27, pp.28-29]}. This table takes into account the impact on the amount of compensation for moral damage of only one of the many factors that need to be taken into account when deciding on rehabilitation.

    I believe that the moral damage caused to the rehabilitated person should be compensated in the same way within the framework of the institute of administrative and legal rehabilitation.

     According to T. N. Neshatayeva ^{[16, p.65]}, the administrative-legal mechanism of compensation for harm consists in creating a special public (administrative-legal) mechanism for compensation for harm. Commissions or other similar bodies are established to assess and determine the amount of compensation. Their functions include receiving applications from citizens, legal and economic examination of applications, making decisions on them, and payment of compensation amounts. Commissions, as a rule, are formed for the most typical cases of state interference in private rights and apply their own methods of calculating the amount of compensation.

    T. N. Neshataeva ^{[16, p.65]} believes that in order to compensate for the harm caused by the authorities, it is necessary to have two types of compensation mechanisms: compensatory (taxation of typical types of harm by administrative-legal type) and full compensation for damage (losses, lost profits by civil-legal type). It is unnecessary to explain why the second type of compensation is more profitable for individuals. It contains a complete material recovery element. However, such a result is difficult to achieve. The peculiarities of establishing a causal relationship will certainly entail the need for an adversarial process in which it is necessary to take into account the presumption of good faith; to prove the illegality, guilt of the behavior of persons exercising public authority. That is, a long civil trial is inevitable.

    The administrative and legal procedure for determining compensation can be used along with a more complex civil procedure for proving damages. Here, while maintaining the general principle of culpable liability and the distribution of the burden of proof between the parties to the dispute, it can be established that if the amount of losses is not proven, their amount is assumed to be equal to the interest accrued on the amount paid to the state treasury. It is necessary to take into account the approach of the ECHR, according to which, from the moment the court decision on the recovery of sums of money from the state in favor of the creditor enters into force, the amount of money awarded to the creditor is considered as his property. Accordingly, in case of late execution of the judicial act, the creditor's property right is considered violated, interest is accrued on the entire amount of compensation automatically.^{[23, p.246]}

     According to the author, the victim's ability to use either a simplified administrative-legal mechanism, or a longer and more complex, but traditionally possessing a large arsenal of law-restorative norms, civil-legal mechanism (within the framework of the claim proceedings) will lead to the fact that the victim will have no doubt that the harm caused by by illegal actions (or inaction) of state authorities or their officials, it is reimbursed in full.

         As a confirmation of the validity of the above conclusions, the author suggests referring to the experience of the Republic of Kazakhstan, where in Chapter 48 "Rehabilitation. Compensation for damage caused by illegal actions of the body (official) authorized to consider cases of administrative offenses" Code of the Republic of Kazakhstan on Administrative Offenses of 05.07.2014 N 235-V ZRK (Code of the Republic of Kazakhstan on Administrative Offenses of July 5, 2014 No. 235-ZRK // Information and legal system of normative legal acts of the Republic of Kazakhstan. [electronic resource]. URL: www.adilet.zan.kz/rus/docs/K1400000235#z3239 (accessed: 08/04/2023)) it is said that if the demand for rehabilitation or compensation for harm is not satisfied, or the person does not agree with the decision, he has the right to apply to the court in civil proceedings (Article 869 of the KRK on AP).

    According to the author, a significant drawback of the proposed in the Draft Procedural Code of the Russian Federation on Administrative Offenses (Procedural Code of the Russian Federation on Administrative Offenses : the draft was prepared by the Ministry of Justice of the Russian Federation, project ID 02/04/06-20/00102945 (not included in the State Duma of the Federal Assembly of the Russian Federation, text as of 06/16/2020)//SPS Consultant Plus) method of compensation for rehabilitated property damage in the form of compensation for fines and procedural costs collected from him in pursuance of the decision in the case of an administrative offense is the absence of norms on the payment of interest on the previously paid amount of the fine.

    Another disadvantage of the proposed legal regulation in terms of compensation for moral damage caused to the rehabilitated is that the proposed amendments to the new Procedural Code of the Russian Federation on Administrative Offenses (Procedural Code of the Russian Federation on Administrative Offenses : draft : prepared by the Ministry of Justice of the Russian Federation, project ID 02/04/06-20/00102945 (not included in the State Duma of the Federal Assembly of the Russian Federation, text on as of 06/16/2020)//SPS Consultant Plus) the rules on the official apology by the prosecutor as a representative of the prosecuting authority do not allow to determine in the prosecutor's office system a specific prosecutor who is obliged to make an official apology on behalf of the state to the rehabilitated.

     For example, during criminal rehabilitation in court, an apology on behalf of the state must be brought by the prosecutor who approved the indictment or indictment, and in writing ^{[3, pp.76-78]}  The Constitutional Court of the Russian Federation in Resolution No. 28-P of 14.11.2017 (Resolution of the Constitutional Court of the Russian Federation No. 28-P of 14.11.2017 "On the case of checking the constitutionality of certain provisions of the Criminal Procedure Code of the Russian Federation in connection with the complaint of citizen M. I. Bondarenko"// "Bulletin of the Constitutional Court of the Russian Federation". No. 1. 2018) came to the conclusion that the duty to bring an official apology on behalf of the state to a person rehabilitated on the basis of a decision to terminate a criminal case or criminal prosecution in the pre-trial stage of criminal proceedings for the harm caused to him lies with the prosecutor of the city or district, other territorial, military or specialized prosecutor's office directly supervising the procedural activities of the bodies of inquiry and preliminary investigation unless otherwise established for a particular case by a higher prosecutor; failure or improper performance by the prosecutor of the duty to make an official apology to the rehabilitated person may be appealed to the court.

According to Afanasyev and Chepelev ^{[1, pp.138-153]}, administrative responsibility and criminal responsibility, being varieties of public legal responsibility, pursue a common goal of protecting public interests, such as protecting human and civil rights and freedoms, ensuring law and order, by virtue of which they have similar tasks and principles and thereby complement each other.        I would venture to suggest the reason for such a position of the legislator that since administrative liability, like criminal liability, has a public-legal character, procedural mechanisms similar to those that take place in criminal proceedings can be used in the proceedings on administrative offenses.

According to S. S. Kupreev, this issue is ambiguously regulated by Russian legislation.^{[11, pp.70-75]} A similar opinion is held by A. I. Mikulin (Mikulin A. I. The right to protection in proceedings on administrative offenses: Abstract. dis. ... cand. jurid. sciences': 12.00.14. Omsk. 2009) and notes that guarantees for the protection of the rights and legitimate interests of persons in proceedings on administrative offenses require further improvement.

         The points of view of modern scientists presented above give us reason to say that the process of forming the institution of rehabilitation of women illegally brought to administrative responsibility has not been completed both theoretically and legislatively. The constitutional allocation of administrative proceedings as an independent form of justice allows us to state the need for legislative development of such an important institution as the institute of rehabilitation of persons not only unreasonably involved in proceedings on administrative offenses, but also illegally brought to administrative responsibility.  In other words, the institute of rehabilitation of subjects of proceedings in cases of administrative offenses illegally brought to administrative responsibility constantly requires significant changes, primarily related to improving its effectiveness in the field of respect for the rights, freedoms and legitimate interests of all persons involved in administrative proceedings.

     Summarizing all of the above, I consider it necessary to support the conclusions made by N. A. Dudina ^{[8, pp.102-109]} that:

1. The right guaranteed by the Constitution of the Russian Federation to everyone to compensation by the state for damage caused by illegal actions (or inaction) of state authorities or their officials should be reflected in the sectoral (administrative) legislation.

2. Certain countries with which we are connected by the historical union of the past and the relations of cooperation of the present and the future recognize in the national administrative legislation the right to rehabilitation and compensation for damage caused to an individual or legal entity by illegal actions of the bodies of jurisdiction. Such experience is important for the development of the institute of rehabilitation in the Russian administrative legislation.

3. The introduction of the institute of rehabilitation into the Russian administrative legislation will not only ensure the rights guaranteed by the Constitution of the Russian Federation, but also improve the quality of the administrative process (in terms of proceedings on administrative offenses).

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