Once again about the mechanism of administrative coercion

Kurakin Aleksei Valentinovich Doctor of Law Professor at the Department of Administrative and Information Law of the Financial University Under the Government of the Russian Federation 125993, Russia, Moskva oblast', g. Moscow, ul. 125993, Moskva, Leningradskii, 49 kurakinaleksey@gmail.com Other publications by this author

Administrative coercion will be effective only if it is actually implemented. As N.A. Sattarova noted, "... the realized, realized goal of the rule of law is the result of certain actions by the subjects of the legal relationship, in accordance with the requirements of the legislator" ^{[1, p. 86]}. In this regard, the operation of the appropriate mechanism of legal regulation is important. It should be noted that the effectiveness of administrative coercion depends on many factors, both legal and non-legal. On this occasion, A.P. Shergin once noted that "... the law solves its functions with the help of various legal and non-legal means, each of which has the ability to exert regulatory influence" ^{[2, p. 103]}. 

This is true, but at the same time, there can be no coercion outside the law, only the law makes it official and legitimate, and therefore the legal factor in increasing the effectiveness of coercion is key. In this regard, A.S. Yemelyanov and N.N. Chernogor correctly noted that "... the procedure (process, procedure) for the implementation of financial sanctions requires detailed legal regulation, without which many legal restrictions defined by such a sanction are practically impossible" ^{[3, p. 154]}. 

It should also be noted that the effectiveness of the legal norm is also predetermined by the process of organization, and therefore there is a managerial component in the mechanism of administrative coercion. And therefore we can agree with Yu.A. Tikhomirov, who wrote that "... the elements of the mechanism of public administration are both the system of public authorities and the system of legal norms on the basis of which this management is carried out" ^{[4, p. 20]}.

D.S. Dubrovsky pointed out that "... the mechanism of coercion, which helps to strictly comply with the procedure for applying coercive measures, is one of the guarantees of respect for the rights of individuals and legal entities from abuse by the bodies applying such measures" ^{[5, p.10]}.

As K.S. Kaverina noted, "... the mechanism is, first of all: a system of rules that determine the procedure for implementing the norms of administrative law in practice; a certain type, stage, stage of the administrative process" ^{[6, p. 22]}. Thus, the mechanism of implementation of administrative coercion is of a legal nature, and is a set of legal means that fill its content. The legal means category is quite broad. As S.S. Alekseev wrote at the time, "... legal means are the norms of law, individual prescriptions and commands, contracts, means of legal technology, as well as other regulatory instruments" ^{[7, p. 12]}. In turn, the term "administrative and legal means" can be used in a variety of legal and law enforcement aspects. In particular, A.V. Ravnyushkin, by "administrative and legal means of preventing and suppressing offenses in the field of family and household relations, understands the system of administrative and legal norms and administrative procedures that have a regulatory effect on the behavior of citizens in order to prevent harmful consequences of conflicts on family and household grounds and including various methods and methods of legal regulation" ^{[8, p.9]}.

In the mechanism of action of administrative coercion, there are general prescriptions that are defined by law and individual prescriptions that personify a legislative prescription for a specific subject, in particular, an appropriate protocol is drawn up on the application of a measure to ensure proceedings in cases of administrative offenses. This procedure is due to the basis for the application of these administrative measures. Thus, A.P. Lonchakov correctly pointed out that "... security measures are applied exclusively in connection with an administrative offense and are of an administrative procedural nature" ^{[9, p.3]}.  

Individual prescriptions can perform not only procedural functions, but also make it possible to prevent or prevent various kinds of administrative offenses. On this occasion, I.I. Veremeenko at one time correctly pointed out "... administrative and legal means of combating petty hooliganism, drunkenness, violation of traffic rules, etc., are directly aimed at protecting public order. The optimal choice of these means by the legislator, their effective application in practice, the completeness and effectiveness of administrative and legal regulation largely determine the state of public order protection in the country" ^{[10, p.17]}.

Taking this into account, let's consider how the content of the mechanism for implementing administrative coercion is revealed in the doctrinal plan. But at the same time, we note that administrative coercion is of a law enforcement nature, in connection with which it is part of the law enforcement mechanism. As V.D. Ardashkin noted, "... legal mechanisms, the core of which is state coercion, are state-legal protective mechanisms" ^{[11, p.11]}.

Despite the specific functionality, the protective legal mechanism, in constructive terms, is generally similar to the legal mechanism, which has a positive (regulatory) character. The functionality of the legal means, as well as its purpose, determine the direction of the relevant legal mechanism. As already noted, from a general, doctrinal standpoint, the mechanism of legal regulation is defined as a set of legal means. On this issue, A.P. Korenev correctly noted that "... the system of administrative and legal means that affect public relations, organizing them in accordance with the tasks of the state and society, is called the mechanism of administrative and legal regulation" ^{[12, p.44]}.

I.I. Veremeenko, in relation to his topic, wrote that "... the mechanism of administrative and legal regulation can be defined as a set of administrative and legal means that affect public relations that develop during the executive and administrative activities of the state to ensure personal and public safety" ^{[13, p.16]}.

The mechanism of administrative and legal regulation is of a public-legal nature, and therefore the purpose of this mechanism is to ensure, first of all, the general, state and public interests. This is on the one hand, but if you look at the functionality of this mechanism from a private point of view, then this mechanism should also ensure the interests of a single person. In particular, everyone is interested in proper public order, in the state of personal and property security, road safety, etc. Therefore, despite all its publicity, and the specificity of regulatory and protective means, the mechanism of administrative and legal regulation ensures the interests of an individual.

Administrative coercion as a means of a protective legal mechanism is aimed at protecting citizens from various kinds of threats, social and man-made risks, as well as from illegal encroachment by any persons. Despite its "repressiveness", administrative coercion pursues a legal and social purpose. As E.N. Pastushenko noted, "... the possession by administrative coercion of the properties of a regulator of public relations, the behavior of subjects of these relations, along with the qualities of a law enforcement institution, indicates that administrative coercion has not only law enforcement, but also a general social, positive significance" ^{[14, 24]}.

Considering the functionality of state coercion in general and administrative coercion in particular, it should be noted that views on its essence have been transformed and this has been influenced by social, political and economic factors. It is quite obvious that ignoring objective reality makes it possible to make legal influence, including in the form of administrative coercion, ineffective. As V.P. Kazimirchuk wrote at the time, "... law is the most important means of transforming public relations. It is an effective tool only when it reflects the real economic, political and spiritual needs and interests of society, and is also aimed at protecting the rights and freedoms of citizens" ^{[15, p. 37]}.

Proceeding from this, the key goal of administrative coercion is not to restrict the rights of those subjects to whom it is directed, but to ensure law and order, protection and protection of rights, both private and public interests. And therefore it is correct that the Administrative Code determines that "... administrative punishment cannot be aimed at humiliating the human dignity of a person who has committed an administrative offense, or causing him physical suffering" (Article 3.2). In turn , the Federal Law of February 7 , 2011 "On the Police"^[1] stipulates that "... a police officer is prohibited from resorting to torture, violence, other cruel or degrading treatment. A police officer suppresses actions that intentionally cause pain, physical or moral suffering to a citizen" (Article 5).

Thus, the legal restrictions that administrative coercion entails are aimed at restoring the violated law and order, and as already noted, the protection and protection of citizens' rights, as well as ensuring various social interests. The mechanism of implementation of administrative enforcement measures has a certain design, the relationship of certain elements. As V.A. Shabalin wrote, "... the elements of the system of the mechanism of legal regulation include all legal phenomena, the unity and interaction of which make it an integral, relatively closed control system and give it a peculiar legal character" ^{[16, p. 142]}.

Among the elements of the legal mechanism, the designated author attributed "... legal awareness, legal norms, legal relations, legality, law and order". It seems rather controversial to include such elements as "legality" and "law and order" in the mechanism of legal regulation, these are certainly important legal states, but these are rather the principles of legal regulation or the result of the application of a legal norm. Thus, according to the Administrative Code, "... a person brought to administrative responsibility cannot be subjected to administrative punishment and measures to ensure the proceedings in an administrative offense case except on the grounds and in accordance with the procedure established by law" (Article 1.6).

Based on the above, we can agree that legal awareness increases the effectiveness of the law, to a certain extent can contribute to reducing the use of administrative and other coercion, since there will simply be no grounds for this. However, this element of the mechanism of law is very subjective and not tangible, and thus the level of legal awareness is quite difficult to "measure" and evaluate its quality. Despite this, I.I. Veremeenko insisted that such elements as legal awareness and legal culture should be included in the mechanism of legal regulation, as this author wrote "... legal culture and legal awareness have a direct and decisive impact on people's behavior in many ways. Thus, the exclusion of these elements from the structure of the mechanism of action of law will leave only the norms of law and legal relations in its content, and this, according to the author, will lead to the destruction of such a structure as a "legal mechanism" ^{[17, p. 51]}.

It can be agreed that the mechanism of legal regulation or the mechanism of action of law, it is inappropriate to reduce only legal norms and legal relations, thereby reducing (impoverishing) its content. Other means, including those of a non-legal nature, also have a regulatory effect in the legal reality. As A.K. Mustafin noted at the time, "... the mechanism for implementing the goals of administrative penalties acts as a set of administrative and legal means that provide preventive and educational effects on offenders and other persons. Its constructive elements are: a legal norm with an administrative sanction; acts of application of law; legal relations; acts of realization of law; legal awareness and legal culture" ^{[18, p. 16]}. 

As you can see, the author also included such elements as "legal awareness and legal culture" in the mechanism of action of administrative penalties. At one time, V.P. Salnikov wrote that "... the legal culture for the realization of its functions is designed to act as a legal stereotype, which finds its expression both in the legal norm and directly concerns the personality of the subject applying the relevant norm" ^{[19, p. 12]}.

Based on this, the subject applying administrative penalties, or administrative coercion in another form, must have the necessary level of legal culture. This will allow him to better understand how legal (procedural) requirements are when applying administrative punishment, but also to take into account the social aspect that is so necessary when meeting the requirements of reasonableness of administrative, coercive influence. Please note that excessive administrative coercion may meet the requirements of the law, but from a social point of view, such a situation will be condemned, an exclusively formal approach to the implementation of a legal norm sometimes ignores the principle of reasonableness, justice, humanity. Regarding the last two principles, we note that according to the Administrative Code of the Republic of Belarus, the principles of administrative responsibility include such principles as: "justice" and "humanism" (Article 4.2). These principles are not fixed in Russian legislation.   

Based on the social and legal functionality, we agree that the "legal culture" can be one of the elements of the mechanism of action of administrative coercion, since it helps to avoid certain excesses in its implementation. As I.V. Maksimov noted, "... the restriction of individual rights and freedoms provided for by administrative punishment cannot be carried out arbitrarily, without taking into account general legal and social categories. Otherwise, the state apparatus, having wide opportunities for the use of coercion, can turn administrative punishment from a means of civilized, adequate influence into an instrument of arbitrary persecution and suppression of any negative and positive will of citizens" ^{[20, p. 26]}.

Taking this into account, we conclude that the excessiveness of administrative coercion makes this means of legal influence ultimately illegitimate. It should also be recognized that constructively the mechanism for implementing administrative coercion should be optimal and balanced. The legal mechanism should not include too many legal means, in addition, this mechanism should not be reduced only to legal norms, legal relations, as well as law enforcement acts, since this will "impoverish" the designated legal structure and ultimately causes the need to search for additional regulators that lie outside the framework of the relevant legal mechanism. The legal mechanism of administrative coercion should include as many legal means as necessary to achieve the desired result in a particular situation.

The mechanism of action of administrative coercion by its functionality is an integral part of the law enforcement mechanism. As V.D. Ardashkin noted, "... the mechanism of state coercion is internally heterogeneous. State coercion varies depending on the social soil, the legal environment in which coercion is implemented, the goals, objectives and functions of coercion. Therefore, the legal mechanism determines various subtypes. Depending on the grounds of its action, the law enforcement mechanism includes: the institute of responsibility; the Institute of protection; the institute of prevention; the institute of procedural support" ^{[21, p.11]}. 

Regarding the construction of the mechanism of legal regulation, the position of A.P. Korenev deserves attention. Thus, the designated author at one time included such elements in the structures of the legal mechanism as "... norms of administrative law and its principles; acts of interpretation of norms of administrative law; acts of application of norms of administrative law, as well as administrative legal relations" ^{[22, p. 44]}. 

Let's pay attention to some of the listed elements of the legal mechanism. Acts of interpretation of the norms of administrative law provide an opportunity to clarify and clarify the meaning and content of a regulatory prescription, in particular related to the use of administrative coercion. Relevant interpretations may be contained in the decisions of the Supreme Court of the Russian Federation. As an example, we can cite: Resolution of the Plenum of the Supreme Court of the Russian Federation No. 20 of June 25, 2019          "On some issues arising in judicial practice when considering cases of administrative offenses provided for in Chapter 12 of the Code of Administrative Offenses of the Russian Federation"^[2], etc.  

The principles underlie legal regulation in general and related to the use of administrative coercion, in particular. Norms – principles are imperative prescriptions, violation of which is unacceptable. It must be admitted that the system of principles for the application of administrative coercion is not defined in a normative way, which affects the effectiveness of its implementation. The principles of the application of administrative coercion are differentiated into material and procedural principles. Thus, S.M. Skvortsov attributed to the principles of the appointment of administrative punishment "... the principle of definiteness of the boundaries of punishments; concreteness of punishments; individualization of punishments, as well as the economy of punitive measures" ^{[23, p.21]}. As one can judge, these principles are of a material nature. M.F. Zabalueva attributed to the principles of administrative responsibility "... legality; expediency; humanism; responsibility for guilt; inevitability of responsibility" ^{[24, p.33]}. 

These principles continue to apply at the present time. But in addition to them, it is necessary to take into account a number of other principles of procedural importance. In particular, such as: the presumption of innocence; the principle of guaranteed appeal of procedural actions (decisions), as well as the principle of legal discretion in the application of administrative coercion, etc. The functionality of the principles reveals their place in the mechanism of administrative coercion, and their implementation largely guarantees compliance with the requirements of legality in the law enforcement process. Administrative coercion is always personalized, and this opportunity is provided by law enforcement acts. In this regard, V.A. Melnikov correctly noted that "... the only form of expression of the application of administrative coercion measures is an individual legal act of management in the form of an act-action or the issuance of an act-document" ^{[25, p. 46]}.

These legal acts activate the mechanism of administrative coercion, as well as specify it. The relevant acts include: a protocol on the application of a measure to ensure the proceedings in cases of administrative offenses, a resolution on the imposition of administrative punishment, etc. It should be noted that certain requirements are imposed on procedural documents, both in legal form and in content (Articles 27.4, 28.2). As A.K. Solovyova wrote at the time, "... the effectiveness of the consideration of an administrative offense case depends on the solution of one problem, the quality of procedural documents. Protocols on administrative offenses can be put in the first place here, they often lack data on the place and time of the commission of an administrative offense, information about witnesses, victims, there is no correct qualification of what was done" ^{[26, p.228]}. 

Thus, according to the Administrative Code, "a protocol is drawn up on administrative detention, which specifies the date and place of its compilation, the position, surname and initials of the person who drew up the protocol, information about the detained person, time, place and motives of detention" (Article 27.4).  

Procedural documents on the application of administrative coercion are also important from the position of guaranteeing the protection of the rights of a citizen in relation to which this coercion is applied. Thus, A.S. Dugenets correctly noted that "... in the implementation of the constitutional rights of citizens to protect their interests, issues of legal regulation of the delivery of a copy of the decision in the case of an administrative offense are called upon to play a role" ^{[27, p. 17]}. The indicated provision confirms the thesis that the mechanism of action of administrative coercion must be properly procedurally secured. Thus, it can be concluded that the mechanism of action of administrative coercion includes material and procedural norms, acts of application and interpretation, as well as a system of principles for the implementation of legal relations caused by the implementation of the corresponding type of state coercion. The mechanism of action of administrative coercion may be of a general nature, in connection with which it affects the specifics of the mechanism of implementation of procedural coercion, a special case of which are measures to ensure proceedings in cases of administrative offenses and measures of administrative responsibility.                         

The problem of administrative coercion is not new to the science of administrative law. However, the problems of the practice of its implementation, as well as the issues of ensuring the legality of its action, make it objectively necessary to address this problem from a doctrinal position. It should be noted that administrative coercion is being investigated as part of state coercion. This is due to the fact that the subjects of the application of administrative coercion are state authorities, both federal and regional levels. Among the subjects of coercion, a special place belongs to the police. This is due to the fact that the police is the most universal subject in the system of protecting public order and ensuring public safety.

Administrative coercion, despite the fact that, being part of the system of state coercion, has certain specific features that make it possible to identify it. Thus, administrative coercion is applied by a large number of bodies and officials representing them, this coercion entails very specific legal consequences that distinguish it from other types of state coercion.

The effect of administrative coercion leads to certain legal restrictions. Thus, as a result of the action of administrative coercion, the personal rights of citizens are restricted, while there are property and organizational consequences. Despite the serious legal consequences of administrative coercion, it is ultimately aimed at protecting and protecting the rights of citizens, ensuring law and order. During the implementation of administrative coercion measures, actions degrading human dignity, causing unjustified physical pain and suffering are not allowed.

Administrative coercion is structurally heterogeneous. The system of administrative coercion was formed evolutionarily. Currently, various groups of administrative coercion are included in this system. Thus, this system includes: measures of administrative restraint; measures to ensure the proceedings in cases of administrative offenses, as well as administrative penalties.

Each of the selected groups of measures also represents a certain system, so we can talk about the system of administrative penalties, as well as the system of measures to ensure the production of cases of administrative offenses.

Administrative enforcement measures, regardless of their type, include two components, material and procedural, only when these two components are combined, these measures can be implemented. The procedural form in the implementation of administrative coercion measures is of paramount importance, this is due to the need to comply with the requirements of legality, as well as the proper registration of the application of appropriate coercion.

  Administrative coercion is a law enforcement tool, and therefore is implemented as a result of the action of the law enforcement mechanism. The key element of the mechanism of administrative coercion is the norms of law, as well as acts of application of these norms. It should be noted that the legal basis of administrative coercion is quite diverse, but the "key" law defining the procedure for the application of administrative coercion is the Administrative Code. This is due to the fact that this law defines a system of administrative penalties, as well as a system of measures to ensure proceedings in cases of administrative offenses. Many measures of administrative coercion are applied in connection with the commission of an administrative offense, and therefore this type of coercion is closely related to administrative responsibility.

Administrative responsibility is a form of procedural and material coercion. The expression of administrative responsibility is administrative punishment. In addition to an administrative offense, the basis for the implementation of administrative coercion are other circumstances, in particular extraordinary events requiring the enforcement of administrative and legal measures (administrative and preventive measures). Among the measures of administrative coercion, a special place is occupied by measures of administrative and procedural coercion, which are necessary to obtain evidence in the case of an administrative offense and the execution of the decision in this case. Measures of administrative and procedural coercion include both measures to ensure the proceedings in cases of administrative offenses and other measures of procedural influence. Regardless of the type of administrative enforcement measures, the effectiveness of their action is predetermined by the requirements of legality, only in this case these measures of influence can achieve the set goal. 

Thus, the mechanism of administrative and legal regulation associated with the implementation of coercive measures is part of the protective mechanism. With this in mind, the mechanism for the application of administrative coercion measures includes both legal and non-legal elements, which together are designed to improve the quality of the application of a particular coercive measure, as well as to ensure the rule of law.           

^[1] Collection of legislation of the Russian Federation. – 2011. – No. 7. – St. 900.

^[2] Bulletin of the Supreme Court of the Russian Federation. – 2019. –  № 9. 

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