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2.2. Realisation by police of measures of remedial maintenance of manufacture on affairs about administrative violations Minors

The review of the scientific literature and dissertations specifies in indefatigable scientific interest to application of separate measures of maintenance PDAP, including on affairs with participation of minors [372].

Objective-subject aspects and is functional-target mission of these means allows to consider them as the generated legal institution. However the given legal institution under S.N.Mahinoj, A.I.Gevorkyan's fair remark demands both scientific judgement, and perfection of a legal regulation [373].

According to item 27.1 KoAP the Russian Federation on purpose «suppressions of administrative violation, an establishment of the person of the infringer, executing a process-verbal about administrative violation at impossibility of its drawing up on a place, maintenance of a timely and correct legal investigation about administrative violation and executions of the decision accepted on business the authorised person has the right to apply within the powers various measures of maintenance» [374], i.e. Formally certain ways of influence of police during administrative activity.

The given measures are narrowly connected with realisation of institute of administrative responsibility, precede on time to attraction to it of the infringer, creating for this purpose necessary conditions.

Questioning and expert interrogation within the limits of dissertational research has shown, that the greatest difficulty in application and the further perfection of a legal regulation following measures demand: physical examination on state of drunkenness (in available difficulties have specified 44,2 % of respondents, and also 54,5 % of respondents of expert group), administrative detention (33,8 %, expert group - 3,0 %), dostavlenie (29,2 %, in expert group - 30, 3 %) (item 18 of the appendix 1, item 16 of the appendix 2 see).

The generality of these measures consists that the offender should obey to will and the lawful order of the employee of police, to proceed with it in the specified place, to sojourn there a certain time interval before realisation of purposes PDAP.

Each of measures can be described on certain algorithm:

1) the application bases; 2) appointment (purposes) of application; 3) subjects of application; 4) an application order; 5) interdictions and restrictions at application; 6) a remedial order of registration of actions and its results.

According to ch. 1 item 27.2 KoAP the Russian Federation dostavlenie is «compulsory forwarding of the physical person with a view of executing a process-verbal about administrative violation at impossibility of its drawing up on a place of revealing of administrative violation, if drawing up

The report is obligatory »[375]. OVD (police) enter into the closed

The list of the bodies allocated with powers on application dostavlenija, and can apply the given measure.

Dostavlenie within the limits of PDAP is power of the police, provided item 13 ch. 1 items 13 FZ «About police» which should be distinguished from other bases dostavlenija. So, owing to item 1 of item 2 of item 21 FZ № 120-1999 [376] officials PDN have the right to deliver in

Divisions OVD of the minors who have made antisocial actions, and also neglected and homeless.

The actual basis of application dostavlenija is the act made by the physical person, containing administrative violation signs.

The purposes dostavlenija can be differentiated on the general and private. An overall aim dostavlenija - maintenance of a timely and correct legal investigation about administrative violation and execution of the decision accepted on business.

According to the private purpose dostavlenija it is possible to consider executing a process-verbal about administrative violation at impossibility of its drawing up on a place of detection of administrative violation if executing a process-verbal is a compulsory procedure (item 27.2 KoAP the Russian Federation).

Realisation occasions dostavlenija are circumstances which do impossible executing a process-verbal on a revealing place. They can be objective and subjective character. It is necessary to carry to objective occasions:

- Impossibility to establish the person of the offender (absence at it documents, absence of witnesses which data can inform on it, impossibility to contact TSAB on wire or a mobile communication);

- Necessity of performance of legal proceedings which cannot be executed on a place of fulfilment of an offence.

Subjective occasions are connected with a physiological condition or behaviour of the offender:

- Finding of the person in state of drunkenness;

- Obstacle of the offender to executing a process-verbal on a place [377].

The question on a place dostavlenija is basic

Minor offenders.

Under the general rule minor offenders are delivered in part OVD on duty or PDN, and persons being in a condition of alcoholic, narcotic or other toxic intoxication, in the absence of indications of medical character [378] are delivered only in parts of territorial bodies of the Ministry of Internal Affairs of Russia on duty.

Thereupon the conflict rule containing in item 9.3 of the departmental instruction, approved by the order of the Ministry of Internal Affairs from January, 17th, 2006 № 19 demands change, according a right to employees PPSP to deliver the minors who are in state of drunkenness «in PDN (if they are out of a premise of territorial body of the Ministry of Internal Affairs of Russia at regional level)» [379].

Studying of affairs about administrative violations, certificates of public prosecutor's reaction, judgements has shown, that typical law-breakings in police activity at dostavlenii is the following:

1) dostavlenie minors in OVD, not connected with an offence (for an establishment of the person and other circumstances important for maintenance of transfer to his parents (to persons, their replacing) or to the persons who are carrying out actions about participation of children) [380];

2) absence in materials of business of the report about dostavlenii in police division, and also absence of corresponding record in the report on administrative detention of the minor [381];

3) dostavlenie the persons who have made administrative violation, for transfer to the person on duty on analysis with drawing up of the corresponding official report, without independent remedial registration of the fact of application of a measure of maintenance according to KoAP the Russian Federation.

For definition of a time interval dostavlenija KoAP the Russian Federation operates with an estimated category «in possible the short term» which is supported by many scientists-administrativisty [382].

The position of the legislator has received the argument in definition of the Constitutional court of the Russian Federation which have specified, that the rule of law it is impossible to provide and consider in each separate case concrete circumstances (presence or absence of vehicles) and conditions (climatic conditions) in which it occurs [383].

However a number of scientists believe, that to define term size dostavlenija it is necessary to allocate with the right body of an administrative jurisdiction [384], others consider, that it is necessary to establish approximate [385] or limiting [386] term dostavlenija, the aggregate term dostavlenija - till one o'clock, and exclusive term in the absence of the bases for administrative detention - till two o'clock [387], or to limit it to 3 hours [388].

Concerning time restriction dostavlenija 3 hour interval it is represented to us a position absolutely proved and logical, since. To any remedial measure, as well as as a whole in PDAP, dynamism, speed and urgency should be inherent, and the legislator should focus on it pravoprimenitelja.

Separate authors consider necessary to consolidate dostavlenie and administrative detention in one preventive punishment, giving reason it is logic interrelation of the given measures and registration by their one remedial document - the report on administrative detention [389].

The given point of view is represented not absolutely proved, since. dostavlenie is not in a direct relationship of cause and effect with administrative detention, and application of one remedial measure does not attract necessity of application another. Therefore in KoAP the Russian Federation the legislator has standard fixed an alternative order of remedial registration dostavlenija: executing a process-verbal or «record in the report on administrative violation or on administrative detention» [390].

In our opinion, interpretation ch. The Russian Federation the conclusion allows to draw 3 items 27.2 KoAP, that executing a process-verbal about administrative dostavlenii is obligatory, only in those cases if it is the unique document during PDAP, and subsequently other remedial documents are not constituted.

It enters a collision with under. 1 items 2 of item 21 FZ № 120-99, item 79 of Instruction PDN [391] providing executing a process-verbal on each fact dostavlenija of the minor, item 8.1 of the order of the Ministry of Internal Affairs of Russia from April, 30th, 2012 № 389 [392], providing alternatively to executing a process-verbal official report drawing up.

Reports on application of measures of maintenance of manufacture,

The Russian Federations provided by chapter 27 KoAP, are sources of proofs on affairs about administrative violations.

With a view of unification dostavlenija the minor in bodies of system of preventive maintenance it is considered expedient in all NPA to fix the report as the unique document certificating given action. All employees of police to allocate with the right on its drawing up and a duty to notify parents, legal representatives about dostavlenii the minor.

Absolutely proved and necessary it is represented

The typified form of the report about dostavlenii the minor, developed by the Ministry of Internal Affairs of Russia [393].

In connection with stated, we offer:

- To state ch. 2 items 27.2 KoAP the Russian Federation "Dostavlenie" in the following edition:

«2. Dostavlenie it is carried out in time no more than three hours which can be extended in unusual cases with the account of circumstances of business»;

- To add ch. 3 items 27.2 KoAP the Russian Federation "Dostavlenie" following words: «About dostavlenii the minor the process-verbal which copy is handed over to the minor or his parents (legal representatives)» is executed.

- To add item 27.2 KoAP the Russian Federation "Dostavlenie" with a part 4 following maintenances:

«4. About administrative dostavlenii minor enforcement authority in office accommodation his parents or other legal representatives» are immediately notified.

One of essential short stories FZ «About police» is fastening as the independent chapter (gl. 4) applications by police of separate measures of the state compulsion which begins with item 14 "Detention".

Regarding 2 specified articles rather impressive list consisting of thirteen categories of persons in which relation application by employees of police of such measure as detention is possible is resulted.

The analysis ch. 4 items 14 FZ «About police» allow to establish, that the legislator has admitted «mixture of various kinds of detention» [394], and under the term "detention" has designated various by the legal nature, the basis and the maintenance of action of employees of police:

1) detention, which is estimated from the moment of actual restriction of freedom (made on rules of criminal procedure manufacture [395]), i.e. Carried out before dostavleniem in police;

2) the detention estimated since the moment dostavlenija in office accommodation division polices (administrative).

For example, in Byelorussia, the approach of calculation of terms of administrative detention from the moment of actual detention [396] is realised. The Russian scientists also stated ideas about necessity of a uniform order of calculation of terms of detention for administrative violations and crimes - from the moment of actual detention [397].

However such approach is represented to us inexpedient as KoAP the Russian Federation, unlike UPK the Russian Federation, provides a measure considered by us is detailed above - dostavlenie, to refuse from which hardly is proved.

Within the limits of the further reasonings we will speak only about the second kind of detention - administrative detention.

According to item 5 of item 2 of item 14 FZ «About police» the police possesses the right to detain persons in which relation manufacture on affairs about administrative violations is led, - on the bases, is perfectly in order and for term which are provided by the legislation on administrative violations.

In opinion And. N Kramnik, administrative detention is «the compulsory influence expressed in short-term personal restraint of actions» [398], that is the forced measure limiting freedom of the person on the short term.

According to ч.1 item 27.3 KoAP the Russian Federation administrative detention can be applied in unusual cases: if it is necessary for maintenance of a correct and timely legal investigation about administrative violation and in connection with decision execution on business about administrative violation.

According to scientists, the juridiko-technical design of the given norm contradicts «the elementary logic» [399], and words in "unusual cases" should not contain in the given norm [400].

Really, difficult present a situation in which there can be a requirement incorrectly and with infringement of terms to consider case, therefore the formulation «in unusual cases» is inappropriate in a logic chain with correct (i.e. Objective, full, all-round) and timely (in terms statutory) a legal investigation.

The detention purpose is creation of conditions for manufacture carrying out on business about corresponding administrative violation, checks of the facts, acknowledgement or elimination of the concrete suspicions proving detention.

The constitutional court of the Russian Federation has specified, that events and the data which have become by the basis for application of detention as the preliminary coercive measure for the purpose of maintenance PDAP, «can appear subsequently insufficient for decision-making on administrative responsibility. The requirements causing legitimacy of detention, do not assume, that the official already at the moment of detention should have a full set of proofs, sufficient for adjudication in essence» [401].

Officials of law-enforcement bodies (police) have the right to carry out administrative detention:

1) at revealing of administrative violations, business about which according to item 23.3 KoAP they consider the Russian Federation;

2) revealing of administrative violations, on affairs about which according to item 28.3 KoAP the Russian Federations constitute reports on administrative violations;

3) at revealing of any administrative violations in case of the reference to them of the officials, authorised to constitute reports on corresponding administrative violations.

The minor offender can be detained for the term of no more than three hours, and in a case if the minor offender is in a condition of alcoholic intoxication, term of administrative detention starts to be estimated according to ch. 4 items 27.5 KoAP the Russian Federation «from the moment of sobering», which number of authors name "rubber" [402], conditioning for abusings from the party pravoprimenitelja at definition of the moment of sobering [403].

Concerning three-hour term of detention of minors we consider a legislative position firm, despite available offers of increase in the given term [404].

The term increase can lead to impossibility of maintenance of the given measure owing to absence in the majority of territorial bodies of the Ministry of Internal Affairs of Russia of organizational conditions. So, according to ch. 3 items 27.6 KoAP the Russian Federation minors in which relation administrative detention is applied, contain separately from adult persons, and according to item 7 of the Governmental order of the Russian Federation from October, 15th, 2003 № 627 [405] the separate maintenance of men and women, persons with signs of infectious diseases and healthy is necessary. At simultaneous dostavlenii adults and minors of a different floor, and necessity of their administrative detention it is required four separate premises.

Really, in operating NPA the question on when there comes the moment of sobering of the arrested person is not settled. Categories "intoxication"

And "sobering" have not legal, but medical character. Hence, the employee of police at the decision of a question on the moment of sobering of the minor should solve a question which is out of a plane of its special knowledge, therefore subjectivity here it is inevitable.

Judiciary practice materials testify, that courts start with the minimum six-hour term necessary for sobering. For example, gr. T 16 hour has been found out in state of drunkenness nearby. 00 minutes then it immediately delivered in a part of a department of police on duty. By court it has been established, that the moment of sobering T should be defined at least at 22 o'clock. 00 minutes, and term of administrative detention followed estimate since specified time [406].

A number of researchers suggest to establish in the law the maximum term for sobering of the person [407], time of sobering without the medical

The help [408], definition of the moment of sobering by the medical worker (the doctor-expert in narcology, the medical assistant) [409].

It is necessary to notice, that last offer is already realised in ch. 1 items 789 of the Code of republic Kazakhstan about administrative violations [410].

Certainly, given offers can be theoretically proved and included in the law, but their practical realisation will meet unsoluble organizational difficulties. Hardly the employee of police in a countryside can invite at night the doctor - of the expert in narcology, owing to that in many regional medical institutions there are no such experts, and available medical assistants will wish to leave the house and to make distance in some tens kilometres during such time of days.

The establishment of a deadline for sobering is represented to us also inexpedient as it is in dependence from set of factors: degrees of intoxication, character of the consumed substances which have caused the given condition, age and a physiological condition of the consumer etc.

In our opinion, V.N.Horkov absolutely fairly names the norm regulating a notification procedure about the rights and duties of the arrested person (ch. 5 items 27.3 KoAP the Russian Federation), «obscure and ambiguous» [411].

The system analysis of norms KoAP the Russian Federation about administrative detention allows to allocate only one right of the arrested person: on the notice in the shortest terms of relatives, administrations in a place of its work or study, the defender (ch. 3 items 27.3 KoAP the Russian Federation).

At application ch. 3 items 25.5 KoAP are necessary for considering the Russian Federation, that as KoAP the Russian Federation defines the form of the certificate of powers only the lawyer, not regulating a question of registration of powers of the defender at participation in the business, the given question should dare with reference to general provisions ch. 2 items 53 GPK the Russian Federation [412].

The part 5 items 14 FZ «About police» expands the list of the specified persons for the account of the translator. Certainly, detained persons who are not knowing language on which manufacture is led, have the right to reception of the objective information. During too time in practical activities there are complexities in maintenance with the translator knowing rare language. Thereupon we support the offer on necessity of creation of a databank on persons which possess special knowledge in the field of foreign languages [413] and can render the potential help as the translator, study of the mechanism of payment of their work besides is necessary.

The part «About police» specifies 7 items 14 FZ in the right of the arrested person to one telephone conversation, i.e. On the right to uncertain quantity of phone calls before successful connection with the subscriber, which it causes (the close relative or the close person), for the purpose of the notice on the detention and the location.

It is represented, that the granted rights should be produblirovany in KoAP the Russian Federation and should be listed in the formalized form of the report on administrative detention.

Besides, unconditional support is deserved by S.N.Mahinoj's position that in KoAP the Russian Federations should be fixed duties of the detained persons [414]. To such duties can be carried: performance of lawful orders of the employee of police, a duty of the minor to inform the information on the parents (legal representatives), etc.

In ch. 8 items 14 FZ «About police» are given the additional rights to minors, the duty of employees of police is established at detention of the minor immediately to notify on it his parents or legal representatives, that, in our opinion, demands reduction ch. 4 items 27 KoAP the Russian Federation according to the given norm.

The considered rights and duties correspond to requirements of norms of international law which define, that at the maintenance of minors in police it is necessary to consider their legal status, age, their vulnerability and maturity level, to inform them immediately in the accessible form of the right and a guarantee. «At interrogation of the minor at police, as a rule, there should be his parents / the legal representative or other adult knowing the child. Also to the minor should be accorded a right to appointments to the lawyer and the doctor...» [415].

To legal representatives of the physical person except parents, carry adoptive fathers, trustees or trustees (ch. 2 items 25.3 KoAP the Russian Federation).

Unfortunately, the law does not define the form and a notification procedure, therefore we consider, that it is necessary to fill the given blank. In connection with universal prevalence of telecommunication, we believe, that it should become by phone (mobile, office) before successful connection with one of parents or the legal representative. In cases of detention of the minor in small settlements or on small distance from a residence (work) of notified persons the employee of police is able to do it personally.

In necessity of regulation of the given legal relations specifies the analysis of materials of judiciary practice. For example, the Lublin regional court of of Moscow had been recognised lawful actions of inspector ODN by 1st GOM Mytischi on detention realisation, dostavlenija and directions on physical examination of the minor, since. From

Business materials followed, that last has refused to call to the parents, and to inspector ODN has refused to give phone numbers of parents [416].

Studying of affairs about administrative violations has shown, that typical infringements in police activity at dostavlenii are connected with remedial registration of reports on administrative detention:

1. At reflexion of time of detention time of actual restriction of freedom, instead of time of the beginning of detention (dostavlenija persons in a corresponding department (branch) the Ministry of Internal Affairs of Russia or time of its sobering) is underlined.

2. Time of the beginning and the detention termination is underlined only in hours, without instructions of minutes.

3. Motives of detention are not specified or instead of motives specify the detention bases (suspicion in administrative violation fulfilment) or the purposes (necessity of executing a process-verbal about administrative violation).

4. The report on administrative detention has no signature of the detained person or record about refusal to sign the report.

On the basis of stated we suggest to make changes to article 27.3 KoAP the Russian Federation «Administrative detention», having added with its part 4.1 following maintenances:

«4.1. To the minor if other is not established criminally - the remedial legislation of the Russian Federation, possibility to notify parents or legal representatives about the fact of its detention and the location by realisation of one telephone conversation with use of personal or office phone should be given.

At the desire of the minor, in the presence of territorial availability, it is necessary to organise the personal notice, behind an exception

Cases which are provided by a part of 11 articles 14 of the Federal act «About police».

Parts «4.1, 4.2» specified articles accordingly to consider as parts «4.2,

4.3».

As administrative detention provides executing a process-verbal, to add article 27.4. KoAP «the report on administrative detention» a part 3 following maintenances:

«In the report of detention of the minor the mark about the fact of the notice of parents or legal representatives with instructions of a way and time of their notice or on the fact of refusal by the minor becomes to inform data on such persons with instructions of motives of such refusal».

Besides, in Manual about an order of discharge of duties and realisation of police powers in a part of territorial body of the Ministry of Internal Affairs of Russia on duty after dostavlenija the citizens, approved with the order of the Ministry of Internal Affairs of Russia from April, 30th, 2012 № 389ь to add point 8.2. Words: «data on parents, legal representatives of the minor person».

One more of measures of maintenance PDAP is physical examination on state of drunkenness.

The right to direct and (or) to deliver to physical examination in the corresponding medical organisations of citizens for presence definition in an organism of alcohol or narcotics if the result of survey was necessary for acknowledgement or a refutation of the fact of fulfilment of administrative violation and an objective legal investigation, it is given employees of police of item 14 ч.1 item 13 FZ «About police». [417]

In 2014 the given measure has been established item 27.12.1 KoAP РФ1, being logic continuation of the norm containing in item 27.12 KoAP and extending on legal relations, connected with management of vehicles.

Hence, in the operating is administrative-delictual legislation it is possible to allocate two kinds of physical examination for state of drunkenness:

1) the persons operating a vehicle of the corresponding kind (item 27.12 KoAP the Russian Federation);

2) other persons on affairs about the administrative violations which have been not connected with maintenance of transport safety (item 27.12.1 KoAP the Russian Federation).

Formulating norm of item 27.12.1 KoAP the Russian Federation the legislator, has not specified the purpose of application of the given coercive measure. Interpretation of item 27.1 KoAP the Russian Federation allows to reveal only one purpose which was pursued by the legislator - «a correct legal investigation».

If in item 27.12 KoAP the Russian Federation the purpose of application of physical examination and physical examination is represented enough clear - validity acknowledgement presekatelnoj a measure consisting in discharge from management by a vehicle of the person which bears in itself potential threat for all participants of traffic, and qualifications of corresponding structures of administrative violations the purpose of the measure provided by item 27.12.1 KoAP the Russian Federation, is not so obvious, and decision-making on its application is [418] under the influence of the subjective discretion of the employee of the police applying the given measure [419].

In our opinion, proceeding from sense of the law application of the specified measure is necessary at qualification of offences in which state of drunkenness acts as an obligatory sign of structure (item 6.9, ch. 4.1, 4.2 items 20.8, item 20.22 KoAP the Russian Federation), and also an establishment of one of the circumstances aggravating administrative responsibility (item 6 of item 1 of item 4.3 KoAP the Russian Federation), - administrative violation fulfilment in state of drunkenness which comes under to finding-out at a legal investigation (item 4 of item 26.1 KoAP the Russian Federation).

A. J.Sokolov considers, that such necessity arises at calculation of term of administrative detention of the person who are in state of drunkenness (ch. 4 items 27.5 KoAP the Russian Federation) [420], that is one of maintenance measures are applied to realisation of other measure.

Researchers absolutely fairly consider, what not all persons in which relation there are good causes to believe, that they are in state of drunkenness, should be directed on physical examination [421].

B. I.Surgutskov, D. V.Pivovarov consider, that the given measure is necessary for applying only to minors and the persons who have made administrative violations, attracting as punitive measures: 1) deprivation of the special right given to the physical person; 2) administrative arrest; 3) obligatory works;

4) an administrative interdiction for visiting of places of carrying out of official sports competitions in their days проведения1.

We believe necessary to notice, that application of a considered measure to minors is interfaced with considerable pravoogranichenijami, the financial expenses connected by them dostavleniem in medical institutions, additional psychoemotional loading for the persons who have not reached age of administrative responsibility. Owing to it we oppose total survey of minors on state of drunkenness, and we insist on criterion fastening on which realisation of the given coercive measure is possible.

In our opinion, as the unique purpose of the given measure of maintenance it was expedient to establish fastening of proofs on administrative violations in which design state of drunkenness acts as an obligatory element.

At physical examination carrying out on a condition of narcotic and toxic intoxication concerning minors it is necessary to consider the features provided by the legislation.

So, vp. 2 ch. 2 items 20 of the Federal act «About bases of health protection of citizens in the Russian Federation» are established an imperative rule that at physical examination of the minor with a view of an establishment of a condition narcotic or other toxic опьянения2 (it is allocated by the author) it is necessary to receive the informed voluntary consent to medical intervention from one of parents or other legal representative. [422 [423]

The right to the information voluntary consent is expressed that before realisation of medical intervention by the medical organisation the consent to rendering of medical services on the basis of granting by the medical worker in the accessible form of the information on the purposes methods of rendering of medical aid is enquired, possible risks, etc.

The order of a summer residence of the informed voluntary consent to medical intervention is certain by the order of Ministry of Health of Russia from December, 20th, 2012 № 1177н1.

Now in GD FS the Russian Federation is the draught federal law № 1122377-6, brought by the State Meeting - the Republics Bashkortostan Kurultaem 2, providing introduction of a similar order for physical examination of minors on a condition of alcoholic intoxication.

In our opinion, acceptance of the given law can complicate procedure of attraction of parents (legal representatives) to administrative responsibility first of all under item 20.22 KoAP the Russian Federation by creation of additional remedial difficulties of reception of proofs on business, lead to unreasonable increase in number of the minor persons who have avoided preventive influence from party OVD.

Thereupon D.A.Gazizova's considering position deserves support, that the legislator should extend a rule, containing in item 4 ch. 9 items 20 of the Federal act from November, 21st, 2011 [424 [425] № 323-FZ, supposing medical intervention without the consent concerning the minor who has committed a crime, and on the persons who have made administrative violations [426], taking into account instructions of the accurate purpose in item 27.12.1 KoAP the Russian Federation.

The governmental order of the Russian Federation from January, 23rd, 2015 № 37 approves direction Rules on physical examination of the persons who have made administrative violations (except the persons operating a vehicle) [427].

Point 5 of the given Decision provides a notifying order of the notice of parents or legal representatives at a direction on physical examination of the minor [428], conflicting with item 2 ch. 2 items 20 of the Federal act from November, 21st, 2011 № 323-FZ, providing their consent at a finding of minors in narcotic and toxic intoxication.

To direct the citizen on survey have the right the officials, authorised to constitute reports on administrative violations (item 28.3 KoAP the Russian Federation).

About a direction on survey the process-verbal which copy is handed over to the directed person is executed.

Before sending the infringer in medical institution, the official is obliged to take measures to an establishment of its person. Data on absence of documents at the person who are coming under to physical examination, and also about an official source of the information with which help in this case the official its person is established, are specified in the report on a direction in physical examination. If the citizen refuses to pass survey, the report is all the same constituted, but in it the mark about refusal in the presence of two understood is put.

According to Rules, the infringer goes on survey on the basis of estimated concept «if there are good causes to believe, that it is in state of drunkenness» [429].

Now the list of the bases (criteria) more korotkijpo to comparison with earlier operating certificate [430] and the certificate regulating given procedure concerning the driver of a vehicle, [431] also contains in item 6 of the Order of Ministry of Health of Russia from December, 18th, 2015 № 933н [432] (the appendix 13 see).

Physical examination is spent in the medical institutions having the licence for carrying out of survey on state of drunkenness.

So, the basis for decision cancellation about amercement on business about administrative violation was that results of survey of the minor on the state of drunkenness, received with use "Alkotestora", were not admissible the proof confirming fulfilment of administrative violation since. Have been received with infringement of requirements of the legislation [433].

In our opinion, for realisation of a principle of profitability and efficiency of manufacture on affairs about administrative violations it is necessary to simplify procedure of survey of minors on a condition of alcoholic intoxication if that does not act as an obligatory sign, forming independent structure of an offence (item 6.9, item 20.22 KoAP the Russian Federation).

We consider, that as the circumstance aggravating administrative responsibility minor (item 6 of item 1 of item 4.3 KoAP the Russian Federation), it is necessary to make an establishment of state of drunkenness under the simplified form. For example, with use of the devices developed on certain standards for definition of steams of spirit in exhaled air, thereby having relieved pravoprimenitelja from enough difficult, unnecessary, interfaced to financial expenses, additional loading for procedure medical institutions.

Taking into account stated, we offer:

Item 4 ch. 9 items 20 of the Federal act from November, 21st, 2011 № 323 FZ [434] after a word "crime" to add with words: «and administrative violation»;

ch. 1 item 27.12 KoAP the Russian Federation after words «on state of drunkenness» to add with words: «if the establishment of such condition is necessary for reception of the proofs important for qualification of an offence».

Studying of realisation by police of measures of remedial maintenance PDAP of minors allows to formulate following conclusions:

1. On the basis of the analysis cumulative given (theoretical researches, the analysis of the current legislation, materials of interrogation of employees OVD) the requirement for more accurate regulation separate obespechitelnyh measures is defined at PDAP with participation of minors - dostavlenie, detention, physical examination on state of drunkenness.

2. With a view of an accurate regulation of actions of employees of police and increase of guarantees of maintenance of the rights and freedom of minors at application of measures of the state compulsion offers on legislative restriction of term dostavlenija, to obligatory remedial registration of the given measure concerning minors by the report and the immediate notice of parents on them dostavlenii in territorial OVD are made.

3. The order of administrative detention of the minors, demanding modification and additions in article 27.3 KoAP the Russian Federation «Administrative detention» is specified, necessity of additional guarantees is proved by minor who are directed on possibility granting to notify parents or legal representatives on the fact of its detention and the location by telecommunication.

4. For realisation of a principle of profitability and efficiency of manufacture necessity of instructions for the law as the unique purpose of physical examination on state of drunkenness (item 27.12.1 KoAP the Russian Federation) maintenance of the proofs important for qualification of only separate structures of offences (item 6.9, 20.22 KoAP the Russian Federation) is proved, having relieved thus pravoprimenitelja from enough difficult, unnecessary, interfaced to financial expenses, additional loading for procedure medical institutions.

2.3.

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A source: Kirjuhin Vladimir Viktorovich. ADMINISTRATIVE ACTIVITY of POLICE ON PREVENTIVE MAINTENANCE of OFFENCES of MINORS: TEORETIKO-LEGAL BASES And PERFECTION DIRECTIONS. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2017. 2017

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More on topic 2.2. Realisation by police of measures of remedial maintenance of manufacture on affairs about administrative violations Minors:

  1. CHAPTER 1. MEASURES OF MAINTENANCE OF MANUFACTURE ON AFFAIRS ABOUT ADMINISTRATIVE VIOLATIONS IN SYSTEM OF MEASURES OF THE ADMINISTRATIVE COMPULSION APPLIED BY EMPLOYEES OF POLICE
  2. § 3. Mission of measures of maintenance of manufacture on affairs about the administrative violations encroaching on a public order and the public safety, and guarantees of the rights of citizens during their application by employees of police
  3. § 2. Realisation by manufacture police on affairs about the administrative violations connected with occurrence in a condition of alcoholic intoxication In public places
  4. CHAPTER 2. FEATURES OF APPLICATION BY EMPLOYEES OF POLICE OF SEPARATE MEASURES OF MAINTENANCE OF MANUFACTURE ON AFFAIRS ABOUT THE ADMINISTRATIVE VIOLATIONS ENCROACHING ON THE PUBLIC ORDER AND THE PUBLIC SAFETY
  5. § 2. The General characteristic of measures of maintenance of manufacture on affairs about the administrative violations encroaching on a public order and the public safety
  6. Brewers Daniel Vladimirovich. MEASURES of MAINTENANCE of MANUFACTURE ON AFFAIRS ABOUT the ADMINISTRATIVE VIOLATIONS ENCROACHING ON the PUBLIC ORDER And the PUBLIC SAFETY, POLICES APPLIED by EMPLOYEES. The DISSERTATION on competition of a scientific degree of the master of laws. Omsk 2017, 2017
  7. ANNENKOV Alexey Jurevich. is administrative-REMEDIAL And ORGANIZATIONAL-TACTICAL BASES of ARREST of the GOODS, VEHICLES And OTHER THINGS BY MANUFACTURE ON AFFAIRS ABOUT ADMINISTRATIVE VIOLATIONS. The dissertation AUTHOR'S ABSTRACT on competition of a scientific degree of the master of laws. Moscow, -2008 2008
  8. the Second paragraph «Administrative investigation in system of stages of manufacture on affairs about administrative violations»
  9. CHAPTER 2. FEATURES OF MANUFACTURE ON AFFAIRS ABOUT THE ADMINISTRATIVE VIOLATIONS CONNECTED WITH DEFAULT BY PARENTS OR OTHER LEGAL REPRESENTATIVES OF MINOR DUTIES UNDER THEIR MAINTENANCE AND EDUCATION
  10. § 3. Features of manufacture on affairs About administrative violations in the field of ground relations
  11. § 3. Organization-legal bases of excitation by police of affairs about the administrative violations provided by a part of 1 article 20.25 KoAP the Russian Federation
  12. § 1. Excitation and disposal of legal proceeding about administrative violations for default of duties under the maintenance and education of minors
  13. § 4. Measures of administrative compulsion, are applied by police in the mechanism of maintenance of transport safety