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Section 2. Administrative law
https://doi.org/10.29013/EJLPS-20-1-10-13
Ivantsov Volodymyr Oleksandrovych, postdoctoral student, Kharkiv National University of Internal Affairs, E-mail: v.a.ivantsov@gmail.com
SPECIAL PRINCIPLES OF CERTAIN PROCEDURES IN THE ADMINISTRATIVE-TORT LEGISLATION
Abstract. The article focuses on the fact that the basis of the qualification process of any administrative offense is its principles. The following was stated: the principles of administrative-legal qualification are not fixed today in either administrative legislation or in the theory of administrative-legal qualification. Therefore, the author proposed his own vision of the concept of "principles of administrative legal qualification".
Keywords: administrative-tort principles, qualification, administrative offenses, public order, public safety.
The meaning of administrative law principles during the process of the realization of administrative liability will mark the main basics of administrative and legal relationships connected to defining the administrative offenses, their qualification, bringing to administrative responsibility, the implementation of administrative and tort proceedings (proceedings on administrative offenses).
The basis of the qualification process of any administrative offense, whether it's an offense-like act similar to petty hooliganism, bringing a minor intoxicated or fortunetelling in public places, should be the main provisions of a dogmatic nature, which the qualification subject should be guided by during the qualification of an administrative offense.
Principles as a legal category have always been the main topic of research by specialists in the general theory of state and law (S. Alekseev, A. Petrushin, S. Pogrebnyak, O. Skakun, M. Zvik) and administra-
tive law (V. Averyanov, Yu. Bityak, V. Zui, T. Kolo-moets, V. Kolpakov), given their specific legal nature, role and importance for the development of jurisprudence. At the same time, each area of administrative law has both general principles and specific (special) principles that correspond to the scope of administrative and legal regulation. One of these areas is the administrative-tort sphere, the system of principles of which, including the principles of administrative offense proceedings, the understanding of which now needs to be rethought due to the rapid development of legislation and the science of administrative law and the lack of a textual representation of the first among the provisions of the normative -legal acts.
The principles of administrative qualification are not currently enshrined either in administrative law or in the theory of administrative qualification. Therefore, we consider it necessary to offer our vision of the concept of "principles of administrative
legal qualification" and define them as guidelines, principles and requirements that characterize the content of qualification of administrative offenses and are mandatory for subjects to comply with administrative and jurisdictional powers.
A detailed analysis of the current regulatory legal acts, in particular, the norms of the Constitution of Ukraine and administrative legislation (Code of Ukraine on Administrative Offenses (CUAO), Code of Administrative Procedure of Ukraine) of certain provisions of international legal acts that have been ratified by the Verkhovna Rada of Ukraine and form an integral part of Ukrainian legislation, and general principles of administrative law as a branch of law allowed us to propose a system ofprinciples of administrative qualification ii. Such a system can include the following principles: legality; equality of citizens before the law; publicity; objectivity; exhaustibility; personalization completeness of administrative qualifications; resolving disputes in favor of the person whose actions are qualified; the inadmissibility of a double charge of an administrative offense; immutability; professionalism.
The principle of legality is that all information about an administrative offense, including reporting or obtaining evidence and information about unlawful encroachment on public order and public safety in another way, for example, in the process of patrolling, must be obtained exclusively by law. Otherwise, it cannot be taken into account when qualifying an administrative offense. The principle of legality also requires mandatory consideration of circumstances in which administrative liability is excluded (Part 2 of Art. 58 of the Constitution of Ukraine [1]. Thus, the actions of the offender must be qualified according to the norms of administrative law that were in force at the time the administrative offense was committed, without assuming qualification by analogy. So, apply the administrative norm prescribed by law.
The principle of equality of citizens before the law and the body (official making the qualification of an administrative offense) follows from parts 1 and
2 of Art. 24 of the Constitution of Ukraine: citizens have equal constitutional rights and freedoms and are equal before the law [1].
The principle of publicity of the qualification of an administrative offense is that the authorized bodies (officials) implement it officially, on behalfof the state. Only such qualifications will lead to legal consequences.
The principle of objectivity of the qualification of an administrative offense excludes the subjective assessment of the authorized body (official) that carries it out. When conducting qualifications, it is necessary to be guided solely by information about the circumstances of the case obtained in compliance with the principle of legality.
The principle of exhaustibility guarantees the qualification of an administrative offense under such a legal norm within the framework of the CUAO will finally describe its composition, with the obligatory condition of reference to the relevant part, paragraph, subparagraph of the applied article.
The principle of personalization requires the subject of qualification to conduct it, taking into account the features and individual characteristics of both each administrative tort and each personality of the offender, existing at the time of the administrative offense and in the implementation of administrative-legal qualifications.
The principle of completeness of qualifications ensures the need to take into account all, without exception, acts that a person committed. The application of which selective approach or qualification of a separate part of the committed acts is unacceptable.
The principle of resolving disputes in favor of a person whose actions qualify is directly enshrined in part 3 of article 62 of the Constitution of Ukraine, according to which evidence obtained illegally cannot form the basis of the charge, as well as the assumption [1]. So, when an authorized subject has doubts about the qualification of an administrative offense, he is obliged to interpret the latter only in favor of the accused.
The principle of the inadmissibility of a double charge of an administrative offense follows from Art. 61 of the Constitution of Ukraine: no one can be prosecuted twice for the same offense of the same type [1]. That is, an administrative offense encroaching on the sphere of public order and security cannot be qualified according to one norm of the CUAO, if before that, when carrying out a different qualification of an act of a person, a norm has already been defined that covers the above offense.
The principle of the immutability of qualifications protects against its arbitrary (unreasonable, unfounded) change. The grounds under which a change in qualification is allowed are: 1) the implementation of an error in qualification, which became a factor that led to incorrect qualifications; 2) changes in the circumstances of the case: the emergence of new or invalidation already established; 3) exposing the fact of knowingly incorrect qualifications, that is, the fact of abuse of a person who has been granted the right by the state to qualify administrative offenses in the field of public order and public safety.
The principle of professionalism is closely intertwined with the principle of publicity. The entities that carry out the qualification must have sufficient theoretical knowledge and professional skills for its implementation, since the legal consequences of conducting an official qualification in any case affect a person through the imposition of an administrative penalty for the offense. In addition, it is necessary to create an appropriate theoretical base in the form of methodological advice, clarifications, letters, etc., which will orient officials towards the implementation of the right qualifications and explain how to correctly resolve disputes in the qualification of administrative offenses in the field of public order and public safety.
The qualification of offenses in the field of ensuring public order and public safety has its own characteristics, which are reflected in the principles of its implementation. Among them, it is necessary to name the principles: timely and quick response to
an administrative offense and the implementation of its qualifications; maintaining a stable balance of interests of the state, society and citizen; delimitation of administrative offenses in the field of ensuring public order and public safety from undifferentiated criminal offenses; the use, development and improvement of the methodological base for the qualification of administrative offenses in the field of public order and public safety; taking into account international experience in the implementation of the qualification of offenses in the field of public order and public safety.
The principle of timely and quick response to an administrative offense and the implementation of its qualifications must be respected in the process of identifying an administrative tort and consist of a quick and adequate qualification. In this case, the subject of qualification will be able to stop the offense and prevent its new commission and at the same time not violate the rights and freedoms of the offender. This principle is of particular importance in the field ofpublic order and public safety, because both law and morality play an important role here: the subject of qualification, interacting with the offender in this process (at the place of the offense), must not only correctly qualify the offense, but and convey the negative consequences of qualification and, in general, the offense itself to the offender. Most of these offenses are committed in public places, and therefore their termination usually takes place in front of many people, the correct actions of the subject of qualification in such circumstances can be a good example of incorrect behavior for others and thereby prevent the emergence of new administrative offenses. Timeliness and speed of response to any administrative offense, encroaching on public order and public safety, due to the fact that the commission of such administrative offenses as: smoking tobacco in prohibited places (Art. 175-1 CUAO [2]); purchase of moonshine and other strong alcoholic beverages of domestic production (Art. 177 CUAO [2]); drinking beer, alcoholic, low alcohol
drinks in places prohibited by law or appearing in public in a drunken state (Art. 178 CUAO [2]); gambling, fortune telling in public (Art. 188 CUAO [2]) etc., an offender can easily hide his offense. For example, a cigarette can be thrown away, a bottle of alcoholic drink hidden, approximately the same situation occurs with gambling objects (cards, dice, etc.).
The principle of maintaining a stable balance of interests of the state, society and citizen. The establishment of public order and public safety is the task of the state, the implementation of which ensures the preservation of the interests of society as a whole and of each citizen separately, this is the basis for maintaining an appropriate standard of living in the country. Therefore, it is so important to maintain this relationship in the administrative qualification of offenses.
The principle of distinguishing administrative offenses in the field of ensuring public order and public safety from undifferentiated criminal offenses ensures the correct application of administrative legislation and the imposition of such sanctions that will meet the offense and thus contribute to the establishment of citizens' rights and freedoms.
The principle of the use, development and improvement of the methodological base for qualifying administrative offenses in the field of public order and public safety is substantiated by the importance of stability of such phenomena as public order and public safety, which allows maintaining an appropriate level of functioning of the state, interaction between the state and society and the sustainable development of the latter, which is ensured by including through the implementation of the correct qualification of offenses at the field. Given the fact that the theory of the administrative-legal qualifica-
tion of offenses in the field of public order and public safety is not formulated and there are many unresolved questions about this topic, there is a need to approve a set of methods and theoretical provisions on this topic. This will become a powerful tool to ensure both public order and public safety.
The principle of taking into account international experience in the implementation of the qualification of offenses in the field of public order and public safety essentially follows from the previous principle. Considering the fact that Ukraine today has embarked on a path of major reforms that cannot but affect administrative activities and which are being implemented based on the international experience of successful countries in Europe and America, the process of qualifying administrative misconduct in the field of public order and public safety must comply with modern international standards, so that the "mechanism for qualifying administrative offenses" works in conjunction with the new reformed legislation.
The definition of the principles of administrative legal qualification, without exaggeration, plays a large role, since they not only form the basis for the development of rules for the search for the relevant norms of administrative law to be applied, but also are embodied in the strict qualification requirements of administrative offenses, deviation from which entails going beyond limits of the legal field. In the practical activities of the police, the observance of these principles will ensure the development of an algorithm for the actions of an official during the administrative-legal qualification, will reduce the number of cases of incorrect qualification of administrative offenses, and thus strengthen the rule oflaw in the state.
References:
1. Конститущя Украши: Law of Ukraine on June 28, 1996. № 254К/96-ВР. Vidomosti Verkhovnoyi Radi of Ukraine on July 23, 1996.- 1996.- № 30. article 141.
2. Кодекс Украши про адмшктративш правопорушення. Vidomosti Verkhovnoyi Radi URSR on December 18, 1984-1984.- № 51. article 1122.
