The importance of the principles of proceedings in cases of administrative offenses and the form of their consolidation

Nobel' Artem PhD in Law Associate Professor of the Department of State and Legal Disciplines of the Volga-Vyatka Institute (branch) of the Moscow State Law University named after O. E. Kutafin (MGUA) 610002, Russia, Kirovskaya oblast', g. Kirov, ul. Orlovskaya, 20b toynobel@gmail.com

In the dictionary of S.I. Ozhegov, the principle is understood as the basic, initial position of any theory, doctrine, science, etc.^[20].

In legal science, principles are one of the most important categories defining the conceptual foundations and essence of law, characterizing the level of legal consciousness necessary for the correct understanding and application of the norms of current law.

According to S.S. Erashov, the primary task of procedural theory is to abstract from objective reality the key ideas about what exists and what is due in an ideal criminal process – principles. The efficiency of procedural law and the combat effectiveness of law enforcement activities largely depend on the thoroughness of the development of principles ^[11].

In science, there is no unified approach to the question of how to consolidate the principles, the legal environment of their existence. There are two main points of view on this issue.

According to the first, the principles must necessarily be enshrined in positive legislation ^{[2, 7, 14, 17, 26, 32]}, otherwise, they are not mandatory.

Other researchers, rejecting the formal legal approach, believe that the principles can be considered and not fixed in the law of the initial provisions and guiding ideas ^{[4, 8, 15, 16, 18, 22, 27]}.

V.I. Zazhitsky, objecting to the statements about the possibility of the existence of legal principles not enshrined in law, writes that in this case two completely different concepts are mixed: scientific ideas formulated by scientists and proposed by them for the role of legal principles, and the actual legal principles already enshrined in the norms of the current law. In legal science, various scientific ideas related to a particular type of activity regulated by the norms of law can be expressed and justified, but to orient practitioners to their application would mean to introduce chaos and disorganization into a particular activity ^[14].

N.A. Chechina rightly argues that the legal principle as a guiding idea differs from scientific and philosophical principles in that it always and certainly finds its concrete expression in a norm or norms of law, an idea not fixed by a norm of law cannot become a legal principle ^[31].

The recognition by the principles of provisions that do not have legislative consolidation, in our opinion, will inevitably lead to uncertainty of the system of legal regulation, contradicts the interests of legality and detracts from the authority of the legal norm.

Principles not enshrined in legislation act as doctrinal principles or principles of a non-legal nature, on the basis of which the existing principles of law arose, and in the future, perhaps, their improvement and the formation of new ones. Legislation is becoming outdated due to the dynamics of political, socio-economic and social development. For its timely reconstruction, scientifically sound recommendations on improving legislation are needed, the basis of which should be progressive ideas based on theoretical research in the relevant fields.

Thus, it is necessary to distinguish between the legal principles of proceedings in cases of administrative offenses enshrined in the legislation on administrative offenses and the corresponding doctrinal principles (principles of a non-legal nature) existing in the science of administrative law.

Another controversial issue is in what form the principles should be consolidated in the current legislation.

According to one position, the principles should be formulated in a separate legal norm, usually bearing the name of a principle, or contained in the structural part of a regulatory legal act devoted to the principles ^{[2, 25, 33]}.

 According to another point of view, the principles may be indirectly fixed, which provides for the derivation of a principle from the interpretation of a legal norm, or a set of legal norms ^{[4, 10, 15, 30]}.

The principles of proceedings in cases of administrative offenses cannot exist outside the formal legal framework, however, such fixation, in our opinion, is possible through both textual and semantic ways of fixing.

In the first case, the principles are fixed in a separate legal norm, for example, Article 1.4 of the Code of Administrative Offences of the Russian Federation of 30.12.2001 (hereinafter - the Administrative Code of the Russian Federation) (the principle of equality), Article 1.5 of the Administrative Code of the Russian Federation (presumption of innocence), Article 1.6 of the Administrative Code of the Russian Federation (the principle of legality).

At the same time, we must not forget that not all the principles of proceedings in cases of administrative offenses are directly enshrined in the provisions of the law, which would allow us to draw an unambiguous conclusion about their existence. Consequently, a semantic way of fixing legal principles is also possible, which is clearly demonstrated by such provisions of the Administrative Code of the Russian Federation as Article 26.11 of the Administrative Code of the Russian Federation (the principle of freedom of evaluation of evidence), Article 29.7 of the Administrative Code of the Russian Federation (the principle of direct investigation of evidence), etc.

Despite the various ways to consolidate the principles of proceedings in cases of administrative offenses, of course, the greatest effectiveness of their perception and application for the proper organization of production will be achieved only when the principles are consolidated in the form of norms contained in a special chapter of the Administrative Code of the Russian Federation.

Linking legal principles with the need for mandatory direct or indirect consolidation in the current legislation, it is necessary to focus on the relationship of the concept under consideration with the category of "rule of law".

From the analysis of works devoted to this issue, two main approaches can be distinguished: positivist ^{[1, 5, 6, 9, 17, 19, 21, 23, 28, 29]} and integrative ^{[12, 13, 18]}.

According to the first, legal principles are types of norms of law, the so-called norms are principles that have received legislative consolidation.

Supporters of the opposite point of view substantiate the position that legal principles act as independent means of legal regulation of public relations, that is, forms of law.

In our opinion, the principles of proceedings in cases of administrative offenses are a kind of legal norms, since they have such similar basic features as:

- are an official expression of the will of the state and are protected by the force of its coercion;

- represent an imperious mandatory requirement, designed for an unlimited number of applications, in relation to an individually undefined circle of persons;

- formally defined in the legislation on administrative offenses, which, in addition to the Administrative Code of the Russian Federation, includes the Constitution of the Russian Federation, generally recognized principles and norms of international law (for example, the European Convention for the Protection of Human Rights and Fundamental Freedoms of 04.11.1950), through both textual and semantic methods of consolidation.

However, it is impossible not to note the special position of legal principles as normative entities.

If the norms of law have a concretized character, then the principles of law are normative generalizations of the highest level, a condensed, concentrated expression of the content of law, a kind of clots of legal matter ^[3]. Legal principles, as a rule, do not contain specific rules of conduct, requirements for possible and proper, permissible and prohibited behavior of participants in public relations.

The specificity of legal principles is expressed in their primacy in relation to "simple" norms of law. The content of legal norms are the rules of behavior of subjects of legal relations, while with the help of legal principles, an ideal image of the desired legal reality is formed. Legal principles, in contrast to the norms of law, have a significantly higher level of generalization of normative prescriptions and an abstract nature.

The absence of a pronounced internal structure in the form of hypotheses, dispositions and sanctions in legal principles only emphasizes their special position and dominant role in the system of legal norms. Legal principles act as a kind of guidelines, fundamental requirements that indicate the correct paradigm of legal regulation from the point of view of the development of the state and society, the behavior of subjects, the application and improvement of legal norms, affect the subjects of law enforcement, adjusting their legal awareness in accordance with the meaning enshrined in them.

In this regard, E.V. Skurko writes that, in a certain sense, the principles of law are norms reflected and largely formed the legal consciousness of a lawyer, as a rule, even at the stage of his professional education, defining specific methods, rules, a kind of "framework" when conducting a legal assessment and "anticipating" its practical results. in the assessment of facts and events that form (or, on the contrary, cannot be laid) the basis for the regulation of specific legal relations ^[24].

At the same time, in some cases, for example, when gaps in regulatory regulation are found, legal principles can be used directly to resolve public relations in the field of proceedings on administrative offenses. This statement is confirmed by the practice of the Constitutional Court of the Russian Federation, justifying the decisions taken by the action of legal principles.

Thus, the legal principles of proceedings in cases of administrative offenses have priority regulatory importance in relation to the norms of law that must comply with them.