Improving the effectiveness of prosecutorial supervision over the implementation of legislation by control (supervision) bodies in the context of the ongoing administrative reform

Ditsevich Yaroslava Borisovna PhD in Law Leading Researcher of the Department of Theory and History of State and Law, Irkutsk Law Insitute (branch) of the University of Prosecutor's Office of the Russian Federation 664035, Russia, Irkutsk region, Irkutsk, Shevtsova str., 1 yaroslavadi@mail.ru Other publications by this author

Yarovoi Aleksandr Valer'evich PhD in Law Associate Professor, Dean of the Faculty of Professional Retraining and Advanced Training Irkutsk Law Institute (branch) University of the Prosecutor's Office of the Russian Federation 664035, Russia, Irkutsk region, Irkutsk, Shevtsova str., 1 jam98@yandex.ru

Under the conditions of the illegal sanctions policy of unfriendly countries, the importance of the human rights component of the prosecutor's supervision over the execution of laws by control (supervision) bodies is increasing. In 2022, the Government of the Russian Federation has established a moratorium on conducting control (supervisory) measures in relation to the majority of small and medium-sized businesses ^[1]. The organizational and administrative documents of the Prosecutor General's Office of the Russian Federation establish a requirement for the suppression by prosecutors of the implementation of verification measures under the guise of raids, monitoring, as well as in the framework of illegal administrative proceedings. At the same time, citizens and organizations are not exempt from compliance with the mandatory requirements established for their actions (results of activity) or for the production facilities they own. Violation of mandatory requirements may lead to harm to legally protected values. It should also be noted that small and medium-sized businesses do not exhaust the circle of persons in respect of whom departmental control (supervision) is possible. The study of the rules of control and supervisory activities and the relationship with administrative proceedings is an intermediate result of this article. The main purpose of the work is an attempt to develop proposals to improve the effectiveness of prosecutorial supervision over the implementation of legislation on state control (supervision) through the perception of the ongoing administrative reform to modernize control and supervisory activities, mixing accents in its implementation in order to form law-abiding behavior of controlled persons.  

Control and supervisory activities are aimed at compliance with mandatory requirements in all potentially harmful areas, and improving the effectiveness of such activities should be attributed to the main goals of the ongoing administrative reform ^[2]. At the same time, the effectiveness depends on the skills and abilities of authorized persons to use all the tools provided by the legislation: preventive work (which is preferred); control (supervisory) measures; control (supervisory) measures without interaction; permanent state control; bringing offenders to administrative responsibility.

Taking into account the significant number of violations by business entities of mandatory requirements identified during control and supervisory activities, the majority of state control (supervision) bodies widely apply the rights granted to them to initiate cases of administrative offenses related to the violations identified. In this regard, the problem of distinguishing the procedures necessary to bring a person to administrative responsibility and the procedures of state control (supervision) or municipal control remains urgent.

It is necessary to distinguish between cases when bringing to administrative responsibility is possible only within the framework of control and supervisory measures, and when proceedings on cases of administrative offenses are carried out in compliance with the rules (restrictions) established by the norms of the Federal Law of the Russian Federation dated 31.07.2020 No. 248-FZ "On State Control (Supervision) and Municipal Control in the Russian Federation (hereinafter ? Law 248-FZ) ^[3].

Officials of state control (supervision) bodies simultaneously belong to authorized persons for the initiation and execution of cases of administrative offenses and to persons exercising control and supervisory functions. The similarity of the objectives of the activity can be traced from the provisions of Law 248-FZ and the Code of Administrative Offences of the Russian Federation (hereinafter - the Administrative Code of the Russian Federation). The Law defines State control (supervision) as the activity of control (supervisory) bodies aimed at preventing, detecting and suppressing violations of mandatory requirements, taking measures to eliminate the consequences of violations and restoring the legal situation that existed before such violations occurred. The objectives of the legislation on administrative offenses are the protection of the most significant public values from administrative offenses, as well as the prevention of administrative offenses. Both normative acts are in systemic interaction and are attributed to federal laws in connection with which, by virtue of the principle of "Lex posterior degraat legi priori" ("The subsequent law cancels the previous one"), the norms of Law No. 248-FZ must be observed as a matter of priority in case of intersection of the spheres of application. At the same time, bringing to administrative responsibility should take place in compliance with the requirements of the Administrative Code of the Russian Federation ^[4].

 One should not take extreme positions that any bringing to administrative responsibility by officials of control (supervision) bodies should be carried out within the framework of control and supervisory measures in cooperation with controlled persons. Let's make an attempt to substantiate this thesis. Law No. 248-FZ does not exclude the need for controlled persons to comply with mandatory requirements, but regulates the grounds and procedure for interaction of control bodies with individuals and legal entities, protects against arbitrary interference in their activities ^[5].

Law No. 248-FZ identifies control (supervisory) measures in cooperation with controlled persons and without such. Interaction is understood as meetings, telephone and other negotiations between the inspector and the controlled person, the request for documents, other documents, the presence of the inspector at the place of action, except for the presence of the inspector at publicly accessible production facilities.

Each control (supervisory) event consists of a legally prescribed "set" of control (supervisory) actions. The number of which includes: inspection, inspection, questioning, obtaining written explanations, requesting documents, sampling (samples), instrumental examination, testing, examination, experiment.

Control (supervisory) actions are united by the fact that they are aimed at the evaluation, research activities of the inspector in order to clarify compliance with mandatory requirements by controlled persons, which is significantly different from, for example, inspection, explanations of a person in the framework of administrative proceedings, which are aimed at fixing the detected violations and establishing all elements of administrative misconduct. One of the reasons for initiating an administrative offense case may be the direct discovery by officials authorized to draw up protocols on administrative offenses of sufficient data indicating the presence of an administrative offense event ^[6].

Is it possible to initiate an administrative case in case of direct discovery of circumstances indicating the commission of an administrative offense by officials of control (supervision) bodies? It seems that a negative answer should be given if, before initiating administrative proceedings, it is necessary to perform at least one control (supervisory) action requiring interaction with a person (telephone and other negotiations, request for documents, the presence of an inspector on the territory, in the premises used). In this case, the initiation of administrative proceedings takes place within the framework of control (supervisory) measures specified in part 2 of Article 56 of Law No. 248-FZ. The event is held in cooperation with the controlled person in compliance with the established rules, in particular, in coordination with the prosecutor's office.

It is also unacceptable to initiate an administrative case within the framework of preventive measures, for example, such as a preventive visit. The Law stipulates that if, during a preventive visit, it is established that the objects of control pose an immediate threat of harm to legally protected values or harm has been caused, the inspector must immediately send information about this to an authorized official to make a decision on carrying out control (supervisory) measures (Article 52 of Law No. 248-FZ). And only within the framework of a control (supervisory) measure, and not a preventive one, it is possible to take measures to bring administrative responsibility (Article 90 of Law No. 248-FZ).

Next, we will pay attention to such a control (supervisory) event without interaction with a controlled person as an on-site examination. It is understood as an event held for the purpose of visual assessment of compliance by a controlled person with mandatory requirements (Article 75 of Law No. 248-FZ). The on-site examination is carried out within one working day, without informing the controlled person about its conduct. A visual assessment of compliance with mandatory requirements may consist of an inspection of publicly accessible (open to an unlimited number of persons) production facilities.

In the event that an inspector during an on-site examination finds circumstances indicating the existence of an administrative offense event, he may initiate an administrative offense case (Part 6 of Article 75, Article 90 of Law No. 248-FZ). At the same time, it is prohibited by law to issue an order to eliminate the detected violations and to take other measures to prevent harm (damage) to protected values or to stop its infliction.

The state control (supervision) does not include the production and execution of decisions on cases of administrative offenses (Article 1. of Law No. 248-FZ), therefore, if a decision is made to initiate a case with the direct detection of a violation of the legislation, further proceedings are regulated by the provisions of the Administrative Code of the Russian Federation ^[7]. It should be noted that field surveys are carried out on the basis of assignments of authorized officials of the control (supervisory) body both on the basis of the work plan and outside it.

Summing up, it can be stated that the law does not exempt citizens and legal entities from compliance with mandatory requirements. The Law regulates the procedure for the implementation of control (supervisory) measures in cooperation with the controlled person, in order to protect against arbitrary (unjustified) interference of the controller in the economic activities of the person. Bringing to administrative responsibility outside the scope of Law No. 248-FZ is possible in the case of direct detection by an official of the state control (supervision) body of sufficient data indicating the existence of an administrative offense event, if during detection, as well as prosecution, control (supervisory) measures are not carried out in cooperation with the controlled person. Initiation of administrative proceedings and bringing to administrative responsibility is lawful during the execution of the task of conducting an on-site survey in public places, if, based on administrative practice, there is enough evidence obtained without conducting control (supervisory) measures in cooperation to bring to administrative responsibility ^[8],[9].

When exercising prosecutorial supervision over the execution of laws by state control (supervision) bodies, as well as over the legality of the administrative practices of relevant officials, in our opinion, it is necessary to take into account the following:

1.      Departmental control (supervision) bodies are obliged to ensure compliance with mandatory requirements by all citizens and legal entities.

2.      The control (supervision) bodies should effectively use all the tools of control and supervisory activities provided for by the legislation, including the possibility of bringing to administrative responsibility.

3.      In the activities of control (supervision) bodies, priority should be given to preventive measures.

4.      Bringing to administrative responsibility is possible with strict compliance not only with the requirements of the Administrative Code of the Russian Federation, but also with the rules of Law 248-FZ.

5.      The initiation of an administrative case is possible as a result of the identification by an authorized official of circumstances indicating the commission of an administrative offense. At the same time, administrative proceedings are carried out in accordance with the norms of the Administrative Code of the Russian Federation, if the collection of evidence does not require control (supervisory) measures in cooperation with the person involved. The authorized official must use the possibilities of obtaining information through interdepartmental information interaction.

6.      It is advisable for the control (supervision) body to evaluate the administrative offense compositions provided for by the Administrative Code of the Russian Federation, for which it acts as an authorized body (authorized officials), for the possibility of collecting evidence of an administrative offense with at least one control and supervisory action ("red" compositions) or as part of an on-site survey without control and supervisory measures in interaction ("green" compositions).

For a long period of time, the topic of finding ways to ensure the stability of the work of environmental management bodies, which is a guarantee of the effectiveness of the activities of control and supervisory bodies, creates the basis for scientific research and discussions. At the same time, the processes of personnel and organizational reform of federal and regional authorities inevitably have an impact on the quality of the implementation of state environmental policy, up to a complete stop of the initiated socio-economic and other projects and other negative consequences.It seems that the implementation of measures aimed at strengthening the personal responsibility of heads of authorities at all levels for making managerial decisions that have caused damage to legally protected interests can significantly increase the effectiveness of the work of authorities exercising their powers in the field of environmental management.

 At the same time, the set of organizational and legal measures necessary to solve this problem should include measures to ensure the inevitability of responsibility for the commission of offenses.

  These, as it seems, must necessarily include measures aimed at making an appropriate court decision and the actual recovery of the amounts of damage caused by illegal actions of persons (including prosecutorial supervision of the implementation by the authorities of the functions of recovery by way of recourse of the amounts spent during the execution of court decisions). To no lesser extent, it is necessary to intensify the subsequent work of law enforcement and other authorities to recover, by way of recourse, the amounts of damage caused during the exercise of official powers to legally protected interests.Currently, mainly based on the results of prosecutor's inspections against the heads of regional authorities authorized in the field of environmental protection and nature management, criminal cases are increasingly initiated on the facts of official and (or) corruption crimes.

  At the same time, the consideration of these cases in court often ends with convictions. At the same time, the actual recovery of the damage caused by their illegal actions from these persons is not always brought to its logical end. At the same time, properly organized work in this area, even in several constituent entities of the Russian Federation, the results of which will receive effective coverage in the media, can have a preventive effect within all Russian regions.In the modern period, despite the intensification of activities to improve legislation regulating legal relations in the field of control (supervisory) activities, there remains a large number of controversial issues that require additional research.

  These include the problems of evaluating the effectiveness of the activities of control (supervisory) bodies, ways to develop the institute of independent assessment of compliance with mandatory requirements, ensuring the effectiveness of preventive measures, as well as many other topical issues.