The Police Control over the Observance by Citizens of the Russian Federation of the Conditions of Storage (Safety) of Firearms at the Place of Residence

Gorshkov Il'ya Sergeevich ORCID: 0000-0002-9370-5549 Postgraduate student, Department of Administrative Law, Vladimir Kikot Moscow University of the Ministry of Internal Affairs of Russia  117997, Russia, Moscow, Akademika Volgina str., 12 inpost@inbox.ru Other publications by this author

In Article 1 of Federal Law No. 150-FZ of 13.12.1996 "On Weapons", firearms are defined through the prism of the principle of their functioning as a type of weapon designed to mechanically defeat a target at a distance by throwing equipment that receives directional movement due to the energy of a powder or other charge. This aspect, which finds normative reflection, quite obviously indicates the special social nature of firearms due to the presence of specific properties. Researchers whose research interests include the study of issues of legal regulation of arms trafficking note that the socially useful properties of any weapon, under certain circumstances, can harm the protected interests of citizens, pose a threat to the security of society (for example, A.A. Dolgopolov in the abstract of the dissertation "Theoretical and organizational foundations of administrative and legal regimes of arms trafficking and explosives in the Russian Federation" p.3). In this regard, weapons (and, in particular, firearms) are traditionally a source of increased danger, therefore they pose a real threat to the individual, society and the state ^{[1, p. 104]}, and therefore should be under the constant control of the state in the person of its competent authorities ^{[2, p. 122]}.

Professor A.V. Melekhin, in his lectures set forth in his writings (Administrative Law of the Russian Federation: A Course of lectures. M., From the IFPA. 2009. p.132), like many administrative scientists, consider state control as a legal means of ensuring legality. Legality is the basis of law as a universal principle, a system of social and legal requirements of lawful behavior ^{[3, p. 42]}. Such an understanding should be recognized as typological, grounded in views on the institution of control in the general theory of law, seen in the works of, for example, Professor S.S. Alekseev (Theory of State and Law / Edited by S.S. Alekseev. M.: Legal lit., 1985. p.449). It is this instrumental understanding of state control that has been further developed and served as the basis for many scientific schools. In particular, in the 1970s and 1980s, the concept of legal means was formed and spread in the domestic legal doctrine ^{[4, pp. 17-22]}, which is now called the instrumental theory of law. The basis of this direction was laid precisely by S.S. Alekseev's teaching on the understanding of legal means ^{[5, p. 12-19; 6, p. 100]}.

Without a doubt, state control is the key to the effectiveness of public administration in any social sphere, providing the subject of state control with prompt and timely information about the behavior of the controlled object and about the general state of legality of the controlled environment. As it is known, the purpose of the norms of administrative law presupposes their voluntary observance by the majority of subjects of administrative law. Coercion is carried out only in case of non-fulfillment or violation of the requirement of a legal administrative-legal norm ^{[7, p. 6]}. To a large extent, it is the information obtained from the results of state control that makes it possible to fully use the mechanisms of state coercion to guarantee the achievement of social goals when identifying inconsistencies in the behavior of the object of control, its refusal to voluntarily follow the prescriptions of the administrative and legal norm. At the same time, the importance of state control will increase for those spheres of public life in which the social demand for maintaining a high level of law and order is to a certain extent high, reflecting the degree of protection of basic institutions that guarantee the protection of the individual's basic, inalienable, constitutionally guaranteed rights and freedoms (primarily the right to life, liberty and personal integrity) on the part of the state. All this is fully characteristic of public administration in the sphere of circulation of civilian firearms.   

 The model of state regulation of arms turnover in our country has, in comparison with other developed countries, a relatively short history and is associated with the adoption in 1993 of the first Law of the Russian Federation dated 05/20/1993 No. 4992-1 "On weapons". Prior to the adoption of this regulatory legal act, there was no centralized state regulation of arms trafficking and was carried out by multi-part administrative regulatory legal acts of the USSR and the Union republics. The main aspects of the state policy in the field of arms trafficking today are reflected in the current Federal Law No. 150-FZ of 13.12.1996 "On Weapons" (hereinafter – the Federal Law "On Weapons"). However, if the general concept of the subject of regulation from the provisions of this regulatory legal act is conditionally stable, undergoing a natural evolution over time, changing in detail, then the issues of public administration in the sphere of arms trafficking, the policy of public administration, are undergoing more serious changes, forming a model specific to our country. In particular, its peculiarity can be called the fact that, contrary to widespread world practice, when the subjects of state administration implementing state control in the sphere of circulation of civilian weapons are the police ^{[8, pp. 1-68]}, in our country the functions of state control are vested with a specially authorized federal executive authority.

Since 2016, according to the Decree of the President of the Russian Federation dated 30.09.2016 No. 510 "On the Federal Service of the National Guard Troops of the Russian Federation", the federal executive body responsible for the development and implementation of state policy and regulatory regulation in the field of arms trafficking is the Federal Service of the National Guard Troops of the Russian Federation (Rosgvardiya). The powers granted to Rosgvardiya in the sphere of arms trafficking, by analyzing the provisions of section 2 of this Decree, can be reduced to the powers to implement regulatory regulation (sub-paragraphs 2 and 3), the powers of federal state control (supervision) (paragraph 20) and organizational powers (sub-paragraphs 1, 4-6, 10 and 19).

The structure of state control in the sphere of arms trafficking is traditionally formed by the object and the objects included in its scope, subjects of state control ^{[9, p. 32]}, as well as the forms and methods of state control used. The object of state control, in our case, is the citizens of the Russian Federation, and the general subject of state control is their actions (or activities) in the field of arms trafficking, within which the mandatory requirements established by the state by means of the publication of a legal norm must be observed. Such requirements are compiled into a system of regulatory models of generally binding behavior contained in federal laws and other subordinate regulatory legal acts. The latter, by clarifying the requirements of federal laws, form a system of rules that today, in the field of arms turnover, are fixed by the Decree of the Government of the Russian Federation No. 814 dated 21.07.1998 "On measures to regulate the turnover of civil and service weapons and ammunition to it on the territory of the Russian Federation" (together with "Rules for the turnover of civil and service weapons and ammunition to it on the territory of the Russian Federation" (hereinafter – the rules of arms turnover).

Diversity of public relations in the sphere of arms turnover, including, according to Article 1 of the Federal Law "On Weapons", issues of its production, trade, sale, transfer, acquisition, collecting, exhibiting, accounting, storage, carrying transportation, transportation, use, seizure, destruction of import into the territory of the Russian Federation and its export from the territory of the Russian Federation, assumes a variety of subjects of state control. Within the framework of the discretion of state control in the sphere of arms trafficking, specific areas are highlighted, concentrating the tools used on them to the utmost. One of the subjects of state control is the fulfillment by citizens of the Russian Federation of mandatory requirements to ensure the conditions of storage (safety) of firearms at the place of residence, established by Section 11 of the Decree of the Government of the Russian Federation No. 814 of 21.07.1998 "On measures to regulate the turnover of civil and service weapons and ammunition to it on the territory of the Russian Federation" (together with "The rules of turnover of civil and service weapons and ammunition to it on the territory of the Russian Federation."

The subjects of state control over the provision by citizens of the Russian Federation of the conditions of storage (safety) of firearms at the place of residence are the administrative authorities that have the appropriate competence and the set of powers necessary for its implementation. Based on the analysis of the provisions of the Federal Law "On Weapons", we single out as organizational and tactical forms of state control in the sphere of arms trafficking: verification; monitoring (surveillance) and accounting. As applied methods, a significant variety of administrative methods are used: inspection; examination; survey; interviewing (interview); examination of documents; making inquiries (obtaining information and documents); statistical analysis; registration, etc. Thus, the direct form of state control over the provision by citizens of the Russian Federation of the conditions of storage (safety) of firearms becomes obvious. weapons at the place of residence, which is a check based on the methods of inspection and inspection of places of storage of weapons.

According to the current legislation, in addition to the Rosgvardiya, which is a direct subject of state control in the field of arms trafficking, which carries out such activities on behalf of the Russian Federation independently, the police are charged with the duties of participating in the implementation of state control over the provision by citizens of the Russian Federation of the conditions of storage (safety) of firearms at the place of residence. The powers of the police, as a subject of state control over the provision of conditions for the storage (safety) of firearms by citizens of the Russian Federation at the place of residence, are established by the provisions of Federal Law No. 3-FZ "On Police" dated 07.02.2011 (hereinafter – the Federal Law "On Police"). Thus, according to paragraph 21 of part 1 of Article 12 of the Federal Law "On Police", the police participates in the order determined jointly with the Rosgvardiya in measures to control the conditions for the storage (safety) of civilian, service, combat and award weapons owned or temporarily used by citizens. At the same time, by the provisions of paragraph 10.3 of the Instruction on the performance of official duties by precinct police officers at the serviced administrative area, approved by the Order of the Ministry of Internal Affairs of Russia dated 29.03.2019 No. 205, these powers in the police structure are directly assigned to precinct police officers.

A direct indication in the provisions of the Federal Law "On the Police" on the possibility of police participation in control measures to ensure the conditions of storage (safety) of weapons by citizens of the Russian Federation at the place of residence and a reference to the procedure established in agreement with the Rosgvardiya, allows us to conclude about the normative-provided auxiliary nature of the activity under consideration by the police, designed to compensate for the shortcomings of the organizational and staff structure Regardie ^{[10, pp. 51-57]}. In other words, the police duty in question is performed not as a direct administrative function of a public administration entity, but under a condition. This, in particular, is evident from the analysis of the procedure for involving the police in control measures. This procedure is currently regulated by the provisions of the joint Order of the Ministry of Internal Affairs of the Russian Federation No. 652 and the Federal Service of the National Guard of the Russian Federation No. 360 dated 18.08.2017 "On certain issues of Police Participation in measures to control the conditions of storage (Safety) of civilian, service, Combat and Award weapons, Ammunition, Ammunition for weapons Owned or in the temporary use of citizens" (hereinafter - the Order).

The mechanism of fulfilling the duty of the police to exercise state control over ensuring the conditions for the storage (safety) of weapons by citizens of the Russian Federation at the place of residence and attracting district police officers for these purposes is strictly linked to the presence of a reason. The reason for the implementation of control actions by district police officers, implemented in the form of inspections of weapons storage sites, is the fact that a written reasoned request from the relevant unit of the Rosgvardiya, signed by an authorized person, is received by the territorial body of internal affairs, which is directly provided for in paragraph 2 of the Order. The specified written reasoned request, according to paragraph 3 of the Procedure, is sent to the internal affairs body as necessary, but only if certain conditions exist. Such conditions include, firstly, the fact of a personal appeal of a citizen of the Russian Federation to the Rosgvardiya on the following issues: extension of the validity period or renewal of permits (licenses) for the storage, storage and carrying of weapons and cartridges; acquisition (temporary use) of weapons and cartridges; violation of the conditions of storage (safety) of weapons and cartridges owned or temporarily used by citizens. Secondly, if there is a fact of residence of a controlled object in a rural settlement, a remote or inaccessible area where there is no subdivision of the territorial body of the Rosgvardiya (that is, if it is objectively impossible to carry out control actions by the Rosgvardiya). There are no other reasons or grounds established by regulatory legal acts for the implementation by district police officers of state control over the provision of conditions for the storage (safety) of weapons by citizens of the Russian Federation at the place of residence, implemented in the form of inspections of weapons storage sites, is not provided. From what has been said, an obvious problem arises, which is related to the proper implementation of the preventive function of the district police commissioner as the main content of his activities in the serviced administrative area.

We have noted above that state control is a universal tool for ensuring the rule of law in the system of public administration, which permeates with its organizing influence any activity within the framework of the implementation of any function of the state. The law enforcement activity of state authorities, which is based on the protection of public order and ensuring public safety, is no exception. The forms and methods of state control in the system of law enforcement activities can be structurally adapted and form their own law enforcement reality, which, being clothed in the appropriate administrative and procedural shell, is integrated into the structure of law enforcement activities at the instrumental level, forming a special subsystem - a system for the prevention of crimes and administrative offenses, which has its own object, subject, goals and objectives, a specific, specially authorized circle of subjects, referred to as subjects of prevention. State control here acquires a specific instrumental legal nature and, determined by the specifics of the prevention goal, becomes preventive control.

According to the provisions of Article 2 of Federal Law No. 182-FZ of 23.06.2016 "On the fundamentals of the system of crime prevention in the Russian Federation", crime prevention is a set of social, legal, organizational, informational and other measures aimed at identifying and eliminating the causes and conditions that contribute to the commission of offenses, as well as providing educational impact on persons in order to prevent the commission of offenses or antisocial actions. Based on the above definition, the instrumental role of state control as a universal preventive measure of a legal nature becomes tangible. Thus, a typical form of state control aimed at identifying and eliminating the causes and conditions that contribute to the commission of offenses is verification, and inspection and examination are used as its characteristic methods. The connection between prevention and state control is so tight that many researchers attribute prevention to the organizational and tactical form of state control ^{[11, p. 206]}, which in our opinion is incorrect, since with the commonality of forms and methods of state control, prevention is only the specifics of the goals and objectives of state control, its special legal regime.

The provisions of paragraph 7 of section 3 of the Instruction on the activities of Internal Affairs Bodies for the Prevention of Crimes, approved by Order of the Ministry of Internal Affairs of Russia dated 17.01.2006 No. 19, the Instruction on the performance by police precinct commissioners of official duties in the serviced administrative area, approved by Order of the Ministry of Internal Affairs of Russia dated 29.03.2019 No. 205, the functions of the implementation of crime prevention in the serviced administrative area are directly assigned to police precinct commissioners, providing appropriate procedural forms for this activity. It is the precinct police commissioners who largely implement the preventive competence of the Ministry of Internal Affairs of Russia, provided for by the provisions of subparagraph 12 of paragraph 11 of Section 2 of Decree of the President of the Russian Federation No. 699 of December 21, 2016 "On Approval of the Regulations on the Ministry of Internal Affairs of the Russian Federation and the Model Regulations on the Territorial Body of the Ministry of Internal Affairs of the Russian Federation for the subject of the Russian Federation" and paragraph 4 of Part 1 of Article 12 of the Federal Law "On Police". An important circumstance is that Rosgvardiya is not a subject of prevention at all and preventive functions are performed by this federal executive authority (including in the sphere of arms trafficking) according to Decree of the President of the Russian Federation No. 510 dated 30.09.2016 "On the Federal Service of the National Guard Troops of the Russian Federation" and Federal Law No. 226-FZ dated 03.07.2016 "On the troops of the National Guard of the Russian Federation" are not fixed. This concept is also the basis for a special regulatory legal act regulating the control and supervisory activities of the Rosgvardiya, which is the administrative regulations of the Federal Service of the National Guard Troops of the Russian Federation for the implementation of federal state control (supervision) over compliance with the legislation of the Russian Federation in the field of arms trafficking, approved by the Order of the Rosgvardiya dated 14.01.2020 No. 8 (hereinafter referred to as the Regulations). The specified regulatory legal act does not provide for preventive checks of compliance by citizens of the Russian Federation with the conditions of storage (safety) of weapons at the place of residence at all, since appropriate grounds are necessary to start control actions related either to the citizen's appeal to the Rosgvardiya unit on the issue of obtaining or extending permits, or to identify circumstances preventing the possession of weapons or the commission of an offense by a citizen in the sphere of arms trafficking (item – 67.2 of the Regulations). In the latter case, as can be seen, state control is not related to the prevention of an offense, but is justified only by state reflection on an event that has already occurred and the onset of socially dangerous consequences following it.

Taking into account the fact that the Rosgvardiya is not charged with the duties of preventing offenses in the field of arms trafficking, the police (represented by district police commissioners) are the only entity implementing measures to prevent offenses in the field of arms trafficking at the level of the so-called "grassroots", that is, directly interacting with the persons being prevented. In particular, the provisions of paragraph 37.3 of the Instructions on the performance of official duties by precinct police officers at the serviced administrative area, approved by the Order of the Ministry of Internal Affairs of Russia dated 29.03.2019 No. 205 oblige precinct police officers to keep lists of citizens who own weapons living in the administrative area, directly referring the category of persons in question to the objects of preventive impact, which traditionally are not not only deviants (for example, persons who have committed or are inclined to commit offenses), but also sources of increased public risk.

What has been said in this paper allows us to formulate a conclusion that to date, preventive inspections of compliance by citizens of the Russian Federation with the conditions of storage (safety) of firearms at the place of residence by district police officers are not provided for by regulatory legal acts on an initiative basis. As a result, the internal balance of the preventive work of the police to prevent offenses in the field of arms trafficking is violated when the set social goals are not supported by an effective mechanism of legal means to achieve them. In particular, almost the only effective way to identify the causes and conditions that contribute to the commission of offenses, to prevent the onset of socially dangerous consequences in a timely manner, are checks of citizens' compliance with mandatory legal requirements, which is especially significant in sensitive, from the point of view of their impact on public safety, areas of public administration belonging to high-risk categories (for example, activities related to the exploitation of sources of increased danger, which include weapons). In this regard, the problem posed by us in our work requires a new look at the concept of the organization of public administration in the field of arms trafficking, the organization of state control and further scientific research, taking into account the realities of the social environment and the fact that the organization and implementation of crime prevention, its proper provision in the modern system of law enforcement is becoming increasingly important.