Police discretion in the context of the digital transformation of public administration

Kostin Sergei Gennad'evich PhD in Law Senior Researcher; Research Center; Academy of Management of the Ministry of Internal Affairs of Russia 125171, Russia, Moscow, Zoya and Alexander Kosmodemyanskikh str., 8, building 1 sergei-k@inbox.ru Other publications by this author

The problem of police discretion is one of the key issues in the modern science of administrative law and public administration practice. The essence and legal nature of discretionary powers and their role in public administration are considered by scientists in various fields of sciences. The problems of discretion in administrative jurisdiction were studied by P.P. Serkov, Yu.P. Solovey ^[1][2], S.A. Starostin ^[3], S.V. Shchepalov ^[4]. The issues of the discretion process in the activities of internal affairs bodies are reflected in the scientific works of Yu.E. Avrutin ^[5], E.S. Azarova ^[6], A.V. Girvits ^[5]. Despite the sufficient volume of scientific publications devoted to problematic issues in the field under study, it is necessary to take into account that the sphere of public administration does not stand still.

The Government of the Russian Federation has approved a strategic direction in the field of digital transformation of public administration (Decree of the Government of the Russian Federation dated March 16, 2024 No. 637) (hereinafter referred to as the strategic direction), the purpose of which was to achieve the "digital maturity" of public administration by the President of the Russian Federation ("List of instructions following the conference on Artificial Intelligence" approved by By the President of the Russian Federation on 31.12.2020 № Pr-2242). One of the main goals of the strategic direction is to ensure free, stable, secure information interaction between government authorities of the Russian Federation and citizens.

Digital transformation implies not only the introduction of new technologies and technological solutions in the field of public relations, but also the transition to new management mechanisms and opportunities for fundamentally new interaction between public authorities and society.

Thus, in the context of the digital transformation of public administration, the introduction of artificial intelligence systems, the development of new forms of communication between the police and society, and the modernization of mechanisms for exercising discretionary powers are of particular importance.

The relevance of the topic is due to the need for a scientific search for the optimal balance between giving police officers a certain degree of freedom in decision-making and ensuring the legality of their actions in modern realities of public administration.

The concept of discretionary powers (from the French discretionnale – depending on personal discretion) was practically not considered in the legal literature of the Soviet period, since it was assumed that law enforcement activities were based on strict observance of laws and did not allow for a double interpretation of legal norms, which in turn minimized the possibility of their subjective application.

In modern interpretation, the term "discretionary powers" is defined as a way of exercising public authority when an authority or official acts using the powers given to him by law at his own discretion. As noted by Y.P. Solovey: "Administrative discretion in police activities is the right granted by law to an official to make an independent choice within the established framework of a solution to a management issue or a legal issue, taking into account an assessment of the factual circumstances of the case" ^[7].

A.P. Korenev defines police discretion as "a motivated choice for making lawful decisions and performing actions by an authorized entity within its competence to perform managerial and other tasks" ^[8].

A meaningful definition, in our opinion, is formulated in the scientific work of Yu.E. Avrutin and A.V. Girvits, according to whom "Police discretion is a limited freedom of choice by its subjects of the content and intensity of the use of state coercion measures in the interests of law enforcement, protection and protection of the rights and legitimate interests of citizens and their associations, in the structure of which direct measures of influence prevail, consisting in the use of physical force, special means and weapons" ^[5].

The above definitions allow us to identify the main features of the discretionary powers of officials endowed with such rights. First of all, the management decision, despite the freedom of choice, is limited by the norms of law, i.e. "everything that is provided for by law is allowed." Secondly, discretion is based on the inner conviction of the official and his competence.

Thus, police discretion can be considered as the opportunity provided by law for a police officer to make a managerial decision within the established legal framework, based on his conviction, based on a comprehensive, complete and objective investigation of all the circumstances of the case.

As an example, we can cite the administrative activities of the police to prevent and suppress offenses in the field of alcohol consumption, which, despite its imperative nature, nevertheless allows the use of alternative methods of influence. Police officers have the right to deliver intoxicated persons in public places to medical institutions or specialized organizations established in accordance with the requirements of Federal Law No. 414-FZ of December 21, 2021 "On General Principles of the Organization of Public Authority in the Subjects of the Russian Federation", as well as to the office premises of the Department of Internal Affairs (para. 14, Part 1, Article 13 of Federal Law No. 3-FZ of February 7, 2011 "On Police"). A police officer must adequately assess the situation and independently determine whether a person needs medical attention or whether it is necessary to stop an administrative offense.

It should be noted that discretionary actions are not unlimited, they are clearly defined by the law and are based on personal experience and professionalism. B.V. Rossinsky emphasizes that "the legal regulation of police discretion should ensure a balance between discretion and strict regulation of the actions of police officers" ^[9].

The legislation intentionally leaves room for the discretion of the law enforcement officer, since it is impossible to provide for all the variety of life situations. As L.A. Mickiewicz correctly noted, "police discretion is considered as an integral element of law enforcement activities, ensuring its flexibility and effectiveness" ^[10].

At the same time, officials with a high degree of freedom of action potentially belong to a management group with high corruption risks. Incompetence and widespread blurring of the boundaries of police discretion can lead to violations of the rule of law and arbitrariness, which in turn significantly reduces public confidence in the police and their support. In this regard, the most important issue is to determine the permissible limits of police discretion.

A.I. Kaplunov identifies the following factors influencing the implementation of police discretion: legal (regulatory framework); organizational (structure of bodies, distribution of powers); professional (level of training of employees); psychological (personal qualities); social (public opinion) ^[11].

In our opinion, A.V. Girvits accurately characterizes the limits of police discretionary powers in his scientific research, highlighting not only formal and legal (the legal status of the police, areas of activity), but also legal and axiological coordinates (the purpose of the police, the principles of its activities), collectively orienting police officials to commit certain actions. ^[12].

As you can see, all researchers agree that any decision made by an official should be limited by the law, regardless of any situation, and the rights and freedoms of citizens should be respected. The subject of "discretion" is obliged to take into account all the circumstances of the situation under consideration and possess appropriate professional and ethical qualities.

Thus, it is possible to identify factors limiting the limits of discretionary powers: legal norms; principles of legality and validity; rights and freedoms of citizens, public interests; professional ethics.

Modern researchers note a number of problems in the implementation of police discretion. Yu.N. Starilov emphasizes the importance of "developing a system of control over the exercise of discretionary powers" ^[13]. I.V. Panova notes "the difficulty of ensuring uniformity of law enforcement practice in the exercise of discretionary powers" ^[14]. S.P. Matveev correctly noted in his scientific work that the phenomenon of discretion "is directly caused by gaps and insufficient level of detail of regulatory regulation" ^[15].

In our opinion, the legislator needs to pay attention to improving the mechanism of police discretion. Professor A.V. Martynov suggests the following areas of improvement: specification of legal norms; development of control mechanisms; professional development of employees; introduction of modern technologies; consideration of public opinion ^[16].

It is obvious that in conditions of rapid change and development of public relations in the state, it is impossible to accurately regulate and specify legitimate management decisions in all life situations. And here, in our opinion, the introduction of new technologies (based on artificial intelligence) into the public administration system will provide significant assistance, which will make it possible to process a large amount of information faster, choose the most optimal solution, and ensure effective control over the decision.

A comprehensive and objective study of the theoretical and legal foundations and limits of police discretion will be facilitated by studying foreign experience, as well as considering the possibility of adapting successful practices in regulating discretionary powers.

For example, in the United States, all U.S. police officers have a "rule" in law enforcement that they assess the degree of threat to public order at their discretion and, depending on their assessment, decide whether to use either physical force or weapons. Under Russian law, the use of physical force, special means, and firearms by police officers is regulated by Federal Law No. 3-FZ "On Police" dated 02/07/2011, deviation from the requirements of which in terms of non-compliance with prohibitions and restrictions may lead to criminal liability.

The American "model" of police discretion, in our opinion, leads to excessive police violence against citizens. According to a Washington Post report, since 2015, an average of 988 people have been killed by police in the United States per year (the report began to form into a national database of such incidents after the controversial shooting of Michael Brown in Ferguson, Missouri, in 2014) ^[17].

A positive example is the control system in the United States, where police discretion is regulated at several levels:

1. Federal level:

constitutional restrictions;

decisions of the U.S. Supreme Court;

federal standards of policing.

2. Staff level:

State legislation;

case law;

regional standards.

3. Municipal level:

local regulations;

rules of police departments;

public control.

As can be seen, the American model is characterized by a significant degree of decentralization and a strong influence of judicial control on the formation of boundaries of police discretion.

Of particular interest is the experience of introducing digital technologies into police activities in countries such as Singapore, the United Arab Emirates and the People's Republic of China, where the concepts of "smart policing" are being successfully implemented. Smart Police is a modern model of law enforcement organization based on the use of advanced digital technologies, big data, artificial intelligence and analytical tools to improve the efficiency of police work.

Singapore's Smart Police model represents a unique technological approach to public safety, which is characterized by:

a high degree of digitalization;

comprehensive use of advanced technologies, including artificial intelligence technologies;

integration of public administration systems. ^[18].

Police discretion in Singapore is marked by strict regulation of powers, a high level of technological control, and minimization of the human factor. In our opinion, Malikov correctly characterizes the Singapore model, noting its "high-tech nature and effective anti-corruption mechanisms" ^[19].

Singapore's Smart Police model demonstrates an unprecedented level of technological integration into the law enforcement system, creating a new paradigm for ensuring public safety. Police discretion is characterized by such positive possibilities for assessing situations as:

multilevel information analysis;

using machine learning;

automated risk assessment;

instant situation analysis.

The above examples will certainly be of interest to Russian law enforcement, especially in terms of introducing innovative processes based on modern digital technologies into law enforcement. At the same time, it is necessary to critically reflect on foreign experience and adapt it in Russia, taking into account Russian specifics and mentality.

The digitalization of public administration requires research scientists and legislators to scientifically search for new approaches to the exercise of discretionary powers. As P.I. Kononov correctly noted, "the digitalization of administrative procedures creates a new reality for the implementation of police discretion" ^[20]. The introduction of modern technologies opens up a higher level of opportunities that influence the decision-making process of police officers.

In our opinion, we will highlight the most significant areas for the introduction and development of public administration technologies, as well as the opportunities they provide for use in law enforcement.

1. Artificial intelligence and decision support systems:

big data analysis for risk assessment;

predictive offense analytics;

automated recommendation systems.

2. Digital platforms and services:

electronic document management;

interagency cooperation;

automation of routine procedures.

3. Video analytics and biometrics technologies:

facial recognition systems;

automatic recording of offenses;

monitoring of public places.

Digitalization of administrative procedures will help to increase the objectivity of decisions made, reduce information processing time, unify law enforcement practices, reduce corruption risks, and increase the transparency of administrative procedures.

At the same time, the use of innovative technologies has its own risks and problems of their application. First of all, the following problematic aspects of the digitalization of policing can be identified, such as:

the risk of excessive algorithmization of decision-making;

personal data protection issues;

the need to preserve the "human factor" in decision-making;

technological limitations and failures;

digital inequality of different divisions.

It should be noted that innovative activities in the internal affairs bodies of the Russian Federation do not fully correspond to the dynamics of the updating world, modern technologies are being introduced with great delay. In addition, it requires the formation of an adequate legal framework governing the scope of information and communication technologies. It is important to provide for in regulatory legal acts:

securing the legal status of digital platforms;

regulation of the use of artificial intelligence;

defining the boundaries of decision automation;

establishing information security requirements;

protection of citizens' rights in the digital environment.

Police discretion in the context of the digital transformation of public administration is acquiring new forms and content. The use of digital technologies in law enforcement opens up broader opportunities in the field of law enforcement. Comprehensive analysis of information arrays, identification of latent criminogenic patterns, modeling of probabilistic scenarios, and intelligent analysis of documents will help minimize errors in decision-making.

Summing up, it should be noted that the introduction of digital technologies into the public administration system will not expand the list of discretionary powers of police officials, but can only act as a decision support tool. Analyzing a large amount of data will allow you to objectively assess any life situation, respond promptly to its changes and suggest the most optimal "legal" way to resolve it. Digitalization of management decisions will ensure transparency of the activities of public administration bodies, will help reduce corruption risks and eliminate the facts of illegal "police discretion".