Types and application of special rules of administrative - Государство и право реферат
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Types and application of special rules of administrative
Legislation regulating the application of administrative law enforcement termination. Types of special rules of administrative. Improving the practice of special means of administrative cease-duty law enforcement. Special means of administrative.
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Types and application of administrative rules
1. Legislation regulating the application of administrative law enforcement termination
2. Types and application of special rules of administrative
3. Improving the practice of special means of administrative cease-duty law enforcement
4. Features of special means of administrative
Under the rule of law improve regulation of various social relations is of particular relevance. There is a growing need to improve the legal impact on behavior, increasing their sense of justice.
In a democratic society, the main task of the government, particularly the executive - the rights and freedoms of citizens. For example, Article 3 of the Constitution of Ukraine states that: "A person's life and health, honor and dignity, inviolability and security are recognized in Ukraine as the highest social value. The rights and freedoms and their guarantees determine the content and direction of the state. The state is responsible for its activity. Adoption and safety rights and freedoms is the main duty of the state "[1].
At the same time achieve a high level of discipline and the rule of law is impossible without the law-abiding behavior, improve the quality and efficiency of law enforcement. Failure to perform the duties set forth in the law provides an adequate response to the state, including the application of administrative coercion. The Application of state coercion for any wrongful acts always attracted the attention of society, social groups, as it affects the interests of most people, their associations.
One of the most serious intervention by law enforcement agencies in the livelihoods of citizens is the application to them of the special administrative suspension. In connection with this question of the application of special means of administrative suspension is subject to administrative regulation and implementation by the state.
Attention is drawn to the fact that the crime situation remains difficult. Continue to increase the intensity of criminal aggression, violent assaults on human life and health.
More than a thousand, were victims of murder, more than a thousand received serious injuries. Some of them with assault on their lives awkwardly used special devices or in the required time did not use them at all. And so the question of efficiency of the use of special police officers, improving the mechanism of administrative and legal regulation of this group of legal gaining relevance.
In an environment that has a very acute issue of increasing the level of training of personnel in the police special tactical, combat training, especially in the application of physical restraint, firearms, special means of administrative suspension, increased technical support of law enforcement agencies to combat kinds of offenses.
The current regulatory framework in Ukraine - the Law of Ukraine "On Police" from 20.12.90 g, USSR Council of Ministers Resolution № 49 "On approval of the application of special means for the protection of public order in the USSR" from 27.02.91 g, regulations that regulatory features of these tools have some disadvantages of special administrative termination allows decisively to stop the violation of law, but the mechanism of administrative regulation, for example, are not defined separately means the termination of criminal and administrative suspension with regard to their capabilities and the legislative, not defined by law what is meant by the terms "exclusive", "other antisocial acts," it is not clear how and by whom is determined by the intensity of the use of special means of special operations are not defined cases when special operations prohibits the use of any special tools, no guidelines typical development, aids for managers units in the course of solving operational problems.
Problems administrative and legal regulation in the sphere of public order highlighted in a number of books, theses, manuals, articles:
Afanasyev, VG, Astemirov ZO, Bahraha DM Bondurka OM
Veremeenko II, Holosnichenka IP, Goncharuk ST Danshina IM, dear MM, Yeropkin MI Efimova ME, Zhalinskoho OE, Zahorodnikova M . J., Zotov LV, Ihitova VI, Koval LV, Kazimirchuk VP, Kerimov DO Klyushnichenka OP Kuragin GG, Kournikova VV ., Karpets II, Ratinova AR, Lunev AE
Loyfmana IJ, Manohina VM Orzyh IF, Panovskiy OI, Popova, LL, but a comprehensive study of the improvement of the administrative and legal regulation of the use of administrative termination was not held.
Investigation of the above group relations necessary for further improvement of legislation regulating law enforcement officers, improve its application, improving the efficiency of the use of special tools.
The subject of study within this essay is to develop training for the application of special means of administrative suspension.
The object of study acting techniques, preparation methods that ensure the safety of employees under any circumstances in the application of special means of administrative suspension.
The study is to reveal the essence of the tasks before them. Among them, the disclosure law, forms and rules for the use of special means of administrative suspension.
1. Legislation regulating the application of administrative law enforcement termination
If you make a legal analysis of the regulation, it is possible to conclude that there is a unilateral procedure regulating relations in the sphere of application of the administrative termination - a law enforcement bodies with specialized tools and responsible citizens for actions that infringe on the established order management, implementation of citizens' rights and freedoms referred to in public relations, and existing rules are declarative.
We know that law enforcement relations consist of legal content (rights and obligations of participants relationships) and the content of the material (their actual behavior - actions or omissions).
Applying special administrative termination of police regulated century. century. 12-151 Law of Ukraine "On militia" 20.12.1990r. These provisions of law are mostly material (regulate behavior, activities of the police), but they are part and procedural as are organizational and procedural in nature, the mode of application of substantive law. [10]
Separately, the procedural rules of the group relations are practically absent, as no defined forms and methods of use of each type of special agents.
No special tools individually administrative termination as the degree of public danger of the commission of two even similar, offense is never quite the same.
The question arises: how to act and what should be the order during the application of special means of administrative suspension.
For the application of administrative enforcement of paramount importance, such laws as the laws of Ukraine "On Police", "On Road Traffic", "On the organizational and legal framework to combat organized crime," "On Combating Corruption", "On the administrative supervision of the persons released from prison, "" On the legal state of emergency ", the Code of Administrative Offences Code Air and others.
Summary of legal rules governing the activities of the police on the use of administrative enforcement is contained in the departmental regulations of the Ministry of Internal Affairs of Ukraine. Problems departmental law-making has long been the subject of attention of representatives of the various branches of legal science. Most of these acts get critical reviews. Representatives extreme negative attitudes to departmental regulations do not consider the sources of law, calling it humiliating "bureaucratic customary law", which is not provided or authorized by law. [10] However, the rules of acts constituting the majority rules that directly regulate the activity of the police. Law "On Police" and other legislative acts mostly often define the powers of law enforcement agencies only in general terms, apply these rules without specifying almost impossible. Therein lies the importance of departmental regulations.
Practice shows that the rules apply special means must be clearly defined and even some instructions and the relevant law, as it is the law should determine the type of product and the special features of its application, depending on the gravity of the wrongful act.
For normal use of special means of administrative suspension, it contains five articles in the third section of the Law of Ukraine "On Police" (Articles 12-151). To prove awkward presentation of this legal standard to make it legal analysis.
The hypothesis is difficult as the norm connects with multiple conditions. They are found in almost all of the above articles. Thus, Article 12 of the Law of Ukraine "On Police" determined that all special tools used in administrative termination cases and in the manner prescribed above mentioned Law;
- The use of physical force, special means and firearms must be preceded by a warning of the intention to use them if circumstances allow;
- Without warning these measures can be used if there is a direct threat to the life or health of citizens or police officers. [2]
That is, if the use of force are general in nature and does not clearly define the application of each type of special equipment, weapons in certain circumstances (arrest of the offender, a person suspected of a crime, stopping group of disruption, riots). On arms of subjects of public relations, who have the right to use force, a large arsenal of specialized tools and should clearly define the conditions for the application of the specific engine separately.
Article 14 of the Law of Ukraine "On Police" indicates the nature of alternative hypotheses (a kind of complicated): "Kind of a special tool, start time and intensity of its use are determined by the situation that has developed, the nature of the offense and the offender," that is, it is assumed that since the legal norms in force enough of one of these in her factual circumstances.
The above hypothesis does not indicate the specific conditions of use of a special tool (or species) - the active defense of special operations, small explosives sniffing dogs), procedures and limits the use of force in terms of the possible use of special equipment arsenal under the administrative termination of employees of certain departments law enforcement. Due to the fact it is an abstract that does not contribute to the strengthening of the rule of law.
When it comes to the use of water cannon, armored vehicles, tear substances dogs hypothesis should not be abstract and kazustychnoyu - that link the implementation of legal norms, occurrence, change or cease certain relationships with certain strictly defined individual cases (incident) - Termination of Administrative delinquency, crime, riots. Consider the following element of the legal rules governing the use of special means of administrative termination (disposition) is the main part of the legal provisions, contains the relevant rules of lawful conduct carried out in the presence of under the hypothesis conditions.
Thus, a law enforcement officer himself must navigate an emergency situation, prior to the use of special tools.
The last stage in the mechanism of regulation - a direct application of special means of administrative suspension, which is optional and is a conservative act, which is intended to ensure that all subjects of public relations to certain rules of conduct, used as a last resort, when freely realize the legitimate rights and interests are not possible. If the rule of law on the use of force has failed formulating the probability of violation of law increases (erroneous assessment of the situation of public legal entity which has the right to use special tools administrative termination).
Compared with the high level of injuries in the service (which is the inability to effectively counter resistance offenders) few cases (for a year) the application and use of firearms, despite the complicated crime situation, aggressiveness detained a large number of persons killed on duty police bodies. This shows the inability of personnel to protect not only citizens, and even themselves. This weak physical training, and lack the necessary skills for the application of physical effects, special tools, application and use of firearms and perfect for special features that are available in law enforcement.
Police officers are not difficult to make a mistake in an emergency during the arrest of the offender. Court, for example, take some time to examine all the circumstances of the case and decide, as a police officer is forced to make in an instant.
The basis of such relations must be put to compromise, balance based on respect for individual rights and the rules of conduct of the law. The Law of Ukraine "On the use of force by officials in the performance of their duties" should make rules that set out the rights of citizens, police officers in situations associated with the use of police force.
For example, a police officer has the right not to apply measures of physical exposure, special tools, firearms in the following cases:
- During negotiations with the offender cease illegal behavior;
- Using psychological impact on the offender demonstration of the use of force;
- When the number of police patrols twice predominant number of detained persons.
Thus, the use of force by police - this must be the last argument not only on paper but in reality. Since the right to use force affects the legal education and police officers as subjects of public relations.
As an ordinary citizen of justice is still at a low level, with the purpose of legal education as human rights defenders and offenders to respect the law of each offender at the time of detention should know their rights.
For example: when detention of a citizen who is suspected of committing an offense has the right: to know their rights regarding procedure and rules of detention, bringing, detention, shall be entitled to legal aid lawyer to refuse to answer questions in his absence, is entitled to one phone the call.
Furthermore rights during termination wrongful act as a police officer and detained must have certain responsibilities.
For example: when detention of persons suspected of having committed a wrongful act police officer must:
- To respect its rights and freedoms;
- Adhere to the principle of minimum use of force, rules of application of physical effects, special tools, firearms;
- Exclude the possibility postrazhdannya others during detention;
- Give the victim as a result of the detention, the offender first aid
- To report dimensional accordingly direct boss, to make the necessary procedural documents.
During the arrest the police citizen suspected committed a wrongful act, shall:
- Fulfill legal requirements of a police officer;
- Inform about the presence (absence) of items prohibited to be worn, as well as things that are relevant to a person committing a wrongful act;
- Allow the police officer to conduct a personal inspection, report the presence or absence of witnesses.
- Refrain from disobedience, resistance to lawful demands of a police officer.
2. Types and application of special rules of administrative termination
Law of Ukraine "On Militia" does not define: at circumstance applies one or another kind of special vehicle, when a law enforcement officer makes its own decision on the use of physical force, weapons, special equipment, and when this decision is made by senior attire, officer, director special operations for which categories of persons (mental condition, age, physical benefits ...). therefore this uncertainty, as the practice often leads to violations of the law, as a police officer during a duty to decide what is written in the law, a special type of vehicle, time of onset, the intensity of its use (perhaps mistakenly) as well as social danger offender.
The election of a certain kind of special vehicle administrative termination should depend on the degree of public danger of wrongful deeds. The higher the level, the more severe impact on the offender.
Special features of the administrative termination
(Used in committing administrative violations that do not pose a great danger to society)
-Substance tear irritant action in aerosol containers
Rubber baton used when exhausted action preventive effect on the offender and during termination wrongful act that does not constitute a great danger to society (under administrative law of Ukraine) in the following cases:
- When committing the evil of disobedience lawful order or requirement of a police officer, a member of the voluntary formation, soldier while performing their duties for the protection of public order;
- To apprehend offenders in the exercise of administrative proceedings and criminal proceedings and enforcement measures in accordance with court decisions;
- To protect citizens and protect themselves from unlawful acts, if the life or health of others policeman threatened.
Using rubber batons must be preceded by notice of intent to use it except in cases of sudden or armed attacks on citizens, military personnel, members of voluntary groups to protect public order, an attack using vehicles, military equipment, aircraft.
Rubber baton used on limbs with a force sufficient to stop the wrongful act.
Do not use rubber baton on the head, neck, collarbone, abdomen, genitals and other vital organs, and women with obvious signs of pregnancy, the elderly, the disabled with severe signs of disability, as adolescents, unless they commit a group attack resistance threatening the life or health of others, law enforcement or armed attack or armed resistance.
Violation of the rules applying rubber batons or exceeding the minimum sufficient force during its use entails responsibility established by the current legislation of Ukraine [10, c.34].
Application tear substances irritant action in aerosol containers.
Used when exhausted action preventive effect on the offender and during suppression of illegal acts that do not constitute a major public threat and provided administrative legislation of Ukraine, in the following cases:
- When committing the evil of disobedience lawful order or requirement of a police officer, a member of the voluntary formation, soldier while performing their duties for the protection of public order;
- To apprehend offenders in the exercise of administrative proceedings and criminal proceedings and enforcement measures in accordance with court decisions.
- To protect citizens and protect themselves from unlawful acts, if the life or health of others, a police officer threatened.
Using tear substances must be preceded by notice of intent to use them except in cases of sudden or armed attack, when along with the use of vehicles, combat vehicles, aircraft.
Tear substances irritant action in aerosol containers are used within 90cm for 1-2 seconds at the chest.
Do not use tear matter to women with obvious signs of pregnancy, the elderly, the disabled with severe signs of disability, as adolescents, unless they commit a group attack resistance, threatening the health of others, police or armed attack or armed resistance .
Do not use tear matter where they may get hurt by others.
Illegal use of tear substances irritant action entails responsibility established by the current legislation of Ukraine [10, c.56].
Special means of passive impact on the offender. Applies when depleted preventive measures impact on the offender and during termination wrongful act in the following cases:
- When committing the evil of disobedience lawful order or requirement of a police officer, a member of the voluntary formation, soldier while performing their duties for the protection of public order;
- To apprehend offenders in the exercise of administrative proceedings and criminal proceedings and enforcement measures in accordance with court decisions.
- To protect citizens and protect themselves from unlawful acts, if the life or health of others, a police officer threatened.
Do not use handcuffs to women with obvious signs of pregnancy, the elderly, the disabled with obvious signs of disability, as adolescents, unless they commit a group attack resistance, threatening the health of others, police or armed attack or armed resistance.
Do not over-tighten the handcuffs on his hands detained persons. Fixing locks checked every 2 hours, and in the autumn-winter period every 30 minutes. Handcuffs are used in the "hands behind".
While escorting aircraft as well as life and health of detained persons in danger, handcuffs used in the "hands ahead". Inappropriate use of handcuffs entail responsibility established by the current legislation of Ukraine. [17]
Applicable only organic gas weapon, when the use of other special equipment not produced the desired result on the offender, during the suppression of illegal acts, not yayayut a great social danger, provided administrative legislation of Ukraine in the following cases:
- To apprehend offenders in the exercise of administrative and judicial enforcement action pursuant to judicial decisions;
- To protect citizens and protect themselves from unlawful acts, if the life or health of others, a police officer in danger;
- For stopping group violations of public order.
Using gas weapons must be preceded by notice of intent to use it except in cases of sudden or armed attack, an attack using vehicles, military equipment, aircraft.
Gas weapon used from a distance of 01.03 meters in the chest.
Used cartridges with tear substance irritant action.
Do not use organic gas guns to women with obvious signs of pregnancy, the elderly, the disabled with severe signs of disability, as adolescents, unless they commit a group attack resistance, threatening the health of others, police or armed attack or armed resistance.
Do aiming shooting in the head section of the offender, reapply gas weapons within the affected area during the period of gas. Do not use organic gas gun at a distance closer than 1 meter, as well as areas in industries related to production of explosives and flammable substances in children's and medical institutions, in areas and on land reserved for diplomatic, consular and other representatives of foreign states, except for cases when the heads of offices receive requests to use these places appropriate means and measures to offenders.
Inappropriate use of gas weapons attendance entail responsibility established by the current legislation of Ukraine. [17]
Applicable only Scheduled air guns when exhausted action preventive effect on the offender and during suppression of illegal acts that do not represent a great danger to society provided administrative legislation of Ukraine in the following cases:
- To apprehend offenders in the exercise of administrative and procedural coercive measures according to court decisions during the commission detained disobedience;
- To protect citizens and protect themselves from unlawful acts, if the life or health of others at risk;
- For stopping group violations of public order.
Using airguns should be preceded by a warning of the intention to use it except as sudden or armed attack, an attack using vehicles, military equipment, aircraft.
Airguns applied from a distance of 5-7 meters on the limbs.
Do not use air guns to women with obvious signs of pregnancy, the elderly, the disabled with severe signs of disability, as minors, unless they commit a group attack resistance, threatening the health of others, police or armed attack or armed resistance.
Do not use Scheduled air guns at a distance closer than 5 meters, as well as the vital organs.
Inappropriate use of attendance airguns entail responsibility established by the current legislation of Ukraine.
Applicable only organic stun device when the use of other special equipment not produced the desired result, the offender and during the suppression of illegal acts that do not constitute a great danger to society provided administrative legislation of Ukraine in the following cases:
- To apprehend offenders in the exercise of administrative proceedings and criminal proceedings and enforcement measures in accordance with court decisions;
- To protect citizens and protect themselves from unlawful acts, if the life or health of others, a police officer in danger;
- For stopping group violations of public order. [6]
Using a stun device must be preceded by notice of intent to use it except in cases of sudden or armed attack, an attack using vehicles, military equipment, aircraft. Stun device used for 2-3 seconds to open part of the limb.
Do not use stun device in women with obvious signs of pregnancy, the elderly, the disabled with obvious signs of disability, as adolescents, unless they commit a group attack resistance, threatening the health of others, police or armed attack or armed resistance .
Do not use stun device in the area of the head, neck and other vital organs, exceed the allowable exposure time electric discharge on the offender, Electro use with external damage and defective protective or start button, use the stun guns in areas where flammable or explosive substances.
After the defeat of the offender if it is necessary first aid.
Inappropriate use of stun device entails responsibility established by the current legislation of Ukraine.
In law enforcement and imperfect reflection of zabespechennist technique, special means (electric, gas guns, rubber batons (more convenient to use), poor physical fitness, lack the necessary skills for the application of physical effects, special tools, application and use of firearms [16].
The defining feature of the administrative suspension in law enforcement is directly legally imperious influence. Means administrative termination used in law enforcement when necessary to forcibly stop-wing offense.
The current regulatory framework in Ukraine - the Law of Ukraine "On Police" from 20.12.90 g, USSR Council of Ministers Resolution № 49 "On approval of the application of special means for the protection of public order in the USSR" from 27.02.91 g, regulations that regulatory features of the application of these tools have some disadvantages of special administrative termination allows decisively to stop the violation of law, but the mechanism of administrative regulation, for example, are not defined separately means the termination of criminal and administrative suspension with regard to their capabilities and the legislative, not defined by law level implied by the term "exceptional circumstances", "other antisocial acts," it is not clear how and by whom determined the intensity of the use of special means of special operations are not defined cases when special operations prohibits the use of any special tools, no guidelines, typical development, aids for commanders of divisions patrol officers, commanders of special police units for training personnel to use special means for the protection of public order, and in the course of solving operational problems.
In connection with the above-mentioned disadvantages of training law enforcement personnel on the use of special funds held at a low level of organizational and methodical, practical training, training conducted very rarely and without the use of the full range of special tools that are in service with the police. [8].
Based on the foregoing, we conclude that the termination of administrative remedies to stop illegal actions, they are used in order to prevent new offenses and the onset of harmful effects.
3. Improving the practice of special means of administrative cease-duty law enforcement
Based on the analysis of application of administrative termination winner produced a number of proposals to improve the practice of their application in order to avoid violations of law by the police, state's compliance with human rights by limiting the maximum force and strict regulation of activities of law enforcement agencies in these relations.
Start with physical training to law enforcement officials.
Law of Ukraine "On militia" 20.12.90r. allowed the use of techniques of unarmed combat for stopping crime, poverty against lawful demand of a law enforcement agency.
Complex techniques of unarmed combat is in general aggressive nature and aimed at causing injuries. Certainly, there are safe ways, but the tactics of physical force should be based not on the battlefield, and the protection of citizens, self-defense, blocking illegal actions of offenders. So the main task of an officer of law - to protect the lives, health, rights and freedoms of citizens, and not to punish offenders, as is customary in film and video "heroes" are popular with today's youth militias.
The following special tool - a rubber baton. Its shortcomings we have already spoken. Another modification of this specific product must provide protection bone hands, which also will serve to better secure the capture handles with rubber batons. You can provide concealment rubber truncheons as an open citizens psychologically accustomed, the demonstration of this special vehicle before use does not cause the offender some embarrassment.
In addition, the open wearing rubber batons is a demonstration of force, which is not always appropriate. In some cases, such as when maintaining public order during mass events, this could provoke an attack. When aggressive crowd - a demonstration of special equipment may be perceived by citizens as a challenge. Yes and seize the baton of freely worn on the hips and apply it against the owner as easily.
Gas guns, stun devices are already in service in law enforcement, but they are not yet widely used in practice. It is also quit
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