Guiding Principles of Police Administration and Control Techniques

Posted on May 14, 2024 in Law & Jurisprudence

1. Guiding Principles of Police Administration

Principle of Equal Treatment

  • General constitutional principle (Article 14 EC)
  • Maximum operation with the use of:
    • Indeterminate legal concepts and
    • General provisions
  • Differential treatment is not prohibited if it is not arbitrary: different situations allow different treatment

Principle of Proportionality

  • General principle for all administrative activity
  • Maximum operation on law and order and public security: forced to choose the least restrictive means to individual freedom (pro libertatis).

Principle of Reservation Bill

  • Lawful regulation for any limitation of rights and freedoms of individuals
  • Further legal regulation specific: identify situations with powers of intervention also singled out
  • Regulation single realization of statutory criteria of completeness, measurability, and predictability
  • Exception: important facto set of regulations, especially with regard to economic regulation

Principle of Non-Compensability Antijuricidad

  • Limitations up load on the particular public interest requirements
  • Contrapuesto the principle of compensation in the field of eminent domain and property rights for property (including support charges for administrative control action)

2. Police Regulations (Including Self-Regulation)

  • Regulation: establishing the rule of law according to principles of:
    • Legality and
    • Reserva law
  • Instruments of regulation (provided under the law), regulations, plans, and self-regulation

Regulation

  • Reserva law concerning the organization (Article 53.1 EC)
  • Regulation only complementary aspects in practice important area of decision rules (e.g., issued by independent authorities)

Plans

  • Directivos, or strategic guidance (soft law)
  • Vinculantes (hard law)
    • General decisions on analysis of problems and situations
    • Regulate public and private actions
    • Provided for some sectoral laws
    • Participation of the general public and interested parties
    • Regulatory value and actionable by citizens concerned

Self-Regulation

  • Usual conventional production and trade relations: spontaneous formation of standards and codes of conduct from private sources rather than legal-binding, but are of general practice
  • Voluntary character: no binding force (not responsible for the non-compliant)
  • Exceptionally binding (conversion): when there is a relationship of complementarity between voluntary and mandatory standards in a particular sector, giving certain legal effects of hard law:
    • Presumption of conformity, and
    • Referral to private standards and private control systems
  • Causes of self-regulation:
    • Technical shortage of power that regulates
    • Objective difficulty to define and enforce the public interest in certain sectors
    • Apply the principle of proportionality, provided there is positive
  • Common trait: they all feel that they straighten their self-fulfilling activity and increase their competitiveness
  • Regulated self-regulation:
    • Legal and public management of the context of self-regulation: principles, channels, limits, and controls to be applied to the self
  • Technical self-regulation:
    • Use of public legal norms whose fulfillment will depend on the target
    • Awarded certification survey activity development according to standards listed
    • Thus they become quasi-mandatory (ISO standards)

3. Control Techniques: Monitoring, Inspection, Assessment, and Audits

Security

  • Material activity (not legal)
  • Observation and control of private activities
  • Preventive and repressive disturbances or breaches of illegality
  • Function attributed to FFCCS and other specialized bodies, and also private security

Inspection

  • Formalized activity
  • Verification, preventive or repressive, of enforcement duties or obligations, prohibitions, and legal restrictions
  • Implies the exercise of authority (government officials) to ensure impartiality
  • Procedures inspector regulated in every industry standard (usually regulatory in nature prior legal authorization)
  • Faculties Inspection:
    • Require information
    • Request documents …
  • Constitutional principles of inspection activity:
    • Contradiction and defense
    • Proportionality
    • Objectivity
    • Impartiality
    • Other constitutional principles (including privacy, talk about STC)
  • Result inspection records have evidential value if they are written by authority

Assessments and Audits

  • Internal: the Administration evaluates its activity (ANECA)
  • External: evaluation of the activity is performed on the activity of others, either by themselves or by the government (environmental impact)

Suspected of Self

  • Collaboration of private entities (including their own control subjects)
  • Mandatory or voluntary character
  • Material industrial industrial safety and quality controlled by private agencies or entities approved in advance by acreditadotas, according to evaluation procedures established by regulation and certification reports
  • Environmental matter: evaluation mechanisms to those who surrender voluntarily companies (for reasons of public interest) and other mandatory (failure incurred administrative offense).

4. Awards Scheme, Prohibitions, and Mandates

  • After distinction between:
    • Obligation: legal necessity of doing or not doing or giving for one person, imposed by law (regulation alone is developing and implementing administrative act the same) (collaborating with fire extinction)
    • Carga: it imposes a benefit or a legal status in favor of whom satisfies
    • Deber: legal need to do or not do something for a community, not as law but as authority (PIT)
      • Administration has the authority to ensure fulfillment of duty by intimatorias measures of demand or sancionadazas
  • Main field of action (though not exclusive) is public
  • “Orders create duties when the law only provides for general powers
  • Types of orders:
    • Singulares (vehicle stop) or general (dissolution event)
    • Oppositional (mandates) or negative (prohibitions)
    • Preventivas (before the behavior to avoid), directives (imposing conduct for public order), or repressive (elimination of the situation created)
  • Legal status:
    • Exigen legal provision that determines the scope of duty, their circumstances, and their limits (except emergencies)
    • Proporcionada
    • Motivada
    • Ejecutiva (violations in case of default)

5. Concept Lessons and Authorizations

Definition

  • Distintas theories or concepts:
    • Authorization declaratory: it presupposes a right of anyone calling: Administration declares its support for public interest by allowing
    • Authorization constitutive: it grants permission to perform initially prohibited conduct
  • Principio common to both concepts: freedom of action of authorization to declare any individual does, and oppose the grant. Provides benefits which were not in the legal field of the individual
  • Conclusión on authorization (declaratory):
    • Legal basis of: individual freedom
    • Basis economic order: free enterprise market economy
    • For state reservation services as CE: there is a concession (constitutive)
    • Increased surveillance intensity for granting activities, but can be raised for activities authorized by relevance with the public interest
  • Autorización used by law broadly: any action or activity or exercise which provision has not previously been assumed by a public administration, in which case it falls within the scope of public services.

Classes of Approval

  • Regladas and discretionary:
    • Regulated: Administration concur only checks whether conditions required by law to exercise a right or develop the activity (required to grant approval if it meets requirements)
    • Discretionary: Administration appreciates the opportunity to work in terms of public interest, subject to certain conditions, certain deadlines … (not required to grant permission)
  • De single tract or operation and successive treatment or operation:
    • Permission single tract that is exhausted by its exercise, not extended in time
    • Tract creates a future legal relationship between the Administration and administered by an indefinite period, while long will the effects created by it (here it should be revoked)
  • Personales (conditions of person), real (as requested object or activity), and mixed (both)

6. Status of Authorizations

  • (No rules governing system)
  • An administrative act unilaterally (not constitute agreement or arrangement), so are executives and enforceable
  • Transferability:
    • Personal oAutorizaciones are personal
    • Oreal if they are transmissible
    • Omixtas not transmitted due to possible breach of the principle of equality (if permits are limited)
  • Granted without prejudice to third parties, and which administration is not competent to rule on legal matters related to the private
  • Termination of authorization for the following reasons:
    • Realización of activity in single tract
    • Osin not seek renewal or granted in the period under
    • ORenuncia the owner, although it requires conformity of Directors when there is a duty to exercise the activity (public information period for claims affected)
    • OAnulación authorization for errors in the granting, revocation, harmfulness, …
    • ORevocación, either for reasons of expediency, by change of circumstances
    • OIncumplimiento of permit conditions