Proceedings in cases of administrative offenses should be considered, firstly, as a set of administrative procedural norms, and secondly, as the activities of authorized bodies and officials based on these norms and aimed at the implementation of the following tasks:
o comprehensive, complete, objective and timely clarification of the circumstances of each case of an administrative offense;
o resolution of the case in accordance with the law; ensuring the execution of the decision; identification of the causes and conditions that contributed to the commission of administrative offenses.
The legislation on administrative offenses consists of the Code of Administrative Offenses of the Russian Federation and the laws of the subjects adopted in accordance with it Russian Federation on administrative offences.
Proceedings in a case on an administrative offense consist of four stages: initiation of a case on an administrative offense and, if necessary, conducting an administrative investigation; consideration of the case; revision of resolutions and decisions on cases of administrative offenses; execution of decisions on cases of administrative offenses. The stage of revision of resolutions and decisions on cases of administrative offenses is optional (optional), since it is carried out only in case of appeal.
1. Initiation of a case on an administrative offense (Chapter 28 of the Code of Administrative Offenses of the Russian Federation), its stages are not as clearly distinguished as in the subsequent stages of production. At this stage, the number of stages depends on the form of production: simplified, general, special. These forms differ in the completeness of the procedural actions. For each of them, the stage of initiating an administrative case is inherent; drawing up a protocol on an administrative offense is absent in a simplified form of proceedings; administrative investigation is characteristic of a special form of production.
2. Consideration of an administrative case by a competent authority and the adoption of an appropriate decision (Chapter 29 of the Code of Administrative Offenses of the Russian Federation) consists of next steps:
Preparation for the consideration of the case;
Analysis of the circumstances of the case and its legal assessment;
Adoption and execution of a decision (decree) on the case;
Communicating the decision.
3. Revision of resolutions (decisions) in cases of administrative offenses (Chapter 30 of the Code of Administrative Offenses of the Russian Federation), stages of this stage:
Appeal, protest of the decision;
Preparation for consideration of the complaint (protest of the prosecutor) against the decision;
Consideration of a complaint (protest);
Decision on the complaint (protest) and its announcement;
Review of the decision made on the complaint (protest) against the decision on the case.
4. The execution of the decision (Chapter 31 of the Code of Administrative Offenses of the Russian Federation) consists of the following stages:
Appeal of the decision for execution;
The actual execution of the punishment established by the resolution (decision);
Completion of proceedings for the execution of the decision (decision).
Proceedings on cases of administrative offenses cannot be started, and the initiated must be terminated in the presence of at least one of the following circumstances:
Absence of an event of an administrative offense;
Absence of an administrative offense, including failure by an individual at the time of the commission of illegal actions (inaction) of the age provided for by the Code of Administrative Offenses for bringing to administrative responsibility, or insanity individual who committed unlawful actions (inaction);
Action of a person in a state of emergency;
Issuing an act of amnesty, if such an act eliminates the application of an administrative penalty;
Cancellation of the law establishing administrative responsibility;
Expiration of the statute of limitations for bringing to administrative responsibility;
Presence on the same fact of committing unlawful actions (inaction) by a person against whom proceedings are being conducted on an administrative offense, a decision to impose an administrative penalty or a decision to terminate the proceedings on an administrative offense, or a decision to initiate a criminal case;
The death of an individual in respect of whom proceedings are being conducted in a case of an administrative offense.
Proceedings on cases of administrative offenses are one of the types of administrative-jurisdictional proceedings. The objectives of this production are a comprehensive, complete, objective and timely clarification of the circumstances of each case, resolving it in accordance with the law, ensuring the execution of the decision, as well as identifying the causes and conditions that contributed to the commission of administrative offenses. The order of proceedings in cases of administrative offenses is determined by the Code of Administrative Offenses.
In accordance with Chapter 25 of the Code of Administrative Offenses, the participants in the proceedings on cases of administrative offenses are: the person in respect of whom proceedings are being conducted on the case of an administrative offense; victim; legal representatives of an individual; legal representatives legal entity; defender; representative; witness; understood; specialist; expert; interpreter; prosecutor.
So, in accordance with Art. 25.1 of the Code of Administrative Offenses, a person in respect of whom proceedings are being conducted in a case of an administrative offense has the right to get acquainted with all the materials of the case, give explanations, present evidence, file petitions and challenges, use the legal assistance of a defense counsel, as well as other procedural rights. At the same time, according to the Code of Administrative Offenses, the case of an administrative offense is considered with the participation of the person in respect of whom proceedings are being conducted in the case of an administrative offense. In the absence of the said person, the case may be considered only if there is evidence that the person was duly notified of the place and time of the consideration of the case, and if the person did not file a motion to postpone the hearing of the case, or if such a motion was left unsatisfied. A judge, body, official considering a case on an administrative offense has the right to recognize as obligatory the presence during the consideration of the case of the person in respect of whom the proceedings are being conducted. A minor who is being prosecuted in a case of an administrative offense may be removed for the duration of the consideration of the circumstances of the case, the discussion of which may have a negative impact on the specified person.
The victim is a natural or legal person who has suffered physical, property or moral injury. The victim has the right to get acquainted with all the materials of the case of an administrative offense, give explanations, present evidence, file motions and challenges, use the legal assistance of a representative, appeal against the decision in this case, enjoy other procedural rights in accordance with the Code of Administrative Offenses. The case of an administrative offense is considered with the participation of the victim. In his absence, the case may be considered only in cases where there is data on the proper notification of the victim about the place and time of the consideration of the case and if the victim has not received a request to postpone the consideration of the case, or if such a request has been left unsatisfied.
Legal representatives of an individual protect the rights and legitimate interests of an individual who is being prosecuted in a case of an administrative offense, or victims who are minors or, due to their physical or mental condition, are deprived of the opportunity to independently exercise their rights. The legal representatives of an individual are his parents, adoptive parents, guardians or trustees. Family ties or relevant powers of persons who are legal representatives of a natural person are certified by appropriate documents.
When considering a case on an administrative offense committed by a person under the age of eighteen years, a judge, body, official considering the case on an administrative offense has the right to recognize the presence of a legal representative of the said person as obligatory.
Legal representatives of a legal entity shall protect the rights and legitimate interests of a legal entity in relation to which proceedings are being conducted in a case of an administrative offense, or a legal entity that is a victim. The legal representatives of a legal entity are its head, as well as another person recognized in accordance with the law or the constituent documents of the body of the legal entity. The powers of the legal representative of a legal entity are confirmed by documents certifying his official position.
The case of an administrative offense committed by a legal entity is considered with the participation of its legal representative or defense counsel. In the absence of these persons, the case may be considered only in cases where there is evidence of a proper notification of the persons, of the place and time of the consideration of the case, and if they have not received a petition to postpone the consideration of the case, or if such a petition is left without satisfaction.
In order to provide legal assistance to a person in respect of whom proceedings are being conducted on an administrative offense case, a defense counsel may participate in the proceedings on an administrative offense case, and a representative may participate in the proceedings on an administrative offense case, and to provide legal assistance to the victim. A lawyer or other person is allowed to participate in the proceedings on an administrative offense as a defender or representative. The powers of an attorney are certified by a warrant issued by you. legal advice. The powers of another person providing legal assistance shall be certified by a power of attorney. The defender and the representative are allowed to participate in the proceedings on the case of an administrative offense from the moment the protocol on the administrative offense is drawn up. In the case of administrative detention of an individual in connection with an administrative offense, the defense counsel is allowed to participate in the proceedings on an administrative offense from the moment of administrative detention.
A person who may be aware of the circumstances of the case to be established may be called as a witness in a case concerning an administrative offense. The witness is obliged to appear when summoned by the judge, body, official in charge of the case of an administrative offense, and give truthful testimony: tell everything he knows about the case, answer the questions posed and certify with his signature in the relevant protocol the correctness of his statements. When interviewing a minor witness who has not reached the age of fourteen, the presence of a teacher or psychologist is mandatory. If necessary, the interrogation is conducted in the presence of the legal representative of the minor witness. The witness is warned about administrative responsibility for giving knowingly false testimony.
The witness has the following rights:
not testify against yourself, your spouse and close relatives (parents, children, adoptive parents, adopted children, siblings, grandfathers, grandmothers, grandchildren);
testify on mother tongue or in the language he speaks;
use the free help of an interpreter;
make comments on the correctness of entering his testimony in the protocol.
A witness, that is, any adult who is not interested in the outcome of the case, may be attracted by the official in charge of the case of an administrative offense, in the cases provided for by the Code of Administrative Offenses. The number of witnesses must be at least two.
The presence of attesting witnesses is mandatory when applying measures to ensure proceedings in cases of administrative offenses - personal search, search of things that are with an individual; inspection of premises, territories and things and documents located therein belonging to a legal entity or an individual entrepreneur; inspection of the vehicle; seizure of things and documents; arrest of goods, vehicles and other things; detention of a vehicle; arrest of goods, vehicles and other things.
Any adult who is not interested in the outcome of the case and has the knowledge necessary to assist in the discovery, consolidation and seizure of evidence, as well as in the use of technical means, may be involved as a specialist to participate in the proceedings on an administrative offense. The specialist is warned about administrative responsibility for giving deliberately false explanations. The specialist must:
participate in carrying out actions that require special knowledge, in order to detect, consolidate and withdraw evidence, give explanations about the actions he performs;
certify with his signature the fact of the commission of these actions, their content and results.
The specialist has the right:
get acquainted with the materials of the case on an administrative offense relating to the subject of actions committed with his participation;
with the permission of the judge, official, person chairing the meeting of the collegiate body in whose proceedings the case of an administrative offense is being processed, ask questions related to the subject of the relevant actions, the person in respect of whom the proceedings are being conducted, the victim and witnesses;
make statements and remarks about the actions he performs. Statements and remarks shall be recorded in the minutes.
Any adult who is not interested in the outcome of the case and who has special knowledge in science, technology, art or craft, sufficient to conduct an examination and give an expert opinion, can be involved as an expert. The expert must:
to appear at the call of a judge, body, official in whose proceedings the case of an administrative offense is being carried out;
give an objective conclusion on the questions put to him, as well as the required explanations in connection with the content of the conclusion.
The expert is warned about administrative responsibility for giving a deliberately false conclusion. However, the expert has the right to refuse to give an opinion if the questions raised go beyond his special knowledge or if the materials provided to him are not enough to give an opinion.
The expert has the right:
get acquainted with the materials of the case on an administrative offense relating to the subject of the examination, file requests for granting him additional materials necessary to give an opinion;
with the permission of the judge, official, person chairing the meeting of the collegiate body in whose proceedings the case of an administrative offense is being processed, ask questions related to the subject of the examination, the person in respect of whom the proceedings are being conducted, the victim and witnesses;
indicate in his opinion the circumstances relevant to the case, which were established during the examination and about which he was not asked questions.
Any adult person who is not interested in the outcome of the case and who knows the languages or skills of sign language translation (understands the signs of the dumb or deaf) necessary for translation or sign language translation in the proceedings on an administrative offense can be involved as an interpreter. The interpreter is appointed by the judge, body, official, in whose proceedings is the case of an administrative offense. The translator is obliged to appear at the call of the judge, body, official in charge of the case of an administrative offense, complete the translation entrusted to him completely and accurately and certify the correctness of the translation with his signature. The translator is warned about the administrative responsibility for performing a knowingly incorrect translation.
The prosecutor has the right to initiate proceedings in the case of an administrative offense; participate in the consideration of a case on an administrative offense, file petitions, give opinions on issues arising during the consideration of the case; file a protest against a decision in a case on an administrative offense, regardless of participation in the case, as well as perform other actions provided for by federal law.
In the process of proceedings in cases of administrative offenses, an important role is played by the determination of the circumstances to be clarified in the case of an administrative offense (subject of proof), as well as the collection and evaluation of evidence.
According to the Code of Administrative Offenses, the subject of proof in any case of an administrative offense is:
1) the presence of an event of an administrative offense;
2) the person's guilt in committing an administrative offense;
3) circumstances mitigating administrative responsibility and circumstances aggravating administrative responsibility;
4) the nature and amount of damage caused by the administrative offence;
5) circumstances excluding proceedings in a case on an administrative offense;
6) other circumstances that are important for the correct resolution of the case, as well as the reasons and conditions for committing an administrative offense.
Evidence in a case of an administrative offense is any factual data, on the basis of which the judge, body, official in charge of the case establishes the presence or absence of an event of an administrative offense, the guilt of the person involved in administrative responsibility, as well as other circumstances, relevant to the correct resolution of the case Dodin E.The. Evidence in the administrative process. M., 1973. S. 8-10.
Authenticity is an important property of evidence. Reliable is evidence, the truth of which is not in doubt. Reliability can be replenished in the process of additional administrative investigation. Evidence, the receipt of which is associated with the infringement of the rights and interests of citizens, legal entities, individual entrepreneurs, are considered insignificant. The use of evidence obtained in violation of the law is not allowed. Obtaining evidence should be carried out only by a competent official.
According to the nature of the connection between the evidence and the fact to be established, the evidence is divided into direct and indirect. Direct evidence unambiguously confirms or refutes the existence of any of the circumstances to be proven. The value of direct evidence is unambiguous in interpretation and all questions are reduced only to assessing its reliability. Circumstantial evidence establishes pro-intermediate facts. With the help of these facts, a circumstance that is directly related to the subject of proof can be clarified.
It should also be noted that each evidence must have the properties of admissibility and relevance. The admissibility of evidence is suitability for use in establishing circumstances relevant to the case, compliance with the requirements of the law regarding sources, the procedure for discovering, fixing and examining evidence. The fundamental element of admissibility is the legitimacy of the source. Factual data obtained, in particular, from anonymous sources cannot serve as evidence. The method of obtaining evidence must also be legal. Evidence can be obtained only in the manner prescribed by law (for example, inspection of the premises, seizure of things). In this case, all procedural requirements must be observed; the evidence obtained must be properly formatted.
The relevance of evidence indicates the connection of its content with the circumstances to be proved in the case, on the basis of which it can be used to establish these circumstances. Evidence will be relevant if it contains information about any facts that have any bearing on the case. The determination of the relevance of evidence occurs in the process of proof. It begins with the collection of evidence, when the question is decided on what procedural actions need to be carried out and what results can be expected from them in terms of clarifying the circumstances of the case.
Physical evidence in a case of an administrative offense is understood as the instruments of committing or objects of an administrative offense, including the instruments of committing or objects of an administrative offense that have retained its traces. Material evidence, if necessary, is photographed or recorded in another established way and attached to the case of an administrative offense. The presence of physical evidence is recorded in the protocol on an administrative offense (or in another protocol). The judge, body or official in whose proceedings the case of an administrative offense is located is obliged to take the necessary measures to ensure (the safety of material evidence until the case is resolved on the merits, and also to make a decision on them at the end of the consideration of the case.
Documents are recognized as evidence if the information stated or certified in them by organizations, their associations, officials and citizens is relevant for the proceedings on an administrative offense. Documents may contain information recorded both in writing and in another form. Documents may include photographic and filming materials, sound and video recordings, information databases and data banks, and other information carriers. The judge, body or official who is in charge of the case of an administrative offense are obliged to take the necessary measures to ensure the safety of documents until the case is resolved on the merits, and also to make a decision on them after the consideration of the case.
At the same time, it should be noted that in cases where documents have signs of material evidence, then they are material evidence.
Evidence according to the Code of Administrative Offenses also includes indications of special technical means. Special technical means are understood as measuring instruments approved in accordance with the established procedure as measuring instruments, having the appropriate certificates and having passed metrological verification. Indications of special technical means are reflected in the protocol on an administrative offense.
The Code of Administrative Offenses establishes the procedure for the phased advancement of a case on an administrative offense. The stages of an administrative offense case are called stages of production. They are delimited from each other by the final procedural decision and differ in specific tasks, the range of bodies and persons involved in the proceedings, as well as procedural actions. The stages of proceedings in cases of administrative offenses are carried out in a logical sequence and constitute the production system. In accordance with the Code of Administrative Offenses (chapters 28-30), the following stages of proceedings in cases of administrative offenses can be distinguished:
initiation of an administrative case;
consideration of a case on an administrative offense;
revision of resolutions and decisions on cases of administrative offenses.
Initiation of proceedings on an administrative offense Khazanov C.D. Stage of consideration of a case on an administrative offense // Russian legal journal. 2004. No. 1. S. 104 - 119..
The initiation of a case on an administrative offense is an independent stage of proceedings in cases of administrative offenses and is a set of procedural actions aimed at establishing the fact of an administrative offense, as well as determining jurisdiction (jurisdiction). The initiation of a case on an administrative offense includes procedural activities to obtain information about an administrative offense, its execution and registration. The reasons for initiating a case on an administrative offense are:
1) direct detection by officials of offenses of sufficient data indicating the presence of an event of an administrative offense;
2) received from law enforcement, as well as from other state bodies, local self-government bodies, from public associations, materials containing data indicating the presence of an event of an administrative offense;
3) messages and statements of individuals and legal entities, as well as messages in the media mass media, containing data indicating the presence of an event of an administrative offense.
4) a case on an administrative offense may be initiated by an official authorized to draw up protocols on administrative offenses.
Of particular importance at the stage of initiating a case on an administrative offense is the preparation of a protocol on an administrative offense. A protocol on an administrative offense is understood as such a procedural document, which reflects information related to the fact of an unlawful act and characterizing the identity of the offender Panov AND.The. Administrative process in the Russian Federation: concept, principles and types // Bulletin of universities. Jurisprudence. 2000. No. 2. S. 114 - 127..
In accordance with the Code of Administrative Offenses, a protocol on an administrative offense is drawn up in all cases, with the exception of those when cases of administrative offenses are initiated by the prosecutor, as well as in summary proceedings, that is, when an administrative penalty is imposed without drawing up a protocol.
The protocol on an administrative offense shall indicate: the date and place of its compilation, position, surname, name, patronymic of the person who drew up the protocol (decree); information about the person against whom an administrative offense case has been initiated; surnames, addresses of witnesses and victims, if any; place, time and event of an administrative offense; an article of the Code of Administrative Offenses or a law of a constituent entity of the Russian Federation, a normative act providing for liability for this offense; explanation of the natural person or legal representative of the legal entity against whom the case has been initiated, other information necessary to resolve the case.
An individual or a legal representative of a legal entity against whom an administrative offense case has been initiated should be given the opportunity to familiarize themselves with the protocol on an administrative offense. These persons have the right to submit explanations and comments on the content of the protocol, which are attached to the protocol.
The record is signed by the person who drew it up and the person who committed the given offense, as well as witnesses and victims, if any. At the same time, the signing of the protocol by a person brought to administrative responsibility is his right, but not an obligation, which follows from his legal status as a person participating in the proceedings on the case of an administrative offense. The person who committed the offense has the right to submit explanations and comments on the content attached to the protocol, as well as state the reasons for his refusal to sign it. If the person who committed the offense refuses to sign the protocol, a record of this is made in it.
Protocols on administrative offenses are drawn up by officials of the bodies authorized to consider cases of administrative offenses, within the competence of the relevant body Tikhomirov Yu.A. Administrative law and process course. M., 1998. S. 251.
The decision to initiate a case on an administrative offense and conduct an administrative investigation is made by an official authorized to draw up a protocol on an administrative offense immediately after the fact of an administrative offense is revealed. This decision is drawn up in the form of a ruling, and the prosecutor - in the form of a resolution. The ruling on initiating a case on an administrative offense shall indicate the date and place of drawing up the ruling, the position, surname and initials of the person who drew up the ruling, the reason for initiating a case on an administrative offense, data indicating the presence of an event of an administrative offense, article of the Code of Administrative Offenses or the law of the subject of the Russian Federation, providing for administrative responsibility for this administrative offense.
In the process of administrative investigation, procedural actions are carried out, such as conducting an examination, requesting necessary items and documents, conducting audits, documentary checks, inventories, and others.
The term for conducting an administrative investigation may not exceed one month from the date of initiation of a case on an administrative offense. In exceptional cases, the specified period, at the written request of the official in charge of the case, may be extended by a higher official for a period of not more than one month, and in cases of violation of customs rules by the head of a higher customs authority for a period of up to six months.
At the end of the administrative investigation, a protocol on an administrative offense is drawn up or a decision is made to terminate the case on an administrative offense. The protocol is a procedural document that completes the administrative investigation. It systematizes the evidence collected in the case, formulates conclusions. The descriptive part of the protocol sets out the essence of the case: the place and time of the administrative offense, its methods, motives, consequences and other essential circumstances are indicated; the results of the procedural actions carried out; circumstances mitigating administrative punishment. If several persons are involved in the case of an administrative offense, then when describing the essence of the case, the role of each of them is indicated. Information about the person in respect of whom the administrative investigation is being carried out must be reliable.
The protocol (decision of the prosecutor) on an administrative offense is sent to the judge, body, official authorized to consider the case of an administrative offense, within 24 hours from the moment the protocol (issuance of a decision) on an administrative offense is drawn up. The protocol (decree of the prosecutor) on an administrative offense, the commission of which entails an administrative arrest, is submitted for consideration to the judge immediately after its preparation (issuance) Utkin D.V. Administrative legal proceedings in the system rule of law// Legal science and legal education reform: Sat. scientific Proceedings / Ed. Yu.N. Starilova. - Voronezh, 2003. S. 328 ..
When preparing for the consideration of a case on an administrative offense, if necessary, rulings may be made on the appointment of the time and place for the consideration of the case; about summoning the persons necessary for the consideration of the case, about requesting the necessary additional materials on the case, about appointing an expert examination; to postpone the consideration of the case; on the return of the protocol on an administrative offense and other case materials to the body, official who drew up the protocol, in the event that the protocol was drawn up and other case materials were drawn up by unauthorized persons, the protocol was drawn up incorrectly and other case materials were drawn up incorrectly, or the submitted materials were incomplete, which cannot be replenished during the consideration of the case, as well as on the transfer of the protocol on an administrative offense and other materials of the case for consideration according to jurisdiction, if the consideration of the case does not fall within the competence of the judge, body, official, to which the protocol on an administrative offense and other materials the cases were submitted for consideration, or a ruling was issued to challenge the judge, the composition of the collegiate body, the official Panov AND.The. Administrative and jurisdictional process. Saratov, 1998, p. 21.
In the presence of circumstances entailing, in accordance with the Code of Administrative Offenses, the termination of the case, a decision is made to terminate the proceedings in the case of an administrative offense.
The Code of Administrative Offenses establishes the following rules on the place of consideration of a case on an administrative offense. So, according to the general rule, the case of an administrative offense is considered at the place of its commission. At the request of the person in respect of whom proceedings are being conducted on the case of an administrative offense, the case may be considered at the place of residence of this person.
The case of an administrative offense, on which an administrative investigation was carried out, is considered at the location of the body that conducted the administrative investigation.
Cases of administrative offenses of minors, as well as administrative offenses provided for by Articles 5.33 (failure to comply with an agreement), 5.34 (dismissal of employees in connection with a collective labor dispute and a strike), as well as a number of other articles provided for by the Code of Administrative Offenses, are considered at the place of residence of the person in respect of whom proceedings are being conducted in the case of an administrative offense.
The case of an administrative offense entailing the deprivation of the right to drive a vehicle may be considered at the place of registration of the vehicle.
The Code of Administrative Offenses also determines the terms for considering a case on an administrative offense. Thus, as a general rule, a case of an administrative offense is considered within fifteen to twenty days from the date of receipt by a judge, body, official authorized to consider the case, a protocol on an administrative offense and other case materials. In the event of receipt of petitions from the participants in the proceedings in the case of an administrative offense or if additional clarification of the circumstances of the case is necessary, the term for the consideration of the case may be extended by the judge, body, official considering the case, but not more than for one month.
The case of an administrative offense, the commission of which entails administrative arrest, is considered on the day of receipt of the protocol on an administrative offense and other materials of the case, and in relation to a person subjected to administrative detention - no later than 48 hours from the moment of his detention.
A special legal burden within the framework of this stage is the consideration of a case on an administrative offense, since it is at this stage that the case is resolved on the merits. Consideration of the case on the merits means clarification of the circumstances with which such legal consequences are associated, such as bringing a person to administrative responsibility and imposing an administrative penalty. Finding out the circumstances that are important for the correct resolution of the case is the responsibility of the body (official) considering the case of an administrative offense.
When considering a case on an administrative offense, a protocol on an administrative offense is announced, and, if necessary, other materials of the case. Explanations of an individual or a legal representative of a legal entity in respect of which proceedings are being conducted on an administrative offense are heard, testimonies of other persons participating in the proceedings, explanations of a specialist and an expert opinion, other evidence is examined, and in the case of the participation of a prosecutor in the consideration case, its conclusion is heard. When considering a case by a collegiate body, a protocol is drawn up on the consideration of a case on an administrative offense Tikhomirov Yew.A. Administrative legal proceedings in Russia: development prospects // Russian justice. 1998. No. 8. S. 37..
The result of the consideration of the case on an administrative right-violation is the adoption of a decision. Based on the results of the consideration of cases of administrative offenses, the following types of decisions are issued: a) on the imposition of an administrative penalty; b) to terminate the proceedings on the case.
A decision to impose an administrative penalty is issued if the case materials prove the person's guilt in committing an administrative offense, if there are no circumstances excluding administrative liability, and there are no grounds for releasing the person from administrative liability. The determination of the measure of punishment is carried out within the framework established by the normative act, providing for liability for the committed offense, in strict accordance with the legislation on administrative offenses and taking into account the principle of individualization.
The structure of the resolution consists of introductory, descriptive and resolutive parts.
The introductory part should indicate: the number of the resolution, the date of its issuance, the name of the settlement in whose territory the body is located; name of the body considering the case of an administrative offense, position, surname, first name, patronymic of the judge, official, name and composition of the collegiate body that issued the decision; information about the person in respect of whom the case was considered (last name, first name, patronymic), full name of the legal entity. In this case, other information may be indicated, for example, the identification number of the taxpayer, in respect of which a decision was made for a violation in the field of taxation; data on the disability of a person, the presence of state awards, honorary, military and other ranks Chechina N.A. Consideration by the courts of cases arising from administrative-legal relations (To the draft Code of Civil Procedure of the Russian Federation) // Jurisprudence. 1994. No. 5. S. 117..
The descriptive part of the decision is a reasoned decision that a judge, official, collegiate body takes on the case of an administrative offense under consideration. The decision sets out the circumstances established during the consideration of the case. The most important component of the descriptive part is the analysis and evaluation of the evidence examined during the consideration of the case. In the ruling, all evidence must be evaluated. A judge, an official must indicate which of the evidence is reliable and which is unreliable, give convincing arguments to support their conclusions.
The operative part of the decision is a logical and legal conclusion from the descriptive part, which clearly formulates the decision on the case under consideration of an administrative offense: last name, first name, patronymic of the individual, name of the organization; a decision to recognize a person against whom an administrative offense case is being conducted as guilty; the relevant article of the Code of Administrative Offenses, according to which this person found guilty; type and size of administrative punishment (basic and additional); the final measure of administrative punishment.
The decision to terminate the proceedings is issued in cases where there is at least one of the circumstances excluding the proceedings; the committed offense is characterized by insignificance and the collegial body (official) decided to confine itself to announcing an oral remark, and also if it is established that the offense contains signs of a crime and the case materials were transferred to the prosecutor, the body of preliminary investigation or inquiry Bahrakh D.N., Rossinsky B .V., Starilov Yu.N. Administrative law. Textbook for high schools. - M., 2004.
The decision on the case of an administrative offense is announced immediately after the end of the consideration of the case. At the same time, a copy of the decision in the case of an administrative offense is handed against receipt to the individual or the legal representative of the individual, or the legal representative of the legal entity in respect of which it was issued, as well as to the victim at his request, or sent to the indicated persons within three days from the date of issuance of the indicated -th resolution.
An appeal against a decision in a case of an administrative offense is a set of procedural actions aimed at restoring the violated rights and protected interests of citizens. The decision in the case of an administrative offense may be appealed by the person in respect of whom the proceedings are being conducted, by the victims, the legal representative of the individual, the legal representative of the legal entity, the defense counsel and the representative.
The object of appeal is rulings on cases of administrative offenses that have not entered into legal force. In such cases, jurisdiction is established depending on the nature of the administrative offense and the place of its commission, as well as the subject of the administrative offense.
Execution of decisions in cases of administrative offenses is the final stage of the proceedings in the case of an administrative offense. The tasks of the enforcement proceedings are to ensure the execution of the issued decision and the protection of the legitimate rights and interests of individuals and legal entities. The execution of decisions is determined by Section V of the Code of Administrative Offenses “Execution of decisions on cases of administrative offenses” Starilov Yu.N. Administrative Justice. - M., 2001. S. 45 ..
The execution of the decision begins after its entry into force. The Code of Administrative Offenses establishes the following time periods for the entry into force of a decision in a case on an administrative offense:
after the expiration of the period established for its appeal, if the said decision has not been appealed or challenged. According to the Code of Administrative Offenses, a complaint against a decision in a case of an administrative offense can be filed within ten days from the date of delivery or receipt of a copy of the decision. Thus, if within this period the complaint was not filed, and the prosecutor's protest was not brought, then the decision enters into legal force;
after the expiration of the period established for appealing against a decision on a complaint, protest, if the said decision has not been appealed or protested, except in cases where the decision annuls the issued decision. The term for appealing against a decision on a complaint or bringing a protest is ten days, and for complaints against a decision on administrative arrest - one day from the date of its receipt. Therefore, if the decision on the complaint has not been appealed, then the decision on the case of an administrative offense shall enter into force ten days after the decision on the primary complaint is made;
after the issuance of a non-appealable decision on a complaint, protest, except in cases where the decision cancels the decision made by Demin A.A. administrative process in developing countries. Tutorial. - M., 1987. S. 5 - 14 ..
Enforcement of a decision in a case of an administrative offense is an organizational action for the implementation of the instructions contained in the decision by authorized bodies and officials. In the case of issuing several resolutions on the appointment of an administrative penalty in relation to one person, each resolution is enforced independently.
Proceedings on cases of administrative offenses consists of four stages, which, along with general tasks, have only its own tasks, as well as documents, circle of participants and other features.
At the first stage, the fact and circumstances of the commission of an administrative offense, data on the perpetrator are revealed, and a protocol is drawn up. At the second stage, the competent authority considers the case and makes a decision on it. At the third - optional stage - the decision on the case of an administrative offense is reviewed, at the fourth - the adopted decision is implemented.
Initiation of a case on an administrative offense is the initial stage of proceedings in cases of administrative offenses (Chapter 28 of the Code of Administrative Offenses of the Russian Federation).
The basis for initiating a case is the commission by a person of an act containing signs of an administrative offense.
Reasons for initiating a case on an administrative offense are the direct discovery by an official authorized to draw up a protocol on an administrative offense of sufficient data indicating the presence of an event of an administrative offense; information of individuals and legal entities, law enforcement and other state bodies and local governments, public associations, indicating the existence of an administrative offense; fixing an administrative offense in the region traffic or in the field of landscaping by special technical means operating in automatic mode; confirmation of the data contained in the message or application of the owner (possessor) of the vehicle that the vehicle was in the possession or use of another person and other reasons specified in Art. 28.1 of the Code of Administrative Offenses of the Russian Federation.
A case on an administrative offense may be initiated by an official authorized to draw up protocols on administrative offenses only if there is at least one of the indicated reasons and sufficient data indicating the presence of an event of an administrative offense.
Establishment of the fact of an offense is recorded in a protocol on an administrative offense, which is sent within three days (for offenses that entail administrative arrest - or administrative expulsion - immediately) from the moment it is drawn up to the body (official) authorized to consider this category of cases in accordance with Ch. 23 of the Code of Administrative Offenses of the Russian Federation.
A protocol on an administrative offense is drawn up immediately after the commission of an administrative offense is discovered, or within two days if additional clarification of the circumstances of the case or data on the persons brought to administrative responsibility is required. In some cases, a protocol may not be drawn up (Article 28.6).
Ch. 4 Art. 28.1 fixes the moments at the occurrence of which the case of an administrative offense is considered initiated. These, for example, include: drawing up a protocol for examining the place where an administrative offense was committed; drawing up the first protocol on the application of measures to ensure the proceedings in the case of an administrative offense, provided for by Art. 27.1 of the Code of Administrative Offenses of the Russian Federation (detention, arrest, body search, etc.); drawing up a protocol on an administrative offense; issuing a ruling on initiating a case on an administrative offense if it is necessary to conduct an administrative investigation, etc.
An administrative investigation is conducted at the place where an administrative offense was committed or discovered. The term for conducting an administrative investigation may not exceed one month from the date of initiation of a case on an administrative offense. In exceptional cases, the specified period may be extended by no more than one month, and in cases of violation of customs rules and the Rules of the Road or the rules for operating a vehicle, which caused minor or moderate harm to the health of the victim - for up to six months. At the end of the administrative investigation, a protocol on an administrative offense is drawn up or a decision is made to terminate the case on an administrative offense.
The second stage of proceedings in a case on an administrative offense - consideration of a case on an administrative offense- is the central stage.
Chapter 29 of the Code of Administrative Offenses of the Russian Federation contains a detailed procedure for considering cases, including the place and terms for considering cases, as well as types of decisions in a case of an administrative offense.
Cases of administrative offenses may be considered at the place where the administrative offense was committed; at the location of the body that conducted the administrative investigation; at the place of residence of the person in respect of whom proceedings are being conducted in the case of an administrative offense (for example, in relation to minors); at the location of the body that received the materials received using special technical means operating in automatic mode.
The case of an administrative offense is considered: "general" term - 15 days from the date of receipt by the body or official authorized to consider the case, the protocol on an administrative offense and other case materials. If the case is considered by a judge, then this period is two months. In the event of petitions by the participants in the proceedings in the case of an administrative offense or if additional clarification of the circumstances of the case is necessary, the term for the consideration of the case may be extended by no more than one month.
The Code also establishes shortened terms for the consideration of cases: in cases of offenses that infringe on the rights of citizens - a five-day period; in cases of offenses involving administrative arrest or administrative expulsion - on the day of receipt of the protocol and other materials of the case, and in relation to a person subjected to administrative detention - no later than 48 hours from the moment of his detention; in cases of offenses that may lead to an administrative suspension of activities in the event of a temporary ban on activities - seven days.
It should be borne in mind that the Code of Administrative Offenses of the Russian Federation in Art. 4.5. establishes the limitation period for bringing to administrative responsibility. A decision in a case on an administrative offense cannot be issued after two months (and in a case considered by a judge - after three months) from the day the administrative offense was committed, and for some offenses (for example, customs, currency, antimonopoly legislation) - after one year and even six years (for violating the legislation of the Russian Federation on combating corruption). In case of a continuing administrative offense, the specified time limits begin to be calculated from the day the administrative offense was discovered.
Article 29.7 of the Code of Administrative Offenses of the Russian Federation determines the sequence of procedural actions when considering a case on an administrative offense. The consideration of the case begins with an announcement of who is considering the case (position, surname, name, patronymic, special rank); what case is subject to consideration (information about the offense, time and place of its commission); who and on the basis of what law is brought to administrative responsibility (surname, name, patronymic of an individual, name of a legal entity and surname, name, patronymic of a legal representative of a legal entity, article of the Code of Administrative Offenses of the Russian Federation or the law of a constituent entity of the Russian Federation, under which it is brought to administrative responsibility).
Further, the authorized body (official) needs to establish the fact of the appearance of the summoned participants in the proceedings, verify their identity, the powers of the legal representatives of the individual or legal entity, the defense counsel and the representative. If the participants in the proceedings fail to appear, the reasons are established, and a decision is made to consider the case in their absence or to postpone the consideration of the case.
An important place in the consideration of the case is occupied by an explanation to the persons participating in the proceedings of the case of their rights and obligations.
When considering the case on the merits, a protocol on an administrative offense is announced, and, if necessary, other materials of the case. Competitiveness of the process must be ensured: explanations of the persons in respect of whom the proceedings are being conducted, testimony of other participants in the process are heard.
Based on the results of the consideration of the case, either a decision is issued to impose an administrative penalty or a decision to terminate the proceedings on the case of an administrative offense, which is announced immediately after the end of the consideration of the case. A copy of the decision is handed over against receipt to the persons specified in the law or sent by registered mail within three days from the date of the decision (Article 29.11).
The optional step is revision of judgments and decisions on cases of administrative offenses (Chapter 30 of the Code of Administrative Offenses of the Russian Federation). The existence of this stage is a guarantee of the legality and validity of the application of administrative penalties.
The person in respect of whom it was issued, the victim, legal representatives of an individual and legal entity, a defender and a representative authorized under the President of the Russian Federation for the protection of the rights of entrepreneurs are entitled to appeal against a decision in a case on an administrative offense.
The law establishes primarily a judicial procedure for appeal. So, a complaint against a decision made by a judge is considered by a higher court; issued by a collegial body or bailiff - the district court at the location of the collegiate body or bailiff; issued by an official - a higher body, a higher official or a district court at the place of consideration of the case, etc. (for details, see Article 30.1 of the Code of Administrative Offenses). A complaint can be filed within ten days (and in cases of violation of certain constitutional rights of citizens - within five days) from the date of delivery or receipt of a copy of the decision in the case of an administrative offense.
The terms for consideration of complaints against decisions in a case on an administrative offense are differentiated. If the complaint is considered by a body or an official, a ten-day period is set, and if the court - a two-month period from the date of its receipt with all the materials of the case. Reduced terms for consideration of complaints in certain categories of cases have also been established. First, complaints against decisions on administrative arrest or administrative expulsion must be considered within 24 hours, if the person held liable is serving an administrative arrest or is subject to administrative expulsion. Secondly, a five-day period is set for considering complaints against decisions on offenses that infringe on certain constitutional rights of citizens, as well as complaints against a decision on the imposition of an administrative penalty in the form of an administrative suspension of activities.
The decision made on a complaint against a decision in a case of an administrative offense is not final and can be appealed to the court at the place of consideration of the complaint, and then to a higher court. Thus, the Code establishes a repeated appeal against a decision and a decision on a complaint against this decision.
The analysis of the stages of proceedings in cases of administrative offenses makes it possible to most clearly illuminate the specifics and content of the administrative and jurisdictional activities of the Department of Internal Affairs. The latter should be understood as a separate part of production, characterized by special procedural goals and specific tasks.
The question of the number and exact name of the stages does not have a single solution today. The most common is the approach according to which the proceedings on cases of administrative offenses consist of four stages: 1) initiation of a case on an administrative offense, 2) consideration of a case on an administrative offense, 3) review of rulings and decisions on cases of administrative offenses, 4) execution of a decision in an administrative case.
The structural element of the stage is the stage. For example, as stages of the stage of reviewing a decision on cases of administrative offenses, one can single out filing a complaint, preparing for its consideration, considering the complaint and making a decision on it, and implementing the decision.
The content of the stages of the same name and even their sequence may depend on the type of proceedings in cases of administrative offenses. So, they distinguish general (usual order), simplified (accelerated), special production.
In simplified proceedings, a protocol on an administrative offense (hereinafter referred to as the protocol) is not drawn up, the punishment is imposed in accordance with Art. 28.6 of the Code of Administrative Offenses of the Russian Federation (for example, announcing a warning on the spot). In this case, the revision stage is eliminated and the other three are merged.
A special procedure has been established for certain types of administrative offenses, it represents the same sequence of stages as the general procedure, but is characterized by the presence of special rules: special terms for detention, consideration of a case, etc. (for example, in petty hooliganism proceedings).
The list of stages is universal for the production of any case of an administrative offense, which allows you to streamline the process of studying it, as well as assessing the effectiveness and legality. An analysis of the sequence of stages makes it possible to reveal the content and logic of proceedings in cases of administrative offenses and will serve as a structural basis for further consideration of the topic.
The stage of initiating a case on an administrative offense
The stage of initiating a case on an administrative offense is a complex of procedural actions aimed at establishing the circumstances of the offense committed, their procedural fixation and preparation of materials necessary to resolve the case on the merits.
With regard to the activities of the police, this stage is the most complex and multifaceted.
Firstly, the initiation of a case on an administrative offense is a structural element of the proceedings on cases of administrative offenses.
According to part 4 of Art. 28.1 of the Code of Administrative Offenses of the Russian Federation, a case is considered initiated from the moment:
A. Drawing up the first protocol on the application of measures to ensure the proceedings in a case of an administrative offense, provided for in Article 27.1 of the Code of Administrative Offenses of the Russian Federation.
To measures to ensure the production of cases of administrative offenses in accordance with Art. 27.1 of the Code of Administrative Offenses of the Russian Federation include: delivery; administrative detention; personal search, search of things, search of a vehicle that is with an individual; inspection of the premises, territories belonging to the legal entity, things and documents located there, etc. The objectives of the implementation of these measures are: suppression of an administrative offense, identification of the offender, drawing up a protocol on an administrative offense if it is impossible to draw it up at the place of detection of an administrative offense, ensuring timely and correct consideration of the case of an administrative offense and the execution of the decision adopted in the case. The procedure for implementing measures to ensure proceedings in a case of an administrative offense is regulated in detail by Chapter 27 of the Code of the Russian Federation on Administrative Offenses, as well as a number of other regulations.
Officials of the Department of Internal Affairs are the most universal subjects that apply measures to ensure the proceedings in cases of administrative offenses. Usually, the right of police officers to carry out these measures is directly related to their right to draw up protocols on administrative offenses (Article 28.3 of the Code of Administrative Offenses of the Russian Federation). However, in some cases, the law provides for special rules. So, for example, the list of officials authorized to carry out administrative detention is fixed by order of the Ministry of Internal Affairs of Russia No. 444; only officials who have been granted the right to state supervision and control over the safety of traffic and operation of a vehicle of the corresponding type are authorized to remove from driving and send for a medical examination for intoxication (see Article 27.12 of the Code of Administrative Offenses of the Russian Federation); drive (Article 27.15 of the Code of Administrative Offenses of the Russian Federation) is carried out on the basis of the determination of the subject considering the case of an administrative offense; In addition, internal affairs officials have the right to apply measures to ensure the proceedings on cases of administrative offenses (and, accordingly, initiate cases on administrative offenses) upon detection of any administrative offenses if they are contacted by officials authorized to draw up protocols on the relevant administrative offenses (see. for example, paragraph 1 part 1 article 27.2 of the Code of Administrative Offenses of the Russian Federation).
The law does not regulate the form of protocols for the application of measures to ensure proceedings in cases of administrative offenses, but specifies their content (for example, part 6 of article 27.7 of the Code of Administrative Offenses of the Russian Federation). In addition, it is possible to record individual measures in a protocol on an administrative offense or in a protocol on the application of other measures to ensure proceedings in cases of administrative offenses (for example, see part 3 of article 27.2 of the Code of Administrative Offenses of the Russian Federation).
The performance of such measures as the inspection of a vehicle, the seizure of things and documents, the arrest of goods, vehicles and other things, etc., is possible only in the presence of two attesting witnesses.
Since the implementation of measures to ensure proceedings in cases of administrative offenses is always associated with the restriction of the rights of citizens, the police officer is obliged to explain to the persons in respect of whom these measures are applied, the basis and reason for such restriction, as well as the rights and obligations arising in connection with this (part 4 article 5 of the Police Law).
Measures to ensure proceedings in cases of administrative offenses must be distinguished from numerous coercive measures of a different nature: detention and personal search of a suspect (Chapter 12 of the Criminal Procedure Code of the Russian Federation), external examination (Charter of the PPSM), detention and delivery of minors to temporary detention centers for juvenile offenders (paragraph 10 article 11 of the Law on Police), etc.
Damage caused by the illegal application of measures to ensure the proceedings in a case of an administrative offense is subject to compensation in the manner prescribed by civil law.
B. Drawing up a protocol on an administrative offense or a decision by the prosecutor to initiate proceedings on an administrative offense.
The law regulates in detail only the content of the protocol (see: part 2 of article 28.2 of the Code of Administrative Offenses of the Russian Federation). Its form can be arbitrary. Under these conditions, the former order, when such a form was fixed by a departmental normative legal act, will most likely be preserved. However, even in this case, a protocol drawn up by a competent person on an “old” form or a blank sheet of paper in a timely manner and indicating all the information provided for by the Code of Administrative Offenses of the Russian Federation will entail the necessary procedural consequences.
Serious difficulties are raised by the question of the list of officials authorized to draw up protocols. This list is enshrined in Article 28.3 of the Code of Administrative Offenses of the Russian Federation. If the case can be considered by officials of the Department of Internal Affairs (see Part 1 of Article 23.3 of the Code of Administrative Offenses of the Russian Federation), then all certified employees of the Department of Internal Affairs have the right to draw up protocols on an administrative offense. If the officials of the Department of Internal Affairs have the right only to draw up a protocol on an administrative offense (part 2 of article 28.3 of the Code of Administrative Offenses of the Russian Federation), then in accordance with part 4 of art. 28.3 of the Code of Administrative Offenses of the Russian Federation, the list of authorized officials is determined by order of the Ministry of Internal Affairs of Russia dated June 2, 2005 No. 444.
The list of entities authorized to draw up protocols on administrative offenses under the legislation of the constituent entities of the Russian Federation, in accordance with Part 6 of Art. 28.3 of the Code of Administrative Offenses of the Russian Federation is determined by the latter independently. In most cases, members of the public security police have this right, regardless of their position; all police officers, as well as all police officers of internal affairs bodies. In some cases, the law indicates the need to adopt an additional normative act regulating the list of officials authorized to draw up protocols on administrative offenses.
Of interest is the question of the timing of the protocol, which, according to Art. 28.5 of the Code of Administrative Offenses of the Russian Federation should be drawn up immediately after an administrative offense has been committed, and in cases where additional proceedings are required, within two days from the moment the offense was discovered (if an administrative investigation was carried out, then upon its completion). These terms are not statute of limitations, but procedural. If they are violated, damage is done to the efficiency of the process, and possibly to the interests of its participants, however, the completeness, comprehensiveness and objectivity of the study of all the circumstances of the case do not suffer from this. Therefore, violation of the specified terms may entail the application of disciplinary measures to the relevant officials, but does not deprive the protocol of its legal force (except in cases where the statute of limitations for bringing a person to administrative responsibility has been violated).
The Code of Administrative Offenses of the Russian Federation does not exclude the possibility of registering two or more administrative offenses committed by one person in a single protocol in cases where the break in the person’s illegal actions can distort the overall picture of the offense and, in addition, creates the prerequisites for violating Part 2 of Art. 4.4 of the Code of Administrative Offenses of the Russian Federation (when several compositions are simultaneously considered by one official). When deciding on the number of required copies of the protocol, the following are taken into account: a) the system for evaluating the results of police activities, b) the rules for sentencing for several administrative offenses (see: Article 4.4 of the Code of Administrative Offenses of the Russian Federation), c) the total number of subjects considering the case materials, d) the need to hand over a copy of the protocol to individual participants in the proceedings (see: Art. 28.2 of the Code of Administrative Offenses of the Russian Federation).
The Code of Administrative Offenses of the Russian Federation does not require the participation of attesting witnesses in the preparation of the protocol. In practice, a similar question arises in connection with the refusal of a person brought to administrative responsibility to sign. In such cases, an appropriate entry is made in the protocol by the person who composes it (see part 5 of article 28.2 of the Code of Administrative Offenses of the Russian Federation).
According to part 6 of Art. 28.2 of the Code of Administrative Offenses of the Russian Federation, a copy of the protocol is handed over to an individual or a legal representative of a legal entity in respect of which an administrative offense case has been initiated, as well as to the victim.
The problem of non-appearance of offenders for consideration of a case on an administrative offense is very painful. Given the complexity practical application Art. 27.15 of the Code of Administrative Offenses of the Russian Federation (Privod), in such cases, a note is made in the protocol or in another document against signature about notifying the person of the time and place of the consideration of the case on an administrative offense.
According to Art. 28.4 of the Code of Administrative Offenses of the Russian Federation, the prosecutor has the right to initiate a case on any administrative offense by issuing a decision in accordance with the requirements established for the protocol on an administrative offense.
B. Issuing a ruling on initiating a case on an administrative offense if it is necessary to conduct an administrative investigation, as provided for in Article 28.7 of the Code of Administrative Offenses of the Russian Federation;
An administrative investigation (Article 28.7 of the Code of Administrative Offenses of the Russian Federation) is carried out in relation to certain types of administrative offenses (for example, in case of violation of consumer protection legislation, in the field of traffic, etc.), if it is necessary to carry out examinations and other long-term procedural actions. Conducting an administrative investigation is also possible under the relevant articles of the legislation of the constituent entities of the Russian Federation. The decision to initiate a case and conduct an administrative investigation is made by an official authorized to draw up a protocol, in the form of a ruling on initiating a case on an administrative offense, or by a prosecutor in the form of a decision. At the end of the administrative investigation, a protocol is drawn up or a decision is made to terminate the case on an administrative offense.
AT scientific literature there is no consensus on the place of administrative investigation in the proceedings on administrative offenses. Judging by the content and goals, this is not a stage, not a stage, but possible form stages of initiating a case on an administrative offense, a special legal regime for preparing case materials for consideration.
D. Issuance of a warning or from the moment of imposition (collection) of an administrative fine at the place of commission of an administrative offense if, in accordance with Part 1 of Art. 28.6 of the Code of Administrative Offenses of the Russian Federation, a protocol on an administrative offense is not drawn up.
With regard to the activities of internal affairs bodies, a simplified procedure for proceedings in cases of administrative offenses is possible if a number of conditions are met:
a) an administrative penalty is imposed in the form of a warning or a fine up to one minimum wage;
b) the person brought to administrative responsibility does not dispute the fact of the offense, the punishment being imposed, in accordance with and is ready to pay the amount of the fine on the spot;
c) an employee of the internal affairs body has the right to consider the relevant administrative offense and has available resolutions-receipts of the established form, which are drawn up in two copies, one of which is issued to the person upon payment of the administrative fine on the spot. The absence of any of these elements makes it impossible to implement this order. In this case, production is carried out in a general or special order.
If an administrative offense is committed under Chapter 12 of the Code of Administrative Offenses of the Russian Federation, a decision to impose an administrative fine is issued in the manner prescribed by Article 32.3 of the Code of Administrative Offenses of the Russian Federation, and an administrative fine is levied in the manner prescribed by Article 32.2 of the Code of Administrative Offenses of the Russian Federation.
Giving the term “initiation of a case on an administrative offense” a normative character (fixing it in the text of the Code of Administrative Offenses of the Russian Federation), the legislator did not seek to provide a complete analogy with the criminal process. Firstly, if a criminal case is initiated when there are sufficient data indicating the signs of a crime, then an administrative offense case is often initiated after all the elements of the offense have been established. Secondly, the Code of Administrative Offenses of the Russian Federation does not exclude the possibility of carrying out any procedural actions before initiating a case on an administrative offense. Thirdly, an eyewitness to the offense (for example, a traffic police inspector), as well as various officials of the internal affairs body at the same time, can initiate and conduct a case on an administrative offense.
The main reason for the appearance of this category in the Code of Administrative Offenses of the Russian Federation, apparently, was the desire to introduce order into the work with citizens' appeals and other information about the commission of administrative offenses. According to part 5 of Art. 28.1 of the Code of Administrative Offenses of the Russian Federation, when an appropriate reason arises, a decision must be made either to initiate a case or to refuse to initiate it in the shortest possible time. However, in reality this is not always possible. So, for example, in the presence of "dark" petty theft, none of the decisions allowed by law can be made before the expiration of the statute of limitations for bringing to administrative responsibility.
The stage of initiating a case on an administrative offense ends by sending the materials of the case according to jurisdiction.
If the protocol on an administrative offense is drawn up by an unauthorized person, as well as in other cases provided for in paragraph 4 of part 1 of Art. 29.4 of the Code of Administrative Offenses of the Russian Federation, the case materials are returned for revision. Deficiencies are eliminated within a period of not more than three days from the date of receipt from the judge, body, official considering the case of an administrative offense. Modified materials are sent for consideration within 24 hours from the date of elimination of the relevant deficiencies.
Secondly, the stage of initiating a case on an administrative offense is the period of the most active collection of evidence.
Evidence - the procedural activity of the subjects carrying out proceedings on cases of administrative offenses, to collect, verify and evaluate evidence in order to establish the objective truth in the case and make a legal jurisdictional decision on this basis. As a type of activity within the framework of proceedings in cases of administrative offenses, it can be carried out at all stages, except for the stage of execution of a decision in a case of an administrative offense.
It should be noted that proof as a procedure does not take place in all cases of bringing the subject to administrative responsibility. Exception from general rule constitute cases of application of Art. 28.6 of the Code of Administrative Offenses of the Russian Federation (appointment of an administrative penalty without drawing up a protocol). The activities of the competent subject carried out in this case are not in the nature of evidence.
Evidence in accordance with Part. 1 Article. 26.2 of the Code of Administrative Offenses of the Russian Federation are any factual data, on the basis of which the competent subject establishes the presence or absence of circumstances that are important for the correct resolution of the case.
In accordance with Part 2 of Art. 26.2 of the Code of Administrative Offenses of the Russian Federation, sources of evidence in a case of an administrative offense may be: a protocol on an administrative offense, other protocols provided for by the Code of Administrative Offenses of the Russian Federation, explanations of a person in respect of whom proceedings are being conducted in a case of an administrative offense, testimonies of the victim, witnesses, expert opinions, other documents, indications of special technical means, physical evidence.
In order to effectively collect evidence in cases of administrative offenses, internal affairs officials are vested with a wide range of powers: to demand, if necessary, the provision of identity documents; take explanations; conduct personally and take part in the conduct of administrative procedural actions; draw up protocols on administrative offenses under certain articles of the Code of Administrative Offenses of the Russian Federation, laws of the constituent entities of the Russian Federation, etc. (see: article 11 of the Law on Police).
It is noteworthy that the Code of Administrative Offenses of the Russian Federation does not mention some very common actions for collecting evidence, for example, examining the scene of an incident (Article 27.8 can only be considered as its particular form), examining material evidence, etc. Meanwhile, it is obvious that in certain categories of cases, for example, in cases of offenses under Art. 7.27 of the Code of Administrative Offenses of the Russian Federation (petty theft), in cases of an accident, the implementation of such actions is a prerequisite for successful proceedings. Despite the fact that these measures are applied in practice, it is often a question of the possibility of their implementation in the framework of proceedings on administrative offenses, as well as the implementation of measures similar to confrontation, presentation for identification, etc., requires additional scientific research.
In addition to collecting evidence at the stage of initiating a case, preparation of documents is carried out, through which procedural decisions are recorded at this stage.
The most important of them are:
a) a protocol on an administrative offense;
b) a ruling on the refusal to initiate a case on an administrative offense (part 5 of article 28.1 of the Code of Administrative Offenses of the Russian Federation);
c) a ruling on the return of case materials (part 3 of article 28.8 of the Code of Administrative Offenses of the Russian Federation);
d) a decision to terminate proceedings in a case on an administrative offense (Article 28.9 of the Code of Administrative Offenses of the Russian Federation). The decision is issued by the official in whose proceedings the case of an administrative offense is located, in the presence of the circumstances specified in Art. 24.5 of the Code of Administrative Offenses of the Russian Federation: the absence of an event of an administrative offense (for example, if the act requires criminal legal qualification), the expiration of the statute of limitations for bringing to administrative responsibility, etc.
Thirdly, the initiation of a case on an administrative offense is the stage at which the rights and obligations of participants in proceedings on cases of administrative offenses are most clearly revealed.
The list of participants in proceedings in cases of administrative offenses, their rights and obligations are regulated by Chapter 25 of the Code of Administrative Offenses of the Russian Federation. These entities include:
1) a person in respect of whom proceedings are being conducted in a case on an administrative offense (Article 25.1);
2) the victim (Article 25.2);
3) legal representatives of an individual (Article 25.3);
4) legal representatives of a legal entity (Article 25.4);
5) defender and representative (art. 25.5);
6) a witness (Article 25.6);
7) witness (Article 25.7);
8) specialist (Article 25.8);
9) expert (Article 25.9);
10) translator (art. 25.10);
11) prosecutor (Article 25.11).
For some unknown reason, the legislator does not indicate judges, bodies, officials who carry it out as participants in the proceedings.
The subject of subjects of proceedings in cases of administrative offenses is also very problematic. For example, further research is required on issues related to ensuring: a) the appearance in the internal affairs body (court, CDN, etc.) of persons in respect of whom proceedings are being conducted on an administrative offense; b) participation in the case of an interpreter, defense counsel in the presence of administrative detention; etc.
Stage of consideration of a case on an administrative offense
Within the framework of this stage, on the basis of the collected materials, the question of the guilt of the person in respect of whom the proceedings are being conducted is resolved, and an appropriate law enforcement decision is made.
The internal affairs bodies are one of the most multifunctional structures of the system of administrative jurisdiction bodies. According to experts, more than 60 million people are annually brought to administrative responsibility by police departments, that is, approximately 80% of all citizens brought to administrative responsibility in the country.
Chapter 29 of the Code of Administrative Offenses of the Russian Federation is devoted to the legal regulation of the stage of consideration of a case on an administrative offense and the adoption of a decision on it.
A stage can be represented as a sequence of the following stages:
1) preparation of the case for consideration;
2) hearing the case;
3) making a decision on the case.
1. At the first stage, the measures provided for in Art. 29.1 of the Code of Administrative Offenses of the Russian Federation, the necessary determinations are drawn up (for example, on the appointment of a place and time for the consideration of the case, on the return of the protocol) or a decision is made to terminate the proceedings in the case of an administrative offense (see: Article 29.4 of the Code of Administrative Offenses of the Russian Federation).
2. The procedure for the second stage is regulated by Art. 29.7 of the Code of Administrative Offenses of the Russian Federation. At this stage, relevant announcements are made, the necessary information is clarified, the declared challenges and petitions are considered, etc., in necessary cases, determinations are made (for example, on the challenge of a specialist).
The Code of Administrative Offenses of the Russian Federation does not provide for the need to keep a protocol on the consideration of a case on an administrative offense by an official of the Department of Internal Affairs. Such an obligation is established only in relation to collegiate bodies (Article 29.8 of the Code of Administrative Offenses of the Russian Federation).
The total term for consideration of a case on an administrative offense is 15 days from the date of receipt of the protocol on an administrative offense and other materials. In necessary cases, the term for consideration may be extended by the subject considering the case, but not more than for one month, on which a reasoned ruling is issued. If the sanction of the norm provides for administrative arrest, the case is considered on the day of receipt of the protocol on the administrative offense and other materials of the case, and in respect of a person subjected to administrative detention, no later than 48 hours from the moment of his detention.
The place of consideration of a case on an administrative offense is, as a general rule, the place where it was committed. In the cases established by law, the case may be considered at the place of: a) residence of the person in respect of whom proceedings are being conducted on the case of an administrative offense; b) registration of the vehicle. Cases on administrative offenses, on which an administrative investigation was conducted, are considered at the location of the body that conducted the administrative investigation. In case of committing an administrative offense by a minor, as well as an offense provided for in Articles 5.33, 5.34, 6.10, 20.22 of the Code of Administrative Offenses of the Russian Federation, the case is considered at the place of residence of the person in respect of whom proceedings are being conducted on an administrative offense.
Within the meaning of Art. 25.1 of the Code of Administrative Offenses of the Russian Federation, the presence of a person in respect of whom proceedings are being conducted on an administrative offense is, as a general rule, not mandatory (although the subject of administrative jurisdiction may recognize him as such in each specific case). If there is data on the proper notification of the person about the place and time of the consideration of the case, in the absence of a request from him to postpone the consideration of the case (or the request is left without satisfaction), the case may be considered in his absence. However, it should be pointed out that such presence in most cases is advisable due to the fact that the exact determination of the moment of receipt or delivery of a copy of the decision in the case of an administrative offense will be of great procedural importance in the future. In addition, the presence of a person brought to administrative responsibility is mandatory when considering cases of administrative offenses entailing administrative arrest or administrative expulsion from the Russian Federation. To ensure the presence of the necessary persons (a person held liable, a witness, etc.), the Code of Administrative Offenses of the Russian Federation provides for such a coercive measure as a drive (Article 27.15 of the Code of Administrative Offenses of the Russian Federation).
During this stage, the evidence collected in the case is evaluated.
Evaluation of evidence is a continuous process, inherent in any stage of proof. According to its content, this is a mental, logical activity of persons carrying out proceedings in a case of an administrative offense. The object of such activity is each of the evidence and all the evidence collected in the case in their totality. To evaluate the totality of evidence means to decide whether it makes it possible to make a categorical legal jurisdictional decision in a case of an administrative offense.
Evaluation of evidence by inner conviction means the impartiality and independence of the law enforcement officer in its implementation. The subject carrying out proceedings in the case of an administrative offense is not bound either by his preliminary assessment of the evidence in the case, or by the assessment of the evidence of other entities at any stage of the proceedings.
Internal conviction must be based on a comprehensive, complete and objective study of the circumstances of the case in their entirety. No evidence can have predetermined validity. It is impossible to evaluate in advance, for example, indirect and direct evidence, the conclusion of an expert examination and the testimony of the victim, etc., as legally more or less weighty. Any evidence can be offset by a combination of other evidence. The same fully applies to the amount of evidence.
In the course of evaluating the evidence, their reliability, relevance, admissibility, and sufficiency are established.
The reliability of evidence means its ability to give true knowledge about the event and other legally significant circumstances of the offense.
The relevance of evidence is determined by its connection with the subject of proof, its ability to serve as a means of knowing the circumstances that constitute the subject of proof.
The admissibility of evidence is determined by the extent to which the source, conditions, methods of obtaining and fixing it comply with the requirements of the law. So, for example, it is allowed to use materials collected in the criminal procedure as evidence in cases of administrative offenses. At the same time, evidence obtained in violation of the law (part 3 of article 26.2 of the Code of Administrative Offenses of the Russian Federation), data that are in the nature of rumors, conjectures, assumptions, as well as the testimony of a witness who cannot indicate the source of his knowledge, are inadmissible.
The sufficiency of the evidence base is determined by the extent to which the evidence collected in the case makes it possible to establish all the circumstances of the case provided for by law at the level of knowledge about them that is necessary for the correct resolution of the case of an administrative offense.
When assessing the sufficiency of the collected evidence, it must be remembered that the process of proof cannot and should not be focused only on the elements of the offense, since their establishment does not always provide exhaustive grounds for making a legally justified decision in a particular case. An important condition for making a legal jurisdictional decision is the procedural establishment of circumstances mitigating and aggravating administrative responsibility (clause 4, article 26.1 of the Code of Administrative Offenses of the Russian Federation); circumstances excluding proceedings in a case of an administrative offense (clause 6, article 26.1 of the Code of Administrative Offenses of the Russian Federation); other circumstances that are important for the correct resolution of the case: the motive of the offense (the motive is covered by the concept of "other circumstances" when it is not an obligatory element of the subjective side of the offense), the property status of the offender and his family, the behavior of the offender immediately after the commission of the offense, the state of his health , and in some cases, members of his family, etc. One of the most important tasks of proceedings in cases of administrative offenses in accordance with Art. 24.1 of the Code of Administrative Offenses of the Russian Federation is to identify the causes and conditions that contributed to the commission of administrative offenses. Therefore, for the full resolution of the case on the merits, the establishment of these circumstances is also required (clause 7 of article 26.1 of the Code of Administrative Offenses of the Russian Federation).
3. Based on the results of the consideration of the case, a decision is made, which is of two types: a resolution and a ruling (Article 29.9 of the Code of Administrative Offenses of the Russian Federation). In addition, the subject of administrative jurisdiction, if necessary, may submit to the relevant organization or official a submission to eliminate the causes and conditions that contributed to the commission of an administrative offense (Article 29.13 of the Code of Administrative Offenses of the Russian Federation). Failure to take measures to eliminate the causes and conditions that contributed to the commission of an administrative offense within a month entails administrative liability under Art. 19.6 of the Code of Administrative Offenses of the Russian Federation.
The general rules for imposing administrative penalties are regulated by Chapter 4 of the Code of Administrative Offenses of the Russian Federation. The punishment is imposed within the limits of the sanction of the relevant norm (the Code of Administrative Offenses of the Russian Federation has separate exceptions, for example, see Part 3 of Article 23.3); the law does not allow the imposition of punishment below the lower limit.
A remark is not a punishment and can be declared orally for any administrative offense that, in the opinion of an official carrying out administrative and jurisdictional activities, is insignificant (Article 2.9 of the Code of Administrative Offenses of the Russian Federation). As practice shows, this measure is rarely used today, although the concept itself is evaluative in nature, does not apply to rehabilitating grounds, allows you to bring the matter to its logical conclusion and eliminates the problem of execution of punishment. Oral punishment is issued by issuing a decision to terminate proceedings in a case of an administrative offense (see: Art. 29.9 of the Code of Administrative Offenses of the Russian Federation).
The judge considering the case of an administrative offense has the right, in the absence of a dispute on compensation for property damage, simultaneously with the imposition of an administrative penalty, to decide the issue of compensation for property damage. Disputes on compensation for property (moral) damage are resolved by the court in the manner civil litigation(Article 4.7 of the Code of Administrative Offenses of the Russian Federation).
The stage of consideration of a case on an administrative offense ends with the issuance of an appropriate law enforcement decision and the delivery (delivery to the address) of a copy of the decision on the case of an administrative offense to the person (legal representative of the person) in respect of whom it was issued, as well as to the victim at his request (Article 29.11 of the Code of Administrative Offenses of the Russian Federation ). Accurate fixation of the moment of the end of this stage is of great procedural importance, since it is the initial condition for the beginning of subsequent stages.
Stage of revision of judgments and decisions
on cases of administrative offenses
The current legislation simultaneously provides for a number of ways to restore the rights of a citizen (legal entity) illegally brought to administrative responsibility: administrative, judicial appeal procedure, lawsuit procedure, etc. This issue will focus on one of the special administrative appeal procedures.
The subject of the complaint is the decision on the case of an administrative offense, as well as the ruling on the refusal to initiate proceedings on an administrative offense (Article 30.1 of the Code of Administrative Offenses of the Russian Federation).
Subjects with the right to file a complaint are specified in Art. 25.1-25.5 of the Code of Administrative Offenses of the Russian Federation. Officials of a law enforcement agency who consider the decision made illegal are not entitled to use this procedure. In this case, such methods of influence are possible as initiating a protest by the prosecutor, the general procedure for administrative appeal (for example, the management of the police department with a complaint about the actions of the official who made the appealed decision to his leadership).
Addressees of the complaint are specified in Art. 30.1 of the Code of Administrative Offenses of the Russian Federation. The law establishes the possibility of: a) choosing between filing a complaint with a court and an administrative body, b) simultaneously filing a complaint with a higher body (an official) and a court, c) appealing court decisions, d) repeatedly appealing a decision on a complaint.
The procedure for filing a complaint is established by Art. 30.2 of the Code of Administrative Offenses of the Russian Federation. According to part 5 of Art. 30.2 of the Code of Administrative Offenses of the Russian Federation, a complaint against a decision in a case on an administrative offense is not subject to state duty. Filing a complaint does not suspend the execution of the punishment, since the latter is possible only after the entry into force of the decision.
The term for appeal is ten days from the date of delivery or receipt of a copy of the decision (decree-receipt). If the specified period is missed, the latter may be restored by a judge or an official authorized to consider the complaint at the request of the person filing the complaint (Article 30.3 of the Code of Administrative Offenses of the Russian Federation). Complaints against decisions in cases of administrative offenses provided for in Articles 5.1-5.25, 5.45-5.52 of the Code of Administrative Offenses of the Russian Federation may be filed within five days from the date of delivery or receipt of copies of the decisions.
The term for consideration of the complaint is ten days from the date of its receipt with all the materials of the case to the court, body, official authorized to consider the complaint; if the offender is serving an administrative arrest - within 24 hours (Article 30.5 of the Code of Administrative Offenses of the Russian Federation); complaints against decisions on cases of administrative offenses provided for in Articles 5.1-5.25, 5.45-5.52 of the Code of Administrative Offenses of the Russian Federation are subject to consideration within five days from the date of their receipt with all materials by the court competent to consider complaints.
The subject considering the complaint has the right to cancel, change or leave the previously adopted resolution unchanged (the types of decisions are regulated by Article 30.7 of the Code of Administrative Offenses of the Russian Federation).
If necessary, a ruling on an administrative offense case that has not entered into force may be protested by the prosecutor in the manner and within the time limits established by Articles 30.1-30.3 of the Code of Administrative Offenses of the Russian Federation. Decrees that have entered into legal force may be protested by the prosecutor of a constituent entity of the Russian Federation, his deputies, the Prosecutor General of the Russian Federation and his deputies.
The considered stage is optional (may not be present). If present, the stage usually precedes the execution of the punishment. However, in reality, the appeal against the ruling on the refusal to initiate proceedings on an administrative offense precedes the stage of consideration of the case; the protest of the prosecutor may appear even after the execution of the punishment (see: part 2 of article 30.11 of the Code of Administrative Offenses of the Russian Federation).
Based on the results of the consideration of the complaint, a decision is made containing the information provided for in Part 1 of Art. 29.10 Administrative Code of the Russian Federation. This decision can also be appealed in the manner and terms established by Articles 30.2-30.8 of the Code of Administrative Offenses of the Russian Federation.
The decision on the complaint against the decision shall be announced immediately after its issuance; a copy of the decision is handed over (distributed) in accordance with Art. 30.8 of the Code of Administrative Offenses of the Russian Federation.
Stage of execution of the judgment in the case
about an administrative offense
The execution of the decision begins from the moment it enters into force. As soon as this happens, the presumption of innocence is considered refuted and the presumption of the legality of the legal act begins to fully operate, according to which the decision in the case of an administrative offense is recognized as lawful, until otherwise established by the decision of the competent subject.
According to Art. 31.1 of the Code of Administrative Offenses of the Russian Federation, a decision in a case on an administrative offense enters into force:
1) after the expiration of the period established for appealing against the decision on the case of an administrative offense, if the said decision has not been appealed or protested;
2) after the expiration of the period established for appealing against a decision on a complaint, protest, if the said decision has not been appealed or protested, except in cases where the decision annuls the issued decision;
3) immediately after the issuance of a decision not subject to appeal on a complaint, protest, except in cases where the decision cancels the decision.
The Code of Administrative Offenses of the Russian Federation does not indicate which decision on a complaint is not subject to appeal. The current legislation does not establish restrictions on filing a complaint against rulings and decisions with the Supreme Arbitration and Supreme Courts of the Russian Federation.
The rule fixed by the Code of Administrative Offenses of the Russian Federation that the decision on the case begins to be executed after it enters into force is not without exceptions. So, as a general rule, administrative arrest, a fine on the spot, a warning are executed immediately after the issuance of the relevant decisions.
The competence of the subject that issued the decision, in the presence of circumstances due to which the execution of the decision on administrative arrest, deprivation of a special right or an administrative fine (except for cases of collection of a fine on the spot) is impossible within the established time limits, a deferment of execution for a period of up to one month has been introduced. Taking into account the financial situation of the person brought to administrative responsibility, the payment of the fine may be spread over a period of up to three months. Such decisions (as well as decisions to suspend the execution of a decision on the imposition of an administrative penalty; on the recovery of an administrative fine imposed on a minor, his parents) are taken in the form of appropriate rulings within three days from the moment the grounds for resolving the relevant issue arise.
According to Art. 31.9 of the Code of Administrative Offenses of the Russian Federation, a decision on the imposition of an administrative penalty must be enforced within a year from the date of its entry into force. In addition, it provides for the possibility of interrupting the flow of the specified statute of limitations for an indefinite period if a person brought to administrative responsibility evades punishment (Article 31.9 of the Code of Administrative Offenses of the Russian Federation). However, this possibility is not provided properly in the normative relation. So, in case of refusal to voluntarily pay an administrative fine, its amount is collected by force in accordance with the Federal Law of July 21, 1997 No. ЗЖ 119-ФЗ “On Enforcement Proceedings”. Necessary changes this law has not yet undergone. As a result, decisions to impose administrative penalties, as before, can be accepted for execution by bailiffs only within three months from the date of their issuance.
Internal Affairs Departments are directly involved in the execution of such types of administrative penalties as administrative arrest, warning, fine (part 4 of article 32.2 of the Code of Administrative Offenses of the Russian Federation), requisitioning and confiscation of firearms and ammunition that were the instrument or direct object of an administrative offense (art. 32.4 of the Administrative Code of the Russian Federation), deprivation of the special right to drive a vehicle, with the exception of a tractor, self-propelled machine and other types of equipment (Article 32.5), expulsion of foreign citizens and stateless persons from the Russian Federation (Article 32.9 of the Administrative Code of the Russian Federation).
Administrative punishments are executed, firstly, by the officials who appointed them (for example, announcement of a warning), secondly, by inspectors of departments (departments, groups) for the implementation of administrative legislation, thirdly, by special receivers for the detention of persons arrested in administrative procedure, and where there are none - temporary detention facilities for suspects and accused of the internal affairs bodies; employees of divisions of licensing and permitting work and control over private detective and security activities, district police officers, etc.
The most common type of administrative punishment, in the implementation of which police officers take part, is an administrative fine, the evasion of which, unfortunately, has become a traditional problem. In this regard, the procedure for the execution of this punishment has undergone significant changes. In accordance with Part 1 of Art. 32.2 of the Code of Administrative Offenses of the Russian Federation, an administrative fine must be paid by a person brought to administrative responsibility no later than thirty days from the date the decision on the imposition of an administrative fine enters into force or from the date of expiration of the deferral period or the installment period. In this case, the person brought to administrative responsibility is obliged to send a copy of the document certifying the payment of the administrative fine to the entity that issued the decision. With absence this document, the body, the official who issued the decision, after thirty days from the date the decision comes into force, send the relevant materials to the bailiff to recover the amount of the administrative fine in the manner prescribed by federal law. In addition, a decision is made to bring the person who has not paid the administrative fine to administrative liability in accordance with part 1 of Article 20.25, according to which failure to pay the administrative fine within the established time limits entails the imposition of an administrative fine in the amount of two times the amount of the unpaid administrative fine or administrative arrest for a period up to fifteen days.
The end of the stage of execution of a decision in a case of an administrative offense is associated with a specific type of administrative punishment (for example, the date of payment of a fine, the expiration of an administrative arrest, deprivation of a special right, etc.). The exact definition of this date is also important, since it is from it that the period during which a person brought to administrative responsibility is considered to be subject to administrative punishment begins (Article 4.6 of the Code of Administrative Offenses of the Russian Federation).
Of all the subjects of administrative jurisdiction, the internal affairs bodies are the most polyfunctional. The involvement of the Department of Internal Affairs in the sphere of administrative jurisdiction is comprehensive, as it is associated with almost all stages of the fight against administrative offenses: from the prevention of administrative offenses to the execution of decisions on the imposition of administrative penalties.
The implementation of proceedings on cases of administrative offenses under jurisdiction is one of the most important duties of the police (clause 7, article 10 of the Law on Police) and the internal affairs bodies as a whole. At the same time, it is important to note that the legislation does not impose on the police department the task of disclosing all administrative offenses, since this is impossible in modern conditions.
In the structure of the IAB there are no subdivisions with exclusive competence to carry out proceedings on cases of administrative offenses. Employees of a wide variety of services and departments take part in the latter. At the same time, the subjects of production are not the bodies themselves (services, divisions), but their officials.
At the same time, the administrative and jurisdictional activities of the Department of Internal Affairs are characterized by the presence of intradepartmental specialization. In particular, for example, materials relating to minors are usually prepared by staff of juvenile affairs units; in the field of entrepreneurship - by employees of departments for combating offenses in the field of the consumer market, district police officers, detectives of departments for combating economic crimes; for violations of passport and registration rules – by employees of the Federal Migration Service, district police officers, etc. delivered and detained.
Control over the activities of the police within the powers determined by the legislation of the Russian Federation is carried out by the President of the Russian Federation, Federal Assembly, the Government of the Russian Federation and the legislative (representative) and executive authorities of the constituent entities of the Russian Federation. However, while the bodies state power not have the right to interfere in procedural actions, operational-investigative activities and proceedings in cases of administrative offenses.
The procedure for proceedings in cases of administrative offenses is referred to the jurisdiction of the Russian Federation, that is, it is carried out only on the basis of the norms of the Code of Administrative Offenses of the Russian Federation.
1) The language in which proceedings are conducted in cases of administrative offenses ( Art. 24.2).
Proceedings on cases of administrative offenses must be carried out in the state language of the Russian Federation. As such, in accordance with Part 1 of Art. 68 of the Constitution of the Russian Federation is the Russian language.
In the republics that are part of the Russian Federation, production can be conducted in their state languages. This is due to Part 2 of Art. 68 of the Constitution of the Russian Federation, which determines that the republics have the right to establish their own state languages. In state authorities, local governments, public institutions republics, they are used along with the state language of the Russian Federation.
The Code of Administrative Offenses provides for a number of guarantees for persons participating in the proceedings and who do not speak the language in which it is conducted.
One of them is the right to speak in one's native language. According to Art. 26 of the Constitution of the Russian Federation, everyone has the right to use their native language. A person who does not speak the language should be provided with a real right to speak and give explanations, file petitions and challenges, and bring complaints in his native language. In addition, it can perform in any other language that it knows. At the same time, language proficiency, first of all, implies the ability to speak freely in this language.
Another guarantee is to ensure the right to use the services of an interpreter. It means that:
A person who does not speak the language should be provided not only with an oral translation of all case materials, but also written translation documents to be handed over to the participants in the proceedings;
The translator must participate throughout the entire production, and not only at its individual stages and stages;
Translation should be carried out by a person who not only knows the relevant languages or has the skills of sign language translation, but is also not interested in the outcome of the case.
Violation of statutory procedural guarantees protection of the rights of persons who do not speak the language in which the proceedings are being conducted, may be the basis for appealing against the decision adopted in the case of an administrative offense.
The language in which the proceedings are conducted should not be understood only as the language in which the case is to be considered. Without any doubt, for the initial stages of proceedings (initiation of a case, administrative investigation), the issue of language is also very significant.
2) Open consideration of cases on administrative offenses ( Art. 24.3).
Cases of administrative offenses are subject to open consideration. This procedure contributes to the implementation of public control over the proper performance of duties and compliance with the law by judges, bodies and officials conducting proceedings on cases of administrative offenses, as well as other persons participating in the proceedings. Openness implies the mandatory disclosure of all decisions taken both as a result of the consideration of the case and in the process of its consideration.
An open consideration of a case on administrative offenses means that it is carried out publicly. Citizens who have shown interest in the case have the right to be freely present during its consideration, as well as to cover the progress and results of the case in the media.
It should be noted that the Code of Administrative Offenses provides for a number of circumstances when a case on an administrative offense can be considered behind closed doors. Moreover, the legislator lists not the categories of cases, but only the reasons for which a decision is made to consider a particular case in private. It's about the need:
Protection of state, military, commercial or other secrets protected by law;
Ensuring the safety of persons participating in the proceedings on an administrative offense, their family members, their relatives;
Protection of the honor and dignity of persons participating in the proceedings on an administrative offense, members of their families, their relatives.
The decision on closed consideration of the case may be taken only by the judge, body or official in whose proceedings the case of an administrative offense is located. The decision is formalized by issuing a reasoned ruling.
3) Circumstances excluding proceedings in a case on an administrative offense (Art. 24.5).
The Code of Administrative Offenses provides for a number of Circumstances excluding proceedings in a case on an administrative offense.
They are divided into two groups.first group circumstances are those that exclude administrative liability. The legislator attributed the absence of an event or composition of an administrative offense to them, as well as the actions of a person in a state of emergency.
No event of an administrative offense means that there is no data confirming the very fact of a socially harmful, unlawful, guilty, punishable act, or they exist, but are recognized by the judge, body or official in whose proceedings the case of an administrative offense is located, untenable.
Lack of composition An administrative offense is unconditionally recognized as a basis for dismissing a case in cases where the very fact of an act committed by a specific person is established, but this act is not an offense due to the fact that:
The act is not provided for by the legislation on administrative offenses;
The act is provided for by law as an offense, but at the same time there are circumstances that deprive this act of a socially harmful and illegal nature;
The act is provided for by law and took place, but there is no sign of guilt (intent, negligence) of the person who committed it;
The person who committed the act, at the time of its commission, did not reach the age of 16 or was in a state of insanity.
Actions of a person in a state of emergency constitute a circumstance excluding his administrative responsibility. In a state of emergency, harm is done in order to prevent damage to other, more significant protected social relations. In this case, a conflict of interests arises, and causing harm to one of them is preferable. For example, to protect a person from an attacking animal, it is sometimes necessary to locality fire a weapon, which may constitute an offense under Article 20.13 of the Code of Administrative Offenses (shooting a weapon in places not designated for this). Therefore, actions committed in conditions of extreme necessity are performed socially. useful feature and therefore cannot be considered illegal.
second group Circumstances excluding proceedings in a case of an administrative offense are those in which there is a fact of an unlawful act, however, the person who committed it, for a number of reasons, is exempted from administrative responsibility.
Such circumstances may be:
- issuing an act of amnesty, if such an act eliminates the application of an administrative penalty;
– repeal of the law establishing administrative responsibility;
- the expiration of the limitation period for bringing to administrative responsibility;
- the presence on the same fact of committing unlawful actions (inaction) by a person in respect of whom proceedings are being conducted on an administrative offense, a decision to impose an administrative penalty, or a decision to terminate the proceedings on an administrative offense, or a decision to initiate a criminal case ;
The death of an individual in respect of whom proceedings are being conducted in a case of an administrative offense.
In conclusion, it can be noted that the proceedings on cases of administrative offenses are carried out according to certain rules, principles, the main ones are:
§ principle legitimacy(application of the norms of substantive law in all cases in strict accordance with the procedure prescribed by the norms of administrative procedural law);
§ objectivity(principle of material truth) (comprehensive, complete and objective clarification of specific facts and circumstances of the case);
§ principle equality of citizens before the law and authority, considering the case(all citizens are equal before the law and the body resolving the case, regardless of their origin, social status, race and nationality, gender, education, language, attitude to religion, type and nature of occupation, place of residence and other circumstances);
§ production publicity(the case of an administrative offense is considered openly);
§ responsibility for violation of the rules of proceedings and for the adopted act (officials guilty of violating the rules of production or making an illegal decision on the case bear legal responsibility, and the decision itself can be canceled or changed in the manner prescribed by law).
§ presumption of innocence(a person brought to administrative responsibility is considered innocent until otherwise proven and recorded in the manner prescribed by law, the burden of proving the guilt of a person is assigned to the jurisdictional body).
conclusions
1. Proceedings on cases of administrative offenses are administrative-tort, i.e. it finds an appropriate procedural expression of the negative reaction of the state and society to illegal acts committed in the sphere of public administration (administrative offences).
2. The objectives of the proceedings are clearly defined in the Code of Administrative Offenses of the Russian Federation, the main one being the provision of a comprehensive, complete, objective and timely consideration by authorized judges, bodies and officials of each case of an administrative offense in order to resolve it in accordance with the law.
Question 2. Participants in proceedings on cases of administrative offenses
Participants in production can be conditionally divided into three categories:
a) persons whose interests are affected by proceedings in a case of an administrative offense - a person in respect of whom proceedings are being conducted in a case of an administrative offense (Article 25.1 of the Code of Administrative Offenses), and a victim (Article 25.2 of the Code of Administrative Offenses);
b) persons protecting or representing the interests of other persons - legal representatives of an individual (Article 25.3 of the Administrative Code), legal representatives of a legal entity (Article 25.4 of the Administrative Code), defender and representative (Article 25.5 of the Administrative Code);
c) persons performing procedural functions - a witness (Art. 25.6 of the Administrative Code), witness (Art. 25.7 of the Administrative Code), specialist (Art. 25.8 of the Administrative Code), expert (Art. 25.9 of the Administrative Code), translator (Art. 25.10 of the Administrative Code), prosecutor (Article 25.11 of the Code of Administrative Offenses).
The Code of Administrative Offenses does not contain a normative definition of the concept of “a person against whom proceedings are being conducted on an administrative offense case”. However, within the meaning of the commented article, such a person should be recognized as a person against whom an administrative offense case has been initiated in accordance with the procedure established by Chapter 28 of the Code. Based on the General Part of the Code of Administrative Offenses, they may be;
1) an individual - a citizen of the Russian Federation, a foreign citizen and a stateless person who has reached the age of 16 and is recognized as sane (Articles 2.3, 2.6, 2.8 of the Code of Administrative Offenses);
2) official - a person who permanently, temporarily or in accordance with special powers exercising the functions of a representative of the authorities, i.e. endowed in the manner prescribed by law with administrative powers in relation to persons who are not in official dependence on him, as well as a person who performs organizational, administrative or administrative economic functions in state bodies, local governments, state and municipal organizations, as well as in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation (Article 2.4 of the Code of Administrative Offenses);
3) a soldier and another person subject to disciplinary regulations (Article 2.5 of the Code of Administrative Offenses);
4) legal entity - an organization formed in accordance with Russian legislation, and a foreign organization established in accordance with the legislation of a foreign state (Articles 2.6, 2.9 of the Code of Administrative Offenses).
The person in respect of whom proceedings are being conducted in a case of an administrative offense, has the right to get acquainted with all the materials of the case, give explanations, present evidence, file petitions and challenges, use the legal assistance of a defense counsel, as well as other procedural rights in accordance with this Code.
The case on an administrative offense is considered with the participation of the person in respect of whom the proceedings on the case on an administrative offense are being conducted. In the absence of the said person, the case may be considered only in cases where there is evidence that the person was duly notified of the place and time of the consideration of the case, and if the person did not file a request to postpone the consideration of the case, or if such a request was left unsatisfied.
When considering a case on an administrative offense entailing administrative arrest or administrative expulsion from the Russian Federation foreign citizen or a stateless person, the presence of the person in respect of whom the proceedings are being conducted is mandatory.
Victims is an individual or a legal entity who has suffered physical, property or moral harm by an administrative offense.
The victim has the right to get acquainted with all the materials of the case of an administrative offense, give explanations, present evidence, file motions and challenges, use the legal assistance of a representative, appeal against the decision in this case, enjoy other procedural rights in accordance with this Code.
The victim may be questioned in accordance with Article 25.6 of this Code.
individual in relation to whom proceedings are being conducted in a case of an administrative offense, or the victim, who are minors or who, due to their physical or mental condition, are deprived of the opportunity to independently exercise their rights, exercise them legal representatives.
The legal representatives of an individual are his parents, adoptive parents, guardians or trustees.
Protection of rights and legitimate interests legal entity in respect of which proceedings are being conducted on a case of an administrative offense, or a legal entity that is a victim, carry it out legal representatives.
The legal representatives of a legal entity in accordance with this Code are its head, as well as another person recognized in accordance with the law or the constituent documents of the body of the legal entity. The powers of the legal representative of a legal entity are confirmed by documents certifying his official position.
In order to provide legal assistance to a person in respect of whom proceedings are being conducted on an administrative offense case, defender, and to provide legal assistance to the victim - representative.
A lawyer or other person is allowed to participate in the proceedings on an administrative offense as a defense counsel or representative.
The defense counsel and the representative are allowed to participate in the proceedings on the case of an administrative offense from the moment of drawing up a protocol on an administrative offense.
In the case of administrative detention of an individual in connection with an administrative offense, the defense counsel is allowed to participate in the proceedings on an administrative offense from the moment of administrative detention.
As witness in the case of an administrative offense, a person may be summoned who may be aware of the circumstances of the case to be established.
The witness is obliged to appear when summoned by the judge, body, official in charge of the case of an administrative offense, and give truthful testimony: tell everything known to him in the case, answer the questions posed and certify with his signature in the relevant protocol the correctness of entering his testimony.
The witness has the right:
1) not testify against himself, his spouse and close relatives;
2) testify in their native language or in the language they speak;
3) use the free assistance of an interpreter;
4) make comments on the correctness of entering his testimony in the protocol.
As understood any adult who is not interested in the outcome of the case may be involved. The number of witnesses must be at least two. The witness certifies in the protocol with his signature the fact of the commission of procedural actions in his presence, their content and results. If necessary, the witness may be questioned as a witness.
As specialist any adult who is not interested in the outcome of the case and has the knowledge necessary to assist in the discovery, consolidation and seizure of evidence, as well as in the use of technical means, may be involved in the proceedings on an administrative offense.
The specialist must:
2) participate in carrying out actions that require special knowledge, in order to detect, secure and seize evidence, give explanations about the actions he performs;
3) certify with his signature the fact of the said actions, their content and results.
As expert any adult who is not interested in the outcome of the case and who has special knowledge in science, technology, art or craft, sufficient to conduct an examination and give an expert opinion, may be involved.
The expert must:
1) appear when summoned by a judge, body, official, who are in charge of the case of an administrative offense;
2) to give an objective opinion on the questions put to him, as well as the required explanations in connection with the content of the opinion.
As translator any adult person who is not interested in the outcome of the case, who knows the languages or skills of sign language translation (understands the signs of the dumb or deaf), necessary for translation or sign language interpretation in the proceedings on an administrative offense, may be involved.
The interpreter is obliged to appear when summoned by the judge, body, official in charge of the administrative offense case, complete the translation assigned to him completely and accurately, and certify the correctness of the translation with his signature.
prosecutor within the scope of his authority, he has the right to:
1) initiate proceedings on a case on an administrative offense;
2) participate in the consideration of a case on an administrative offence, file petitions, give opinions on issues arising during the consideration of the case;
3) file a protest against a decision in a case concerning an administrative offense, regardless of participation in the case, and also perform other actions provided for by federal law.
protector and representative not allowed persons if they are employees of state bodies exercising supervision and control over compliance with the rules, the violation of which was the basis for initiating this case, or if they previously acted as other participants in the proceedings in this case.
To participate in the proceedings on the case of an administrative offense as specialist, expert and translator not allowed persons, if they are family relations with the person brought to administrative responsibility, the victim, their legal representatives, defense counsel, representative, prosecutor, judge, member of the collegiate body or official in charge of this case, or if they previously acted as other participants in the proceedings in this case, as well as if there are grounds to consider these persons personally, directly or indirectly, interested in the outcome of this case.
The victim, witness, specialist, expert, translator and witness shall be compensated, in accordance with the procedure established by the Government of the Russian Federation, for the expenses incurred by them in connection with their appearance in court, body, official, in whose proceedings the case of an administrative offense is being carried out.
conclusions
1. The circle of subjects of participants in proceedings in a case on an administrative offense is diverse, but they can be divided into three groups: 1) persons whose interests are affected in the proceedings; 2) persons representing the interests of other persons; 3) persons exercising procedural functions.
2. The scope of powers in the proceedings depends on the status of the participant in the proceedings. Persons whose interests are affected in proceedings on an administrative offense have the greatest scope of rights.
Question 3. Stages and stages of proceedings in cases of administrative offenses
The stages in the proceedings on cases of administrative offenses are its main links, characterizing the logic and sequence of actions in the consideration and resolution of cases. Each stage in production is filled with procedural actions (stages).
The stage is understood as relatively independent part production, which has its own unique tasks. Stages differ from each other and the circle of participants in production. At each stage, different procedural actions are performed. The solution of the tasks of each stage is drawn up by a special procedural document, which, as it were, sums up the activity. After the adoption of such an act, a new stage begins.
First stage proceedings in a case of an administrative offense is traditionally considered administrative investigation.
Administrative investigation consists of the following stages:
First stage . Initiation of a case.
The initiation of a case on an administrative offense includes procedural activities to obtain information about an administrative offense, its execution and registration. At this stage, a number of questions are resolved: whether a report of an administrative offense is a reason for initiating a case; whether the source of information contains information about the event of an administrative offense, whether there are circumstances excluding the proceedings; it is specified under which article this administrative offense is qualified, whether there is a need for an administrative investigation, whether the materials of the case are subject to transfer according to jurisdiction or jurisdiction, etc.
Under the reasons for initiating proceedings in accordance with Part.1 Article. 28.1 of the Code of Administrative Offenses of the Russian Federation should be understood as all sources from which the authorized bodies of the state or officials receive information about an administrative offense committed, obliging them to make a decision to proceed with the proceedings on an administrative offense. These sources include:
1) direct detection by officials authorized to draw up protocols on administrative offenses of sufficient data indicating the presence of an event of an administrative offense;
2) materials received from law enforcement agencies, as well as from other state bodies, local self-government bodies, from public associations, containing data indicating the presence of an event of an administrative offense;
3) messages and statements of individuals and legal entities, as well as messages in the media containing data indicating the existence of an event of an administrative offense, with the exception of some administrative offenses.
The basis for initiating a case on an administrative offense is the availability of sufficient data indicating the presence of an event of an administrative offense.
An administrative offense case may be initiated by an official authorized to draw up a protocol on an administrative offense only if there is at least one of the reasons and one of the grounds. Moreover, it is considered excited from the moment:
1) drawing up the first protocol on the application of measures to ensure the proceedings in the case of an administrative offense, provided for in Article 27.1 of the Code of Administrative Offenses;
2) drawing up a protocol on an administrative offense or issuing a decision by the prosecutor to initiate a case on an administrative offense;
3) issuing a ruling on initiating a case on an administrative offense if it is necessary to conduct an administrative investigation, provided for in Article 28.7 of the Code of Administrative Offenses.
Second phase. Establishing the facts of the case.
In the course of it, explanations are obtained, an expert study is appointed, and measures are taken to ensure the proceedings in a case of administrative offenses: delivery, detention, seizure of things and documents; medical examination for intoxication, etc. These activities are formalized, as a rule, by the relevant protocols.
Third stage . Procedural registration of the results of the investigation. Within the framework of this stage, a protocol on an administrative offense is drawn up (Article 28.2), which contains a "charge formula". A copy of the protocol on an administrative offense after it is drawn up is handed against a signature to an individual or legal representative, as well as to the victim.
Fourth stage . Sending materials for consideration according to jurisdiction (most often to the head of the internal affairs body (head of the public security police), to the court.
An administrative investigation is conducted at the place where an administrative offense was committed or discovered.
Term conducting an administrative investigation may not exceed one month from the moment of initiation of an administrative case. In exceptional cases, the specified period, at the written request of the official who is in charge of the case, may be extended by a higher official for a period of not more than one month, and in cases of violation of customs rules by the head of a higher customs authority for a period of up to six months.
At the end of the administrative investigation, a protocol on an administrative offense is drawn up or a decision is made to terminate the case on an administrative offense.
Second stage production is the stage of consideration of the case.
It acts as the main stage, since in the course of its implementation an act (decree) is adopted on the recognition of a citizen or legal entity as guilty and administrative penalties are imposed.
The consideration of a case on administrative offenses as an independent stage of proceedings is a set of procedural actions aimed at verifying and legally assessing the actual circumstances of the case and making a decision on it.
Stages of the case:
First stage . Preparation of the case for consideration (Article 29.1 of the Code of Administrative Offenses).
In the process of preparing a case on an administrative offense for consideration, a judge, body, official studies it, while resolving the question of whether the consideration of this case falls within his competence. If the judge, body, official establishes that the received case is within his competence, then the case is accepted for consideration. Otherwise, the case materials are sent according to jurisdiction. In cases where there is dual jurisdiction, the case is considered by the body (official) to which it was received.
In addition, as part of this stage, the quality of the protocol, other materials of the case, the sufficiency of the available materials for their consideration, as well as the presence of motions and challenges are checked.
Second phase . Analysis of the collected materials, circumstances of the case, evidence.
Third stage . Issuance of a decision on the case (Articles 29.9 - 29.10 of the Code of Administrative Offenses).
One of the following rulings may be issued in a case concerning an administrative offense:
On the imposition of an administrative penalty;
On termination of the case by production;
or definitions:
On the transfer of the case to a judge, to a body, to an official authorized to impose administrative penalties of a different type or size, or to apply other measures of influence;
On the transfer of the case for consideration according to jurisdiction, if it is found that the consideration of the case does not fall within the competence of the judge, body, official who considered it.
Fourth stage . Announcement of the ruling on the case.
The decision on the case of an administrative offense shall be announced immediately after the completion of the consideration of the case. A copy of the decision on the case of an administrative offense is handed against receipt to the individual, or the legal representative of the individual, or the legal representative of the legal entity in respect of which it was issued, as well as to the victim or sent to the indicated persons within three days from the date of issuance of the said decision.