Descriptive part of the protocol on an administrative offense. Protocol on administrative violation. Samples. Appeal. Video: how to submit a petition when drawing up an administrative traffic police protocol

In this article, we will look at the procedure for drawing up an administrative protocol, or, to be more precise, the question of whether it is legal for a traffic police officer to draw up a protocol and then issue a resolution in the case of administrative offense?

Such situations are far from rare, especially in small towns and populated areas. Typically, the procedure for drawing up an administrative protocol is often violated in practice.

To understand this issue, it is necessary to analyze the current Code of Administrative Offenses of the Russian Federation. We are primarily interested in the rules about drawing up a protocol by a traffic police officer.

Thus, according to Part 1 of Article 28.3 of the Code of Administrative Offenses of the Russian Federation, protocols on administrative offenses are drawn up by officials of the bodies authorized to consider cases of administrative offenses in accordance with Chapter 23 of the Code of Administrative Offenses of the Russian Federation within the competence of the relevant body.

However, based on the meaning of Articles 28.8, 29.1 of the Code of Administrative Offenses of the Russian Federation, the official who drew up the protocol on an administrative offense does not have the right to consider the case of this administrative offense on the merits. This is one of the features of the current Code of Administrative Offenses of the Russian Federation, characterizing the procedure for drawing up an administrative protocol.

According to Art. 28.8 of the Code of Administrative Offenses of the Russian Federation, a protocol on an administrative offense must be sent to a competent official for consideration of the case, which automatically implies the impossibility of considering the protocol by the person who drew up the protocol on an administrative offense.

In accordance with Art. 29.1 of the Code of Administrative Offenses of the Russian Federation, an official considering a case of an administrative offense is obliged to check whether the protocol is drawn up correctly, whether other materials are correctly drawn up, and to establish whether the rights of the person brought to administrative responsibility are respected.

In addition, based on the content of paragraph 10 of the resolution of the Plenum of the Supreme Court No. 5 of March 24, 2005, “On some issues that arise for the courts when applying the Code of Administrative Offenses of the Russian Federation, the officials who compiled the protocol are not participants in the proceedings in the case of an administrative offense.

Thus, it should be concluded that the traffic police inspector, who initially drew up a protocol on an administrative offense against you, does not have the right to conduct administrative proceedings and make a decision in the case of an administrative offense.

If you plan to use this circumstance as one of the grounds for filing a complaint that the procedure for drawing up an administrative protocol has been violated, then it is recommended to indicate in the complaint that “the consideration of my case by the official who directly compiled the protocol is obviously personally and directly interested in resolution of the case, is, according to Part 2 of Article 29 of the Code of Administrative Offenses of the Russian Federation, a circumstance that excludes the possibility of considering my case.”

You can additionally indicate in the complaint that after drawing up a protocol by a traffic police officer, in accordance with Article 28.8 of the Code of Administrative Offenses of the Russian Federation, the protocol on an administrative offense is sent to the official authorized to consider the case of an administrative offense within 24 hours from the moment the protocol is drawn up.

At the same time, the procedure for drawing up an administrative protocol, prescribed in the Code of Administrative Offenses of the Russian Federation, does not provide for sending the protocol to oneself, which would contradict the principles of objectivity and legality of consideration of the case.

According to Article 29.4 of the Code of Administrative Offenses, when preparing for the consideration of a case, in the event of an incorrect preparation of the protocol or incompleteness of the presented materials, the protocol is returned to the official who compiled it. However, the official cannot return the protocol to himself to correct errors and draw up other materials of the case, since this is not provided for by the Code of Administrative Offenses.

Here's a little judicial practice on this issue, confirming my conclusions.

Judge of Khabarovsk regional court Barabash N.Yu., having considered the case on May 16, 2003 on the complaint against the decision on an administrative offense, canceled this decision, because “the participation of the same leading administrative-jurisdictional body at the stage of initiating a case of an administrative offense and its consideration is a significant violation of the procedural requirements of the Code of Administrative Offenses of the Russian Federation.”

Judge of the Novgorod City Court of the Novgorod Region T.A. Arzumanova, canceled on May 6, 2004 the decision to impose an administrative penalty on S.A. Kupriyanov, stating that “in violation of the principle of objective consideration of the case, the protocol was drawn up, the case was considered and a decision was made by one and by the same official, which is also a significant violation of the procedural procedure for considering an administrative case provided for by law.”

Well, now, after reading this article, you know a lot more information about the procedure for drawing up an administrative protocol.

The protocol on an administrative offense is a procedural document that serves as the basis for initiating proceedings in a case of an administrative offense, since in this document the fact of committing the relevant violation is recorded.

In accordance with the requirements of Part 2 of Art. 28. 2 of the Code of Administrative Offenses of the Russian Federation (hereinafter referred to as the Code), the protocol on an administrative offense shall indicate the following information:

Date and place of its compilation;

Position, surname and initials of the person who compiled the protocol;

Information about the person against whom a case of administrative offense has been initiated;

Last names, first names, patronymics, residential addresses of witnesses and victims, if there are witnesses and victims;

Place, time of commission and event of the administrative offense;

Article of the Code or law of the subject Russian Federation, providing for administrative liability for this administrative offense;

Explanation of the individual or legal representative legal entity, in respect of which the case was initiated;

Other information necessary to resolve the case.

A protocol is drawn up in almost all cases of offenses. The Code provides exceptions to this general rule. Firstly, cases of certain categories of administrative offenses are initiated by the prosecutor, who makes appropriate decisions (Article 28.4 of the Code). Secondly, there are cases when administrative punishment V in the form of a warning or a fine is imposed at the place where the offense was committed, where the procedural registration of the relevant actions takes place, which do not require drawing up a protocol (Article 28.6 of the Code). Thirdly. Federal law dated July 24, 2007 N 210 - Federal Law in Art. 28. 6 of the Code introduced part 3, which establishes that a protocol is not drawn up when an offense is detected in the area traffic(Chapter 12 of the Code), recorded using special technical means or means of photography and filming, video recording, operating in automatic mode.

The protocol contains information about the person against whom the case has been initiated. In relation to to an individual in addition to his last name, first name and patronymic, it is necessary to record the date of his birth, since administrative responsibility begins at the age of 16, and measures of influence provided for by federal legislation on the protection of the rights of minors are applied to persons aged 16 to 18 years.

The surnames are indicated in the administrative violation protocol. names, patronymics, addresses of victims and witnesses, if any. It is important to note that the presence of witnesses does not prerequisite when drawing up the protocol.

A detailed description of the event of the committed offense is necessary for its correct qualification, i.e., determining the article of the Special Part of the Code or the article of the law of the constituent entity of the Russian Federation, which provides for administrative liability for such actions (inaction).

The protocol indicates an article of the Special Part of the Code or an article of the law of a constituent entity of the Russian Federation establishing responsibility for the violation committed.

The protocol also records other information necessary to resolve the case. This applies, for example, to the description of the damage caused, which is one of the circumstances to be clarified in the case.

An important guarantee of the completeness and reliability of the information contained in the protocol on an administrative offense is that the individual and the legal representative of the legal entity against whom the case has been initiated must be given the opportunity to familiarize themselves with the protocol. In this case, these persons have the right to present their explanations and comments on the contents of the protocol, which are then attached to the protocol as case materials.

After drawing up a protocol on an administrative offense, a copy of it is handed over to the individual or the legal representative of the legal entity against whom the case was initiated, as well as to the victim.

The Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2005 N5 “On some issues arising in the courts when applying the Code of the Russian Federation on Administrative Offences” explains which shortcomings of the protocol should be considered significant or insignificant.

Significant shortcomings include the lack of data directly listed in Part 2 of Art. 28. 2 of the Code, as well as the absence of other information depending on its significance for this particular case (for example, data on whether the person against whom the case has been initiated speaks the language in which the proceedings are being conducted).

Minor disadvantages of the protocol include:

Those that can be completed when considering the case on the merits;

Drawing up a protocol in the absence of the person against whom the case was initiated, if he was duly informed of the time and place of drawing up the protocol, but he did not appear at the appointed time and did not notify the reasons for his failure to appear, or these reasons were considered unjustified.

The answer to the question about the timing of drawing up a protocol on administrative violations is found in the legislation of the Russian Federation. More precisely, in article 28.5 administrative code, where it is clearly stated that a protocol on an offense must be drawn up immediately after violations are identified by an official who has the right to draw up this document.

But, as the famous comedian says, life is always more complicated than any rules. Sometimes, in order to draw up an act, you must first find the person (or establish his exact details) who committed the offense or determine the circle of persons involved in the commission of criminal acts and the degree of their guilt. This is necessary to be able to draw up a protocol.

Also in some cases it is necessary conduct an expert study, in order to determine the exact circle of persons and the degree of guilt of each, so legislators decided that the deadline for drawing up the act could be shifted.

But we’ll talk about this later, but first, let’s decide who has the right to draw up a protocol on an administrative violation and what reasons must there be for a resolution to be drawn up.

Reasons and faces

Persons

Faces, entitled to compile protocol on administrative offenses are employees of the following services:

The full list of persons entitled to draw up a protocol is specified in Article 28.3 of the Code of Administrative Offenses of the Russian Federation.

Reasons for drawing up a protocol

Occasion to draw up a protocol about an administrative offense may be:

• Discovery by an official of the fact of committing an administrative offense (for example, a traffic police officer stopped a car that does not have a license plate);
• If an audit or inspection reveals the commission of an administrative offense, then an act is drawn up in connection with this;
• Also, the reason for drawing up a protocol on an administrative offense can be information from citizens (this can be letters, phone calls, but always with information about the applicant), but here you need to take into account that anonymous statements cannot be a reason for drawing up a report on violations, but can be a reason to start an investigation.

Reasons why the preparation of a protocol may be postponed

As stated earlier, situations may vary, so sometimes the preparation of the protocol is postponed to a later date. The reasons that may prompt an official to postpone the deadline for drawing up a protocol on an administrative offense are:

Identification of persons involved in the crime

Sometimes you need to figure out people who is involved in the crime or find out their exact location. And the official cannot draw up a protocol at the scene of the offense. In this case, in accordance with the law, the time limit for drawing up a protocol on an administrative offense can be extended.

That's why, if the official cannot immediately draw up a protocol about an administrative offense, he is given two days to resolve this issue (Article 28.5), during which a protocol on the administrative offense must be drawn up.

Administrative investigation

In accordance with the letter of the law (Article 28.5), if to clarify the circumstances of the case, as well as persons involved in the commission of an administrative offense, or if the official requires more than 2 days to conduct examinations on the case, a decision is made to begin the study.

The investigation should not exceed 1 month. And in cases where officials cannot meet this deadline, the person conducting the investigation must apply for an extension to the higher authorities and only with his approval can continue the investigation. But the period by which the investigation is extended should not exceed 1 month.

After the investigation is completed, a protocol on the administrative offense must be drawn up.

If it is not possible to draw up a protocol on the spot

If you official there is no way to issue a resolution at the scene of the administrative offense, then the persons who committed this action are delivered in accordance with the law (Article 27.2) to the police station where a protocol on the administrative offense is drawn up.

In some cases, it is necessary to find the person who violated the law and bring him in for paperwork.

Also if person who has committed an administrative offense, did not appear to draw up the report (and he was notified of the place and time of drawing up the protocol in the form prescribed by law, i.e., a notice was sent with information about delivery to the addressee) and did not say the reasons for his failure to appear, or his reasons were considered disrespectful by officials, then in accordance According to the law, drawing up a protocol can be carried out without the participation of the person who committed the offense.

Statute of limitations for these offenses

1. A protocol on an administrative crime cannot be issued after two months, if the case has not reached the court, or three months, if the case is being considered by the court;
2. If a violation of the law was committed in the field of road safety and if a protocol was not issued within a year, then after 1 year it cannot be drawn up.

If an official (who, in accordance with the law, is allowed to make such decisions) decides that the case will be considered at the place of residence person who has committed a crime, then the statute of limitations is postponed until the case is received by the court at the person’s place of residence (and the moment the case is received is the very fact of transfer of materials to court records).

Terms of consideration

If more time is needed to more accurately clarify the circumstances of the case or to conduct additional examinations, then the person makes a decision to extend the time frame for consideration of the case, but not more than by 1 month. After expiration given period a decision must be made.

Deadlines for appealing decisions

Term to appeal decisions on administrative offenses is 10 days from the date of receipt of the court decision (or other body that made the decision), and if the end of the period falls on a weekend, then the end of the period is considered to be the working day following the weekend.

The period for consideration of this complaint is no more than 2 months, after which a court decision must be made or other body executive branch. After the resolution enters into legal force, complaints and protests, unfortunately, are not provided for by law.

Deadlines for compilation decisions on administrative offense small (about two months). But if possible, it is better to respect the laws and not postpone drawing up a protocol for the future, so that violators cannot avoid responsibility due to the negligence of law enforcement agencies. And, of course, it’s better not to break the laws at all, then protocols on administrative violations and punishments will be of no use.

But if it so happens that the person still committed an administrative offense, then we must remember that after the expiration of the statute of limitations, which were mentioned earlier, he cannot be charged with committing an administrative offense.

If, however, it so happens that the person who committed the offense is issued a punishment order, then this the decision can be appealed, filing an appeal no later than ten days, after which it will be much more difficult to file a complaint against the decision. Therefore, it is better not to delay this.

Allows us to draw a number of conclusions:

1) about an administrative offense (according to general rule) a protocol is drawn up. The following cases are exceptions:

a) the case of an administrative offense was initiated by the prosecutor (the latter makes a decision within the time limits provided for in Article 28.5, see commentary to Articles 28.4, 28.5);

b) the law allows for the imposition of an administrative penalty without drawing up a protocol (for example, when a warning is given for committing an administrative offense or administrative fine, the size of which does not exceed 100 (in case of violation customs rules- 1000) rubles. In addition, from 01.02.08 (after the amendments made to the Administrative Code Law No. 225 of 02.10.07 came into force), a protocol is not drawn up even in cases of administrative offenses provided for in parts 1 and 3 of Art. 17.14 and Art. 17.15, as well as in the cases specified in Part 3 of Art. 28.6 (see commentary on this to Articles 28.6, 29.10);

2) information listed in Part 2 of Art. 28.2, must be indicated in the protocol on the administrative offense. In the absence of at least one of them, the protocol (as a procedural document) is devalued);

3) other information may be indicated in the protocol:

a) directly provided for by law (for example, on delivery, see commentary to Article 27.2);

b) although not provided for by law, they do not contradict it and contribute to the correct and timely resolution of the case.

2. Applying the rules of parts 3-6 of Art. 28.2, you need to pay attention to the following circumstances:

1) an individual (personally or his representative authorized by a power of attorney, for example, a defender), as well as a legal representative of a legal entity (see commentary to Article 25.4), in respect of whom a case of an administrative offense has been initiated, must be given the opportunity to familiarize themselves with ( in necessary cases - with the help of an interpreter, see the comment on this to Art. 24.2, 25.10) with the protocol on the administrative offense. These persons have the right to submit explanations and comments on the contents of the protocol (they are attached to the protocol if signed by the person who made these comments);

2) the protocol on the administrative offense must also contain a record that all participants in the proceedings have been explained their rights and obligations. The said entry must be certified by the signatures of each participant;

3) the protocol on an administrative offense is signed by the persons specified in Part 5 of Art. 28.2. If an individual, a legal representative of a legal entity, against whom a case of an administrative offense has been initiated, refuses to sign the protocol, the official (who compiled the protocol) makes an entry about this in the protocol and certifies it with his signature;

4) a copy of the protocol on the administrative offense (made and certified by the official who delivered it) is handed over to:

a) an individual (legal representative of a legal entity) against whom a case of administrative offense has been initiated;

b) the victim (see commentary to Article 25.2);

c) if the mentioned persons (at least verbally) asked for such a copy. The fact that a copy of the protocol on the administrative offense was handed over to the mentioned persons is recorded in the protocol on the administrative offense, and the copy itself is handed over to the mentioned persons against receipt;

5) regulations federal bodies executive power on drawing up a protocol on an administrative offense (for example, order of the Federal Archive of February 18, 2002 N 18) are applied insofar as they do not contradict the rules of Art. 28.2, as well as Art. 28.3, 28.5, 28.8, 29.5 (see commentary to them);

6) in case of failure to appear (despite the fact that they have been duly notified) of the person (or his legal representative) in respect of whom proceedings are being conducted for an administrative offense, it is allowed to draw up a protocol in the absence of such a person. In this case, the person (in respect of whom the protocol was drawn up) must be sent (for example, by mail, by courier, etc.) a copy of the protocol within three days (this period begins from the day following the day the protocol was drawn up). It should be borne in mind that Part 4.1 was introduced into Art. 28.2 by Law No. 210 of July 24, 2007 and came into force on August 11, 2007;

7) about the failure of the above-mentioned persons to appear, an entry about this must be made in the protocol (and this provision came into force on 08/11/07).

3. Supreme Court The Russian Federation explained (in paragraph 4, post. No. 5) that:

a) a significant drawback of the protocol is the lack of data directly listed in Part 2 of Art. 28.2, and other information depending on their significance for the given case (for example, there is no information about whether the person against whom the case of an administrative offense has been initiated speaks the language in which the proceedings are being conducted);

b) Those shortcomings of the protocol that can be corrected when considering the case on the merits, as well as violations established in Art. 28.5 and 28.8 deadlines for drawing up the protocol and sending it to the judge;

c) when checking the authority of an official to draw up a protocol, one should take into account the provisions of Art. 28.3, as well as regulations of the relevant executive authorities;

d) when returning the protocol to the judge (based on Part 4 of Article 29.4), it is necessary to make a reasoned decision about this.

In addition, the Supreme Court believes that:

If an administrative suspension of activity can be imposed, then the protocol must indicate the threat of harm or harm caused to protected public legal relations, and how this is confirmed (clause 8 of the Review dated 03.25.09);

The circumstances that served as the basis for sending the driver for a medical examination for intoxication must be indicated in the protocol on sending for a medical examination for intoxication (Part 4 of Article 27.12) and in the protocol on an administrative offense, as relating to the event of an administrative offense (