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Decision on an administrative case

DEFINITION

On the return of materials about an administrative offense

June 24, 2014 words. Rodionovo-Nesvetaiskaya
The magistrate of judicial district No. 7 of the Novoshakhtinsky judicial district of the Rostov region, Ermakov S.N., having examined, in preparation for consideration, the materials of the case on an administrative offense under Art. 12.15 part 4 of the Code of Administrative Offenses in relation to Fedotenko Sergei Vasilievich,<ДАТА2>birth, native<АДРЕС>region, living at the address:<АДРЕС>region,<АДРЕС>district, city<АДРЕС>, pr.<АДРЕС>, 52 sq. 2,

U S T A N O V I L:

The magistrate of judicial district No. 7 of the Novoshakhtinsky judicial district of the Rostov region from the Traffic Police Regiment of the State Traffic Safety Inspectorate of the Main Directorate of the Ministry of Internal Affairs of Russia for the Rostov Region received a protocol on an administrative offense from<ДАТА3>in relation to Fedotenko S.V. about the commission of an administrative offense under Art. 12.15 h. 4 KRFoAP. Having studied this protocol and the materials attached to it, the magistrate considers that they are subject to return the following reasons: Protocols on administrative offenses under Art. 12.15 p.m. 4 Code of Administrative Offenses are drawn up officials internal affairs bodies (police) included in the List of officials authorized to draw up protocols on administrative offenses provided for by the Code of Administrative Offenses. According to Part 2 of Art. 23.3 of the Code of Administrative Offenses, the police have the right to consider such cases of administrative offenses on behalf of internal affairs bodies: heads of territorial departments (departments) of internal affairs and equivalent internal affairs bodies, their deputies, chiefs territorial departments(departments) of police, their deputies; heads of line departments (directorates) of the transport police, their deputies; heads of duty shifts of duty units of linear transport police departments (directorates), heads of linear police departments (points); senior district police commissioners, district police commissioners. At the same time, part 2 of article 23.1 of the Code of Administrative Offenses establishes alternative jurisdiction of cases for judges - the said norm lists the categories of cases of administrative offenses that, according to general rule subordinate to other bodies, officials, but which can be transferred by bodies authorized to consider them on the merits, officials for consideration by a judge, in the event that the authorized body, official recognizes it necessary to apply to the person brought to administrative responsibility, types of administrative punishment, the appointment of which is within the exclusive competence of judges. Thus, the sanction of Art. 12.15 Part 4 of the Code of Administrative Offenses, along with the application of an administrative fine, provides administrative punishment in the form of deprivation of the right to drive vehicles, which, by virtue of Art. 3.8 KRFoAP is appointed only by a judge. Thus, the consideration of these cases becomes subordinate to the judge only if there is a ruling from an authorized official to transfer the case to a judge authorized to impose an administrative penalty of a different type or amount in accordance with clause 1, part 2 of Art. 29.9 KRFoAP. Since these cases become under the jurisdiction of the judge on the initiative of the body or official who examined the case and came to the conclusion that it was necessary to apply a penalty in the form administrative arrest, judges cannot accept such cases for proceedings according to own initiative. Based on the meaning of clause 1, part 2, art. 29.9, art. 29.12 of the Code of Administrative Offenses of the Russian Federation, the body or official authorized by the person, based on the results of consideration of the case, must issue a reasoned determination, the presence of which is a necessary condition for acceptance by the judge of the case on the merits. In the received material about an administrative offense against Fedotenko S.V. about the commission of an administrative offense under Art. 12.15 Part 4 of the Code of Administrative Offenses there is a determination on the transfer of case materials to jurisdiction, the content of which boils down to the fact that the consideration of this case does not fall within the competence of the traffic police inspector of the State Traffic Safety Inspectorate of the State Traffic Safety Inspectorate of the Ministry of Internal Affairs of the Russian Federation for the Republic of Kazakhstan. However, the reasons that served as the basis for transferring the case to a judge are not motivated, and there is no official opinion about the reasons for the need to impose a more severe punishment on the person brought to justice than an administrative fine, which an official of an administrative body has the right to impose independently. The mere inclusion in the definition of a reference to the fact that the consideration of this case does not fall within the competence of the official is not a sufficient basis for sending the case to a magistrate for consideration. The magistrate cannot agree with the position of deputy commander V.A. Vetlitsyn, set out in cover letter <НОМЕР>from<ДАТА4>that in accordance with clause 5, part 2, art. 23.3 of the Code of Administrative Offenses in cases of administrative offenses provided for in Part. 1-3, part 5 art. 12.15 of this Code has the right to review the head of the state road safety inspection, his deputy, the head of the center for automated recording of administrative offenses in the field of traffic of the state road safety inspection, his deputy, the commander of a regiment (battalion, company) of the road patrol service, his deputy, in in the case of recording an administrative offense using automatic special technical means that have the functions of photography, filming, and video recording, since it is based on an incorrect interpretation of the law. This clarification applies only to Part 5 of Art. 12.15 KRFoAP. Violations of procedural requirements committed are significant and cannot be corrected during the consideration of the case. Within the meaning of Articles 28.2, 29.4 of the Code of Administrative Offenses, in the event of an incorrect preparation of the protocol and other materials of the case, or incompleteness of the presented materials, which cannot be filled in during the consideration of the case, the protocol on the administrative offense must be returned to the person who compiled it. Based on the above and guided by Art. 29.4 part 1 of the Code of Administrative Offenses Magistrate Judge O P R E D E L I L: Materials of the case on an administrative offense against Sergei Vasilievich Fedotenko under Art. 12.15 Part 4 of the Code of Administrative Offenses to return to the Traffic Police Regiment of the State Traffic Safety Inspectorate of the Main Directorate of the Ministry of Internal Affairs of Russia for the Rostov Region to eliminate deficiencies. Magistrate Ermakov S.N.