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Algorithm of actions when appealing against decisions and decisions in cases of administrative offenses (Chapter 30 of the Code of Administrative Offenses of the Russian Federation)

General provisions

1. What can be appealed?

Based on Articles 30.1, 30.9, 30.10, 30.12 of the Code of Administrative Offenses of the Russian Federation, you can appeal against:

1) Decisions on the case of an administrative offense that have not entered into force;

2) Decisions on the case of an administrative offense that have entered into force;

3) Subsequent decisions on the complaint against the decision in the case of an administrative offense;

4) Ruling on the refusal to initiate proceedings on an administrative offense.

2. Who has the right to appeal against a decision on cases of an administrative offense that has not entered into force?

The persons specified in Article 30.1 of the Code of Administrative Offenses of the Russian Federation have the right to appeal, namely:

1) 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 of the Russian Federation);

2) Victim (Article 25.2 of the Code of Administrative Offenses of the Russian Federation);

3) Legal representatives of an individual and a legal entity (Art. 25.3-25.4 of the Code of Administrative Offenses of the Russian Federation);

4) Defender and representative (Article 25.5 of the Code of Administrative Offenses of the Russian Federation);

5) Commissioner under the President of the Russian Federation for the protection of the rights of entrepreneurs (Article 25.5.1 of the Code of Administrative Offenses of the Russian Federation).

2.1. Does the prosecutor have the right to protest against a decision on cases of an administrative offense (PDAP)?

Yes, in accordance with Article 30.10 of the Code of Administrative Offenses of the Russian Federation, the prosecutor has the right to bring protests to:

1) A ruling on a case concerning an administrative offense that has not entered into force or has entered into legal force;

2) And (or) subsequent decisions of higher authorities on complaints against this decision

2.2. Does a person authorized by law to draw up a protocol on an administrative offense have the right to appeal against a decision (PDAP) issued by a judge?

Yes, according to part 1.1 of article 30.1 of the Code of Administrative Offenses of the Russian Federation, such a person has the right to appeal the PDAP issued by the judge to a higher court. But this right applies only to decisions that have not entered into force. If the decision has already entered into force, then such a person does not have such a right (Article 30.12 of the Code of Administrative Offenses of the Russian Federation).

3. Where are decisions on cases of an administrative offense that have not entered into force appealed?

It all depends on the person or body that issued the decision (Article 30.1 of the Code of Administrative Offenses of the Russian Federation):

Judge - to a higher court (for example, a justice of the peace issued a decision, an appeal is made to a district court);

Collegial body - to the district court at the location of the collegial body;

By an official - to a higher official or to a higher authority or to the district court at the place of consideration of the case (servicemen - to the garrison military court). That is, in this case, the right to choose where to file a complaint is granted.

Resolution (PDAP) issued by another body created in accordance with the law of the subject of the Russian Federation - to the district court at the place of the case;

	Attention! If a complaint against a decision in a case of an administrative offense is filed simultaneously with the court and with a higher body or a higher official, then in accordance with Part 2 of Article 30.1 of the Code of Administrative Offenses of the Russian Federation, the complaint is considered by the court.

3.1. When is the case on challenging the decision of an administrative body under the jurisdiction of the arbitration court, and when is it to the court of general jurisdiction?

Decision on the case of an administrative offense related to the implementation entrepreneurial or other economic activity by a legal entity or a person carrying out entrepreneurial activities without forming a legal entity, is appealed to court of Arbitration in accordance with the arbitration procedural legislation, namely in the manner prescribed by § 2 Chapter 25 of the Arbitration Procedure Code of the Russian Federation. Unfortunately, in practice there is no clear understanding of which cases are still under the jurisdiction of arbitration, and which courts of general jurisdiction.

A partial answer to the question of what cases will be under the jurisdiction of the courts of general jurisdiction is given in paragraph 33 of the Decree of the Supreme Court of the Russian Federation N 5, as well as in the answer to question 10 of Section VI of the Review of Judicial Practice of the Supreme Court of the Russian Federation 1 (2014).

AT court of general jurisdiction rulings and decisions in cases of an administrative offense are appealed, if the objective side of the offense is aimed at violating or non-compliance with the norms of legislation in the field of:

a) sanitary and epidemiological welfare of the population;

b) in the field of environmental protection and nature management;

c) road safety;

d) fire safety;

e) legislation on labor and labor protection.

	Arbitrage practice The presence of the status of a legal entity in itself does not give grounds for unconditionally attributing the dispute to the jurisdiction of the arbitration court (Resolution of the Arbitration Court of the North-Western District of 08.11.2016 N Ф07-9555/2016 in case N А56-23982/2016)

4. What is the deadline for appealing against a decision that has not entered into legal force (PDAP)?

According to part 1 of article 30.3 of the Code of Administrative Offenses of the Russian Federation, as a general rule, the period for appeal is ten days from the date of delivery or receipt of a copy of the decision. A similar period is fixed in part 2 of article 208 of the APC of the Russian Federation.

For cases referred to in Part 3, Article 30.3 of the Code of Administrative Offenses of the Russian Federation, (related to the electoral process) - five days from the date of delivery or receipt of a copy of the decision.

Important! Missing the deadline established by law for appealing against a decision of an administrative body on bringing to administrative responsibility or a refusal to restore it is a sufficient and independent reason for refusing to satisfy an application for declaring it illegal and canceling the decision of an administrative body (Decree of the Arbitration Court of the Volga-Vyatka District dated February 13, 2015 N Ф01-6271 / 2014 in case N А39-1552 / 2014) or complaints against the decision in the case of an administrative offense.

Attention! Recently, in cases of appeal, the courts apply, by analogy, the provisions of paragraph 1 of Article 165.1 of the Civil Code of the Russian Federation on legally significant messages, namely the provision that the message is considered delivered even in cases where it has been received by the person to whom it was sent (addressee ), but due to circumstances depending on him, was not handed to him or the addressee did not familiarize himself with it. For example, avoidance of receiving correspondence or negligence in receiving and processing correspondence will lead to the fact that the court considers the decision in the case of an administrative offense to be served on the person held liable within the time limits established by law (Resolution of the Fourth Arbitration Court of Appeal dated 01.06.2016 N 04AP-2137 /2016 in case N A19-619/2015)

5. Can the time limit for appealing against the decision (PDAP) be restored?

Yes, such a period, in accordance with part 2 of article 30.3 of the Code of Administrative Offenses of the Russian Federation, can be restored at the request of the person who filed the complaint.

Such a petition can either be contained in the text of the complaint or be submitted as a separate document, as follows from the meaning of Part 2 of Article 30.3 of the Code of Administrative Offenses of the Russian Federation.

The petition or part of the complaint containing the petition must contain:

a) an indication of the reasons that caused the missed deadline;

b) request to restore the deadline.

The petition is considered by a judge or an official authorized to consider the complaint. The petition is considered in the order of Chapter 30 of the Code of Administrative Offenses of the Russian Federation with the obligatory notification of the person who submits the petition.

Arbitrage practice Consideration of the application in the absence of the applicant, who was not properly notified of the consideration of the application, will be regarded as a significant violation of the applicant’s procedural rights and will entail the cancellation of the decision to refuse to restore the term (see, for example, the Resolution of the St. Petersburg City Court dated 27.10. 2016 N 4а-1461/2016 in case N 12-565/2016)

On the rejection of the petition for the restoration of the term for appealing against the decision in the case of an administrative offense, a ruling is issued (part 4 of article 30.3 of the Code of Administrative Offenses of the Russian Federation).

The question arises: is it possible to appeal against the court ruling on the restoration of the missed period? This definition does not create obstacles to the progress of the case, does not deprive interested persons of the right to appeal against the judicial act adopted in the case, therefore, unless otherwise provided by law, it is not subject to appeal. In particular, such a position is found in the system of arbitration courts. For example, the district court noted that the court ruling on the restoration of the procedural period expressed in the relevant judicial act is not subject to appeal (Resolution of the Federal Antimonopoly Service of the North-Western District of February 13, 2012 in case N A56-24343 / 2011).

6. What reasons can be considered valid for the restoration of the deadline for filing a complaint against a decision (PDAP), and which are not?

The judge or official authorized to consider the complaint shall assess the validity of the reason for the absence, based on the circumstances of the absence and the duration of the absence (the period of absence), as well as the extent to which the reason for the absence prevented the appeal of the decision. As a rule, such reasons can be procedural violations of notifying a person about the consideration of a case and issuing a decision, non-delivery of correspondence due to the fault of a communications organization, a serious illness or a long business trip of a citizen or individual entrepreneur, etc. It is most difficult to restore the deadline for appealing to legal entities.

As for the list of reasons, there is no such exhaustive list due to the variety of situations in practice.

For example, the courts did not recognize good reasons for missing:

- personnel changes in the organization (Resolution of the Arbitration Court of the North-Western District dated March 22, 2016 N F07-405 / 2016 in case N A21-3432 / 2015);

- receiving correspondence by an employee, and not by the head of the organization (Resolution of the Arbitration Court of the East Siberian District dated 03.12.2014 N F02-4844 / 2014 in case N A19-19571 / 2013);

- the absence of an organization at the legal address indicated in the Unified State Register of Legal Entities (Resolution of the Thirteenth Arbitration Court of Appeal of August 24, 2016 N 13AP-16064/2016 in case N A56-8153/2016);

- finding the person responsible for the appeal on sick leave (Resolution of the Thirteenth Arbitration Court of Appeal dated July 12, 2016 N 13AP-10112/2016 in case N A21-9235/2015);

- illness, if it does not make it impossible to appeal the decision and the person was duly notified of the decision on the case (Decision of the Moscow City Court dated November 24, 2016 in case N 7-14657 / 2016);

- the initial filing of a complaint with a higher person or a higher authority, since such a complaint does not prevent the simultaneous filing of a complaint with the court (Decision of the Moscow City Court of November 16, 2016 in case N 7-14492/2016);

- change of residence, if the relevant authorities involved in the consideration of the case were not notified of the change of address (Decision of the Supreme Court of the Russian Federation of November 17, 2016 N 1-AAD16-1).

The courts considered the reasons respectful:

- insignificant time of admission (two days) (Decree of the Third Arbitration Court of Appeal dated September 27, 2010 in case N A33-2698 / 2010). Meanwhile, this is the exception rather than the rule;

- the judge, having established that the complaint was not within the jurisdiction of this court, contrary to the requirements of Part 4 of Article 30.2 of the Code of Administrative Offenses of the Russian Federation, returned the complaint to the applicant, due to which the deadline was missed (Resolution of the Supreme Court of the Russian Federation of November 15, 2016 N 5-AD16-49) ;

- there is no evidence that a copy of the decision was handed over to the legal representative of the legal entity or received by mail (Decree of the Federal Antimonopoly Service of the North Caucasus District of December 13, 2010 in case N A15-390 / 2010);

- the court of general jurisdiction made a decision on the case, which was later canceled due to the lack of jurisdiction of the SOY dispute (Decision of the Arbitration Court of St. Petersburg and the Leningrad Region dated 05.08.2011 in case No. Court of Appeal dated November 11, 2011, Resolution of the Federal Antimonopoly Service of the North-Western District dated February 13, 2012);

- an error in calculating the period for appeal by the judge - from the date of the decision, while it is necessary from the date of delivery or receipt of a copy (Determination of the Moscow City Court of November 16, 2016 in case N 7-14774 / 2016);

- the decision does not contain an explanation of the procedure for appealing (Decree of the Supreme Court of the Russian Federation of 03.10.2016 N 74-AD16-10).

6.1. Does the court of general jurisdiction restore the missed deadline if the application was previously filed with the arbitration court, which ruled that the case was not under the jurisdiction of the arbitration court?

There is no single answer to this question, because. it all depends on the circumstances of the case.

For example, if:

a) the application to the arbitration court was filed within the time limit for appeal;

b) the application to the SOYA was filed immediately after the announcement by the arbitration court of the operative part of the ruling on the return of the application due to the lack of jurisdiction of the case of the court;

then there is a high probability of recovering the missed deadline. At least there is a positive decision of the Supreme Court of the Russian Federation in similar circumstances. (Resolution of the Supreme Court of the Russian Federation of 07/06/2015 N 9-AD15-8).

However, there are many negative examples when the courts refused to restore the term (and most often refuse). For details, see the explanations for "Step 2" of the second section of this material.

7. What is the result of consideration of a complaint against a decision (PDAP)?

Based on the results of the consideration of the complaint, decision.

Important: if, as a result of the consideration of the complaint, an act is adopted, entitled differently than the decision, this can be regarded as a violation of the procedural requirements for considering the complaint and serve as a basis for the cancellation of such an act (see, for example, the Resolution of the Tambov Regional Court dated September 15, 2016 in case N 4A- 216/2016: a complaint was filed against the decision of the justice of the peace in the case of an administrative offense, the judge of the district court, based on the results of the consideration, issued a decision, and not a decision, which led to the cancellation of such a decision by the regional court).

8. Is it possible to appeal a decision made on a complaint against a decision (CPAP), and if so, which persons have such a right?

Yes, such a decision can be appealed. According to Article 30.9 of the Code of Administrative Offenses of the Russian Federation, persons who have the right to appeal the decision itself (PDAP) have the right to appeal - see the answer to question 2.

In addition, the following persons have the right to appeal decisions:

a) the official who issued the contested decision;

b) the head of a collegiate body and a body established in accordance with the law of a constituent entity of the Russian Federation, if the decision was issued by such a body.

The prosecutor also, in accordance with part 1 of article 30.10 of the Code of Administrative Offenses of the Russian Federation, has the right to protest against decisions taken on complaints against decisions in a case of an administrative offense.

9. To which body are appeals against decisions on complaints against a decision in a case on an administrative offense?

The decision is appealed in the manner prescribed in Article 30.9 of the Code of Administrative Offenses of the Russian Federation, namely, if the decision is made:

Judge - then to a higher court;

By a higher official or a higher body - to the court at the place of consideration of the complaint, and then to the higher court.

10. What is the deadline for appealing a decision on a complaint against a decision (PDAP)?

In accordance with Part 3 of Article 30.9 of the Code of Administrative Offenses of the Russian Federation, deadlines are set for appealing against decisions similar to the deadlines in Article 30.3 of the Code of Administrative Offenses of the Russian Federation, namely, within ten days from the date of delivery or receipt of a copy of the complaint. And in cases referred to in Part 3, Article 30.3 of the Code of Administrative Offenses of the Russian Federation, (election process) - within five.

If the deadline for appeal is missed, it can be reinstated at the request of the person who missed the deadline (see answers to questions 6-8).

	Important! If the complaint was considered by the arbitration court, then in accordance with Part 5 of Article 211 of the Arbitration Procedure Code of the Russian Federation, the decision of the arbitration court enters into legal force after ten days from the date of its adoption, unless an appeal is filed.

The prosecutor's protest is carried out within the same time frame (part 1 of article 30.10 of the Code of Administrative Offenses of the Russian Federation).

11. Is it possible to appeal against decisions (PDAP) and decisions on complaints against decisions if they have entered into force. Which persons have the right to such an appeal and where is the relevant complaint/protest filed and within what time frame?

Yes, according to Article 30.12 of the Code of Administrative Offenses of the Russian Federation, decisions on complaints against decisions and the decisions themselves (PDAP), which have entered into force, can be appealed.

	Important! For appealing against decisions that have entered into force in cases of administrative offenses and (or) subsequent decisions on complaints against such decisions, it does not matter whether such a decision or decision was appealed in a different manner, since the Code of Administrative Offenses of the Russian Federation in Articles 30.12-30.19 does not put forward such a condition .

The persons indicated in the answer to question 2 have this right, i.e. those persons who initially have the right to appeal against the decision (PDAP), as well as (Article 30.12 of the Code of Administrative Offenses of the Russian Federation):

a) the official who issued the decision - a decision that has entered into legal force based on the results of a complaint or protest of the prosecutor against the decision (PDAP);

The Constitution of the Russian Federation provides a citizen with an inalienable right to appeal against decisions, actions or inactions of authorities, public associations and officials (Article 46). Thus, the granted right guarantees the possibility of appealing against decisions on administrative offenses in cases where a citizen has reason to believe that such a decision was made in violation of the rule of law.

The legislative norms that regulate the process of reviewing cases of administrative offenses include the provisions of the Code of the Russian Federation on Administrative Offenses (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation). Knowledge of the key requirements of the legislation is necessary to achieve the desired result - the revision or cancellation of the imposed sanctions. How to appeal against a decision on an administrative offense and competently draw up the necessary complaint, we will consider in more detail in our article.

How, in what terms, in what order the contestation of decisions on an administrative offense is carried out is determined by the norms of Ch. 30 of the Code of Administrative Offenses of the Russian Federation. Administrative and administrative procedural legislation is under the joint jurisdiction of the Russian Federation and its subjects (Article 72 of the Constitution of the Russian Federation), which implies the initial application of the provisions of the regional law (within the limits determined by Article 1.3 of the Code of Administrative Offenses of the Russian Federation), and in the absence of such regulatory provisions - federal legislation.

Let us consider in more detail the subject composition, grounds, terms, jurisdiction and jurisdiction of the revision of administrative offenses.

Who has the right to appeal the decision

As a general rule, the Code of Administrative Offenses of the Russian Federation reserves the right for a citizen to appeal against the actions / inaction of officials and authorities at their own discretion at any stage of legal proceedings.

A complaint in a case of an administrative offense may be filed:

• by a person - the subject of an offense (Article 25.1 of the Code of Administrative Offenses of the Russian Federation);
• persons affected by the commission of an offense (Article 25.2 of the Code of Administrative Offenses of the Russian Federation);
• representatives and defenders of these persons (Articles 25.3 - 25.5 of the Code of Administrative Offenses of the Russian Federation);
• by an official if he has the authority to draw up protocols (Article 28.3 of the Code of Administrative Offenses of the Russian Federation) - in relation to decisions issued by a judge (Article 30.1 of the Code of Administrative Offenses of the Russian Federation).

The prosecutor is a separate entity with the right to appeal. The protest brought by the prosecutor against the decision to impose an administrative sanction is subject to consideration in the same manner and within the same timeframe as the complaint of the said persons.

The subject of the appeal is a ruling on an administrative offense. Depending on the official or authority that made such a decision, the complaint is subject to consideration (Article 30.1 of the Code of Administrative Offenses of the Russian Federation):

• by a higher court - in the case of a decision by a judge (for example, a decision of a justice of the peace will be reviewed by a district / city court);
• district court - decision of a collegiate body (for example, an administrative commission, a commission on juvenile affairs);
• a higher official / body or a district court - in cases where an administrative sanction is imposed by an official (for example, if you are fined by a traffic police officer, then you have the right to decide on your own where to file a complaint - to the district court or to the head of the traffic police / his deputy);
• arbitration court - if the subject of entrepreneurial activity participated in the commission of the offense;
• district court - all other cases.

Note!

If the complaint is filed simultaneously with the court and the higher body of the official, the complaint that is in court is subject to consideration.

How to file a complaint

The procedure for filing a complaint in accordance with Art. 30.2 of the Code of Administrative Offenses of the Russian Federation provides for 2 options:

1. Directly to the person/body that made the decision. In this case, the recipient of the complaint is obliged to independently send all the materials on the case and the complaint itself to the place of its consideration within three days as a general rule.
2. Bypassing the first paragraph, directly to the body / court where the review will be carried out.

The payment of a state fee in the framework of the review of an administrative case is not provided. The general term for filing a complaint is 10 days from the date of delivery / receipt of the decision, it is determined by the final period of entry into force of the decision.

Note!

In cases where the order is sent by registered mail, the ten-day period is counted from the date the status of the shipment is changed to "unsuccessful delivery attempt" or "delivery to the addressee" (whichever comes first) on the official website of the Russian Post.

Thus, if you deliberately do not receive correspondence in order to delay the deadlines, then there is a high probability of missing the deadlines for appealing. If there are good reasons for missing the specified period, the court has the right to restore it on the basis of a petition (Article 30.3 of the Code of Administrative Offenses of the Russian Federation).

What are the results of an appeal?

Before making a decision, an official or a judge (single-handedly) considers the received case materials. As part of the review, all procedural documents and evidence presented are subject to examination, as well as the arguments made during the initial consideration. Within the framework of the appeal, the principle of “the impossibility of worsening the situation of a person” applies, i.e. the imposed sanction cannot be increased.

The result of consideration of a complaint (protest) may be (Article 30.6 of the Code of Administrative Offenses of the Russian Federation):

• refusal to satisfy the complaint (the decision was adopted within the framework of the law and is correct in essence, the punishment is justified);
• the punishment is changed (for example, the size of the fine is reduced);
• the decision is canceled, t.to. production is terminated (grounds - articles 2.9, 24.5 of the Code of Administrative Offenses of the Russian Federation);
• a new trial is appointed, the case is returned to the body that makes the decision in the first instance;
• the case is sent for consideration by jurisdiction in the case when the initial decision was made by an unauthorized body.

Appeal against decisions that have entered into force is allocated to a separate stage of production. Based on Art. 30.13 of the Code of Administrative Offenses of the Russian Federation, consideration of the complaints filed or protests brought by the prosecutor is carried out by the supreme courts (of the republic, territory, region, etc.).

How to file a complaint

The Code of Administrative Offenses of the Russian Federation does not provide for special requirements for the form and content of a complaint against a decision in a case on an administrative offense. However, it is recommended to specify the following:

• details of the court where the complaint will be considered;
• information about the participants in the dispute (applicant, interested parties);
• reference to the contested decision;
• motivated arguments to substantiate their position with references to the rule of law;
• stated requirements (for change, cancellation);
• list of attached documents.

The complaint is signed personally by the applicant or his representative. In the latter case, a power of attorney is attached to the complaint.

Thus, the appeal of an administrative offense is an accessible tool for restoring the rights of citizens in the event of a direct violation of rights.

However, the imperative regulation of the process requires careful and careful study. It is advisable in this matter to resort to the help of a lawyer in cases of appealing decisions on administrative offenses. The lawyer must have sufficient experience and qualifications to assess the likelihood of a complaint being upheld and take all necessary steps to reverse the order.

The cost of such services may vary depending on many factors, such as the experience and qualifications of a lawyer, his reputation, the complexity of the case, as well as the region where the services are provided. So, a lawyer from Moscow will agree to represent your interests for a fee that will be many times higher than in regions more distant from the capital.

In turn, our legal resource provides full accompanying online advice on challenging an administrative penalty. You do not need to apply to lawyers in person to appeal the decision on an administrative offense, our specialists will help you resolve the problem as soon as possible.

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• Appeal against a decision on an administrative offense

Who has the right to appeal a decision on an administrative offense?

In accordance with Article 30.1 of the Code of Administrative Offenses of the Russian Federation, a decision in a case on an administrative offense may be appealed by the persons specified in Articles 25.1 - 25.5.1. That is, the following participants in the proceedings have the right to appeal the decision:

- 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 of the Russian Federation);
- the victim (Article 25.2 of the Code of Administrative Offenses of the Russian Federation);
- legal representatives of an individual (Article 25.3 of the Code of Administrative Offenses of the Russian Federation);
- legal representatives of a legal entity (Article 25.4 of the Code of Administrative Offenses of the Russian Federation);
- defender and representative (Article 25.5 of the Code of Administrative Offenses of the Russian Federation);
- Commissioner under the President of the Russian Federation for the protection of the rights of entrepreneurs (Article 25.5.1 of the Code of Administrative Offenses of the Russian Federation).

In accordance with Part 1.1 of Article 30.1 of the Code of Administrative Offenses of the Russian Federation, a decision on an administrative offense case issued by a judge may also be appealed to a higher court by an official authorized in accordance with Article 28.3 of this Code to draw up a protocol on an administrative offense.

The decision on an administrative offense can be appealed, depending on who issued the decision, to a higher body, a higher official, a district court or a higher court (Article 30.1 of the Code of Administrative Offenses of the Russian Federation)

The procedure for filing a complaint against a decision on an administrative offense

In accordance with part 1 of Article 30.2 of the Code of Administrative Offenses of the Russian Federation, a complaint can be filed both with a judge, with a body, with an official who issued a decision on the case, and directly with the court, a higher body, a higher official authorized to consider it (part 3 article 30.2).

When filing a complaint, you do not need to pay a state fee.

Time limit for appealing against a decision in a case concerning an administrative offense

A complaint against a decision in a case of an administrative offense may be filed within ten days from the date of delivery or receipt of a copy of the decision (Article 30.3 of the Code of Administrative Offenses of the Russian Federation).

Part 2 of this article provides for the possibility of restoring the missed 10-day deadline for filing a complaint. In order to restore the missed deadline, it is necessary to attach, together with a complaint against the decision, a request for the restoration of the deadline with the obligatory indication of good reasons for missing the deadline (illness, impossibility of filing a complaint on time due to force majeure circumstances, caring for a seriously ill loved one, etc.). See more about this in the article "Restoration of the time limits for appealing against a decision in a case of an administrative offense".

Decision on complaint against ruling

Based on the results of the consideration of the complaint, one of the decisions specified in Part 1 of Article 30.7 of the Code of Administrative Offenses of the Russian Federation is made (leave unchanged; change the decision; cancel the decision and terminate the proceedings; cancel the decision and return the case for a new consideration in case of a significant violation of procedural requirements or the need to impose a more severe punishment; cancel the decision and send the case for consideration according to jurisdiction).

Samples of complaints against a decision in a case on an administrative offense

Complaint against a decision on an administrative offense (issued by an official or authorized body), sample;

Complaint against the decision of the justice of the peace in the case of an administrative offense, sample;

Complaint in the case of an administrative offense under Art. 12.24 of the Code of Administrative Offenses of the Russian Federation (the ruling on bringing to administrative responsibility in the form of deprivation of the right to drive a vehicle issued by the district court is being appealed in the regional court);

Complaint against a decision on an administrative offense (clause 9.10 of the SDA - did not withstand the necessary lateral interval to ensure traffic safety)

Alexander Otrokhov, Legal Center "Logos" (Omsk), 15.04.2015

How to appeal a decision on an administrative offense

If a citizen is brought to administrative responsibility, he has the right to appeal such a decision, and about how to do this, as well as which complaint form is better to use - right now.

How to bring to administrative responsibility

Similar cases occur in a fairly large number of situations that are spelled out in the Code of Administrative Offenses. It also indicates the general procedure that a person can use to appeal against a decision that seems unfair to him. Information about this is contained in chapter 30 of the code (articles 30.1 to 20.8 inclusive).

Regardless of what kind of violation occurred and was recorded by the police, the procedure for documenting it and, accordingly, the beginning of the consideration consists of 2 stages:

1. First, the authorities initiate a case about an administrative offense committed by a citizen. This stage is accompanied by the preparation of a special protocol.
2. Then the case is considered, as a result of which the execution and entry into force of the decision on it takes place.

There are significant legal differences between the two documents, which are discussed below.

Offense Record

The police are required to draw up a report on the incident. In fact, this document only captures the situation (incident) exactly from the point of view of the authorities. The citizen himself is not obliged to agree with the protocol, so he has the right to choose. If he does not object, his consent is automatically recognized. If he objects on the merits of this document, he has the right to reflect his position in writing, about which a corresponding note is made in the protocol.

So the protocol is:

• does not bring any charges against the citizen;
• accordingly, it cannot be appealed - since no claims are made against the person at this stage;
• moreover, in this document, the citizen himself can express disagreement and ask to include this information in its text.

The document always contains the following information:

1. Date, place of compilation.
2. Full name, position of the person who draws up the document.
3. A detailed description of the offense and a mandatory reference to a specific article/articles of the Code of Administrative Offenses.
4. Information about the offender - full name, date of birth, gender, passport data.

The standard protocol form is shown below.

Offense Ordinance

1. The protocol and the case are considered by a higher official - the head or deputy head of the local department of the Ministry of Internal Affairs. Based on the results of the consideration, the employee draws up a resolution.
2. The document, together with other evidence, if any, is submitted to the court, and then it is the court's decision that will have legal consequences for the violator.

It is the decision on an administrative offense that is a direct accusation of a citizen in an incident, respectively, we can talk about how to appeal this particular document.

Thus the ruling:

• ascertains the fact of an administrative offense;
• accuses him of what he has done;
• compels to bear certain responsibility - a fine, administrative arrest, etc.

This document has legal force, i.e. the violator is obliged to fulfill his order and, for example, pay a fine. However, it is at this stage that a citizen has the right to draw up a complaint of a certain type, disagreeing with the arguments set forth on an administrative offense.

Of course, in some cases, the decision may also have an exculpatory character, but such situations occur much less frequently than documents stating a violation.

Time limit for appeal

In most cases, the right to appeal the decision is 10 calendar days from the day following the day the decision enters into force.

However, due to certain valid reasons, such a period can be restored even when applying, for example, after a month:

• disease of the offender;
• the serious illness of his close relative, a child, because of which he had to take care of him;
• fires, earthquakes, floods and other natural disasters;
• force majeure events: robbery, assault, theft in an apartment, etc.

In all cases, the decision to restore the terms is made by a higher person - for example, the head of a department of the Ministry of Internal Affairs or a higher structure of the Ministry of Internal Affairs (or a court). The duty to prove the fact of a good reason lies with the citizen - he must bring documents from the hospital, certificates from the police, etc.

Appeal procedure

There are several options for filing a complaint. In this case, you can independently choose any of them, without even contacting an intermediate instance. For example, if the alleged violator does not want to appeal the case through the Ministry of Internal Affairs, he can do so through the courts. If he files a complaint simultaneously with the Ministry of Internal Affairs and the court, then the case will be considered in court.

In general, there are 3 ways to appeal:

1. An appeal to the Ministry of Internal Affairs or to a specific official who is higher in position relative to the employee who made the decision on the offense.
2. Appeal directly to the court if the citizen believes that such a measure is more effective.
3. Finally, the most extreme option in such situations is to contact the prosecutor's office, i.e. body that oversees compliance with the law by police officers. A similar opportunity can be used in cases where the deadline for applying has expired or the result of applying to the Ministry of Internal Affairs did not suit the citizen.

Thus, you can go to the police or immediately to the court. On the other hand, based on the results of the investigation of the legality of the decision made by the police, you can apply to the prosecutor's office or go further to the court. All these solutions are visualized in the diagram.

NOTE. Even a citizen's mistake in determining jurisdiction eliminates the risk that the complaint will not be considered. Thus, if, for example, a claim was filed with another court, the authority is obliged to forward the complaint to another instance within 3 working days. The citizen will receive a notification by mail.

Appeal to the Ministry of Internal Affairs

From the point of view of simplicity, this is the best option, because:

• the case is dealt with very quickly;
• no state duty is expected to be paid.

On the other hand, the effectiveness of such a measure is not great - in most cases, a higher body of the Ministry of Internal Affairs or an official agrees with the adopted resolution, and does not recognize the citizen's arguments as justified.

Nevertheless, it is quite possible to try to use this path. To do this, the citizen applies:

1. To an official who has a higher position relative to the employee who issued the decision on the offense (for example, the head of the department of the Ministry of Internal Affairs).
2. To a higher body of the Ministry of Internal Affairs - for example, the Department of the Ministry of Internal Affairs for the Omsk Region.

In all cases, you must provide:

• a copy of the decision;
• your passport;
• a complaint against a decision on an administrative offense, a sample of which is discussed below;
• if possible, documents that support your position (for example, affidavits).

Then there are 2 options - a superior employee either agrees with the citizen's arguments or rejects them. In any case, an appropriate document is issued, a new resolution, a copy of which is received by the citizen. It must be kept in order to be used as evidence in the course of further consideration of the case in court, in a higher police body or in the prosecutor's office.

Going to court

When applying to the court, you must submit the same documents, but they are also accompanied by a statement of claim, which is drawn up in any form. The sequence in this case is:

1. First you need to go to the Magistrate's Court at the place of your registration (and if you are in another region - to the nearest one).
2. You can then appeal against the negative decision of the court in the district court.
3. Further, he can appeal against the decision of the district court in the regional or regional court (depending on the name of the particular region).
4. Finally, the last instance is the Presidium of the subject and the Supreme Court.

In this situation, it is also not expected to pay the state fee, i.e. in any case, for a citizen, the appeal procedure is completely free. In addition, the court will work no more than 15 calendar days after the day all the necessary documents were submitted.

Thus, the court can make one of the following types of decision in the case:

1. The negative option is that his complaint remains unsatisfied, and the decision is recognized as legal, and no changes are made to it. Those. after such a decision, if there is no further appeal, the citizen is obliged to comply with the requirements of the decision - a fine, administrative arrest, etc.
2. Change of resolution. In this case, the law is always on the side of the citizen - i.e. the force of an administrative penalty cannot be increased in relation to the one that was originally intended in accordance with the decision. Thus, the change can always be only positive - for example, a reduction in the amount of a penalty payment.
3. The decision can be canceled, and the case returned for a new consideration - to the same department of the Ministry of Internal Affairs, where the procedure began.
4. Or the decision will be canceled, but the case will be returned for consideration to the lower court, if the citizen initially applied there.
5. Finally, the decision can be canceled and recognized as illegal. Those. the citizen is released from administrative responsibility, the decision becomes invalid.

Sample Complaint 2018

Finally, it is important to understand how to correctly draw up a complaint, what model to use in order to appeal against a decision on an administrative offense, on which there are disagreements.

Regardless of the reason for the detention, i.e. which article of the Code of Administrative Offenses is violated from the point of view of the police, it is necessary to adhere to the general model, which includes:

1. An indication of the court or full name, the position of a higher-ranking officer of the Ministry of Internal Affairs (or the prosecutor's office) to whom the complaint is submitted for consideration.
2. Indication of the decision - number, date.
3. A descriptive part that details the fact of the incident - about who, when and on what basis drew up the decision, what type of violation was committed from the point of view of the police (with reference to the article of the Code of Administrative Offenses). In fact, in this part, you can rewrite the main content of the protocol or resolution.
4. The pleading part - i.e. direct request for annulment.
5. Annexes - documents that are attached to the complaint. Without fail, this is a copy of the decision and, at the request of the alleged violator, any documents that, from his point of view, can prove the correctness of the position. For example, affidavits of witnesses, cell phone camera recordings, etc.
6. Date, signature, transcript of the signature.

What provisions of the Code of Administrative Offenses can be referred to

It is important to understand that when drawing up such a document, even minimal knowledge of the law is of great importance. You need to be able to correctly substantiate your complaint - and this is possible only if there are references to specific provisions of the Code of Administrative Offenses, for example:

1. Article 30.1. - it can be referred to in any case, since it affirms the right of a person to be able, in principle, to appeal against any decision.
2. Article 2.9. - the insignificance of the incident. This means that the event is not of particular importance, the violation refers only to formal ones, since it did not really affect anyone's interests and, moreover, did not bring material or moral harm. In such cases, the law provides for an alternative - oral reprimand. It should be understood that the court or a superior person has the right to both agree with the arguments of the alleged infringer and reject them - i.e. this article is unreliable.
3. Article 24.5. - there are a number of conditions under which the decision can be canceled:

• there is no composition of the violation or there is no event as such, which was interpreted by the police as a violation;
• the citizen broke the law, but only formally, in view of the fact that he had to act in defense of himself (necessary self-defense);
• entry into force of the amnesty law concerning the violated article of the Code of Administrative Offenses;
• violation of the statute of limitations for initiating a case.

An example of a complaint is shown below.

Thus, everyone has the right to draw up a complaint of the considered sample in order to express their disagreement with the administrative offense that he committed from the point of view of the police. The procedure is completely free and carries no risks for him. At the same time, in most cases, you can draw up an appeal yourself, without additional legal advice.

Decision on the complaint against the decision of the administrative commission

Avtozavodsky District Court of Togliatti consisting of:

presiding judge I.N. Pikalova;

under the secretary Yu.N. Babich;

with the participation of the applicant P.

Representative of the Administrative Commission of the Avtozavodsky District of Togliatti

Having considered at the court session P.’s complaint against the decision of the Administrative Commission of the Avtozavodskoy District of Tolyatti dated April 7, 2010 on the imposition of an administrative penalty,

By the decision of the Administrative Commission of the Avtozavodsky District of Togliatti dated April 7, 2010, P. was brought to administrative responsibility under Art. 10.4 of the Law of the Samara Region No. 115-GD of November 1, 2007: “On Administrative Offenses on the Territory of the Samara Region” to a fine of 1000 rubles.

It follows from the said decision that P., being the director of E LLC, did not install a trash can at the entrance to the consumer market facility located in the city of Togliatti, thereby violating clause 3.4.1 of the “Rules for landscaping and gardening in the city of Togliatti” , approved by the resolution of the mayor's office g.about. Tolyatti dated May 4, 2009 No. 989-p / 1, which was revealed on April 1, 2010.

In the complaint, P. asks to cancel the said decision, due to the absence of the elements of this offense in his actions and the lack of proof of his guilt.

At the court session, the applicant P. supported the arguments of the complaint, explaining that LLC “E”, in which he is the director, is located in a separate room in the building of an apartment building, has a separate entrance and provides consumer services to the population. On April 1, 2010, employees of the Administrative Commission of the Avtozavodsky District carried out an inspection, as a result of which a protocol was drawn up against him for violating the Rules for landscaping and landscaping of the city. Togliatti, and in particular, for the lack of an urn at the entrance. He does not agree with this decision, because he believes that the point of violation of the above rules, which he is accused of, determines only the places for the installation of ballot boxes, on the territory of the city of Togliatti, but does not determine who is responsible for their installation. In addition, the applicant explained that a garbage container was installed 5 meters from the entrance to the premises of OOO E, he had an agreement on garbage collection, in addition, there was a trash can in the vestibule of the premises, so he took the necessary measures to maintain order at consumer market object.

The representative of the Administrative Commission Avtozavodskoy district g. Togliatti in LLC "E", located in the city of Togliatti, an inspection was carried out of compliance with the rules for landscaping and landscaping in the territory of Togliatti, approved by the mayor's office of the city of Togliatti. Tolyatti, it was found that there is no trash can at the entrance to the premises of this organization, which is an object of the consumer market, which is a violation of clause 3.4.1 of the above rules. Based on this, the director of E LLC, P., was brought to administrative responsibility under Art. 10.4 of the Law of the Samara Region No. 115-GD of November 1, 2007: “On Administrative Offenses in the Territory of the Samara Region”. He does not agree with the arguments of the complaint, since he believes that the above Rules define the obligation of legal entities, officials and individual entrepreneurs to comply with the requirements of the rules, and therefore, to install ballot boxes, at the entrance, at the objects specified in the Rules.

Having considered the arguments of the complaint, having studied the submitted materials of the case, having listened to the arguments of the applicant, the representative of the Administrative Commission, the court considers that the applicant's complaint is subject to satisfaction, on the following grounds:

Recognizing the director of LLC “E” P. guilty of committing an offense under Art. 10.4 of the Law of the Samara Region No. 115-GD of November 1, 2007: “On Administrative Offenses on the Territory of the Samara Region”, namely, in the failure to comply with the legal act adopted by the local government, the administrative commission proceeded from the fact that they had violated the requirements of paragraph 1 of Art. 3.4.1 "Rules for landscaping and landscaping on the territory of the city of Togliatti", approved by the resolution of the mayor's office of the city of Togliatti dated May 4, 2009 No. 989-p / 1.

At the same time, the conclusions of the commission about P.'s commission of this offense are not motivated by anything.

In accordance with Part 1 of Art. 1.5 of the Code of Administrative Offenses of the Russian Federation, a person is subject to administrative liability only for those administrative offenses in respect of which his guilt has been established.

According to Art. 2.4 of the Code of Administrative Offenses of the Russian Federation, an official is subject to administrative liability in cases of an administrative offense committed by him, in connection with non-performance or improper performance of his official duties.

As seen from the text of clause 3.4.1 of the Rules for Landscaping and Gardening in the Territory of Togliatti: stopping ways, streets, squares.

At the same time, neither the Rules themselves, the regulation, nor other evidence available in the case directly establishes who is directly responsible for installing these ballot boxes.

Thus, P.'s arguments that this norm of a legal act does not directly impose on him the obligation to purchase and install urns, but only designates the places for their installation, have not been refuted by anything.

The doubts that have arisen in the interpretation of the incriminated norm of the law, according to the requirements of Art. 1.5 of the Code of Administrative Offenses of the Russian Federation are interpreted in favor of the person against whom proceedings are being conducted in a case of administrative offenses.

Under the above circumstances, the court concluded that P.'s guilt in committing an administrative offense under Art. 10.4 of the Law of the Samara Region No. 115-GD of November 1, 2007: “On Administrative Offenses on the Territory of the Samara Region”, has not been established, in connection with which, the decision to impose an administrative penalty on him should be canceled, and the proceedings should be terminated on the basis of Art. 24.5 h. 1 p. 2 of the Administrative Code of the Russian Federation due to the lack of corpus delicti.

Based on the above, guided by art. 30.6-30.8 of the Code of Administrative Offenses of the Russian Federation, court, -

Resolution of the Administrative Commission of the Avtozavodsky District of Togliatti dated April 7, 2010 on the imposition of an administrative penalty against the director of LLC "E" P. . - cancel.

Proceedings in the case of an administrative offense against P. - terminate, on the basis of paragraph 2 of part 1 of Art. 24.5 of the Code of Administrative Offenses of the Russian Federation, due to the absence of an administrative offense.

The decision can be appealed to the Samara Regional Court through the Avtozavodsky District Court of Togliatti within 10 days from the receipt of a copy of the decision.

avtozavodsky.sam.sudrf.ru

Decision on the complaint against the decision of the administrative commission

Judicial precinct No. 39 of the Kologrivsky judicial district

on judicial practice in cases of administrative offenses of the Kostroma Regional Court for the second quarter of 2014

Generalization of judicial practice in cases of administrative offenses of the Kostroma Regional Court was carried out for the second quarter of 2014. The certificate contains materials of the judicial practice of the Kostroma Regional Court in cases of administrative offenses, as well as information on cases of administrative offenses considered by the Supreme Court of the Russian Federation.

1. In accordance with Part 1 of Art. 4.1 of the Code of Administrative Offenses of the Russian Federation, when imposing an administrative penalty on an individual, the nature of the administrative offense committed by him, the identity of the perpetrator, his property status, circumstances mitigating administrative responsibility, and circumstances aggravating administrative responsibility are taken into account.

Punishment for an administrative offense under Part 1 of Art. 12.24 of the Code of Administrative Offenses of the Russian Federation, established by law in the form of an administrative fine in the amount of two thousand five hundred to five thousand rubles or deprivation of the right to drive vehicles for a period of one to one and a half years.

By a decision of a judge of the Leninsky District Court of the city of Kostroma, Ch. was found guilty of an administrative offense under Part 1 of Art. 12.24 of the Code of Administrative Offenses of the Russian Federation, and brought to administrative responsibility in the form of deprivation of the right to drive vehicles for a period of 1 year.

At the same time, recognizing the absence of aggravating circumstances, the judge in the decision on the imposition of an administrative penalty did not provide data on the impossibility of imposing an administrative penalty in the form of an administrative fine for the specified offense.

In view of the foregoing, the judge's decision was amended, and the punishment imposed on Ch. was reduced to an administrative fine of 3,000 rubles.

2. By virtue of paragraph 6 of part 1 of Art. 29.10 of the Code of Administrative Offenses of the Russian Federation, the decision on the case of an administrative offense must contain a reasoned decision on the case. This means that the decision of the judge should not contain conflicting assessments and raise any doubts, including on the issue of imposing an administrative penalty.

By the decision of the judge of the Sverdlovsk District Court of the city of Kostroma S., an administrative penalty was imposed under Part 2 of Art. 12.24 of the Code of Administrative Offenses of the Russian Federation in the form of deprivation of the right to drive vehicles for a period of 1 year 6 months.

Changing the decision to impose an administrative penalty, the judge of the Kostroma Regional Court pointed out that in the reasoning part of the decision, the judge first concludes that S. was sentenced to the deprivation of the right to drive vehicles and the impossibility of applying a less severe punishment, and then comes to the conclusion that in order to achieve the goals of the administrative punishment, S. must be imposed an administrative fine.

Since the judge's decision contains mutually exclusive conclusions about the type of administrative punishment, the administrative punishment imposed on S. was reduced to an administrative fine of 10,000 rubles.

3. The decision in the case of an administrative offense, issued by the administrative commission, is appealed to the district court at the place of the case, taking into account the provisions of Art. 29.5 of the Code of Administrative Offenses of the Russian Federation.

By a decision of the administrative commission in the Kostroma municipal district of the Kostroma region of September 10, 2013, K. was found guilty of an administrative offense under Art. 23 of the Law of the Kostroma Region "Code of the Kostroma Region on Administrative Offenses", and he was sentenced to an administrative penalty in the form of an administrative fine in the amount of 1,000 rubles.

On February 3, 2014, K. filed a complaint with the Kostroma District Court of the Kostroma Region against the decision of the administrative commission in the Kostroma Municipal District of the Kostroma Region dated September 10, 2013. By the decision of the judge of the Kostroma District Court of the Kostroma Region dated February 6, 2014, K.'s complaint was submitted for consideration to the Leninsky District Court of Kostroma, indicating that since the administrative commission of the Kostroma Municipal District is located on the territory of the jurisdiction of the Leninsky District Court of Kostroma, the complaint to force n. 2 h. 1 Article. 30.1 of the Code of Administrative Offenses of the Russian Federation is subject to consideration by this court at the location of the collegial body.

By the decision of the judge of the Leninsky District Court of Kostroma dated April 8, 2014, the proceedings on K.'s complaint were terminated due to the expiration of the time limit for appealing against the decision to impose an administrative penalty and the absence of a petition for its restoration.

When considering K.’s complaint against the decision of the judge of the Leninsky District Court of the city of Kostroma dated April 8, 2014, the judge of Kostroma

In accordance with Part 1 of Art. 30.1 of the Code of Administrative Offenses of the Russian Federation, a decision in a case on an administrative offense may be appealed against:

- issued by a collegial body - to the district court at the location of the collegiate body (clause 2, part 1, article 30.1 of the Code of Administrative Offenses of the Russian Federation);

- issued by another body created in accordance with the law of the subject of the Russian Federation - to the district court at the place of consideration of the case (clause 4, part 1, article 30.1 of the Code of Administrative Offenses of the Russian Federation).

According to paragraph 5 of part 1 of Art. 1.3.1 of the Code of Administrative Offenses of the Russian Federation, the jurisdiction of the constituent entities of the Russian Federation in the field of legislation on administrative offenses includes the creation of administrative commissions and other collegiate bodies in order to bring to administrative responsibility provided for by the laws of the constituent entities of the Russian Federation.

Part 2 of Art. 22.1 of the Code of Administrative Offenses of the Russian Federation, administrative commissions are assigned to other collegiate bodies created in accordance with the laws of the constituent entities of the Russian Federation.

The Administrative Commission in the Kostroma Municipal District was established by the Law of the Kostroma Region dated April 28, 2007 No. 136-4-ZKO "On Administrative Commissions".

Thus, a systematic analysis of the above norms suggests that the decision in the case of an administrative offense issued by the administrative commission, by virtue of paragraph 4 of part 1 of Art. 30.1 of the Code of Administrative Offenses of the Russian Federation may be appealed to the district court at the place of consideration of the case.

In accordance with Part 1 of Art. 29.5 of the Code of Administrative Offenses of the Russian Federation, a case of an administrative offense is considered at the place of its commission, with the exception of the circumstances listed in this article and absent in this case.

According to the decision of the administrative commission in the Kostroma municipal district of the Kostroma region dated September 10, 2013, an administrative offense was committed in the village. Minskoe, Kostroma district, which belongs to the territorial jurisdiction of the Kostroma district court of the Kostroma region.

In accordance with paragraph 3 of Art. 30.4 of the Code of Administrative Offenses of the Russian Federation, when preparing for consideration of a complaint against a decision in a case on an administrative offense, a judge, an official sends a complaint with all the materials of the case for consideration according to jurisdiction, if its consideration does not fall within the competence of the relevant judge, official, and if the indicated circumstance is established during consideration complaints, then, according to Part 3 of Art. 30.7 of the Code of Administrative Offenses of the Russian Federation, a decision is made to transfer the complaint for consideration according to jurisdiction.

Thus, the judge of the Leninskiy District Court of Kostroma should have referred K.'s complaint to the Kostroma District Court of the Kostroma Region.

The presence in the case of the decision of the judge of the Kostroma District Court dated February 6, 2014 on the transfer of the complaint for consideration to the Leninsky District Court of the city of Kostroma did not prevent the judge from making a decision in accordance with

Federation for everyone the right to have his case considered in that court and by the judge to whose jurisdiction it is assigned by law (part 1 of article 47 of the Constitution of the Russian Federation).

Under such circumstances, the decision of the judge of the Leninsky District Court of Kostroma dated April 8, 2014 was canceled, and K.'s complaint was sent to the Kostroma District Court for consideration.

4. Jurisdiction of cases of administrative offenses initiated against legal entities based on the results of an inspection of their branches is determined by the location of the branches in whose activities the relevant violations have been identified and must be eliminated.

By the decision of the judge of the Leninsky District Court of the city of Kostroma, the decision of the state labor inspector of the State Labor Inspectorate in the Kostroma region on the appointment of the state enterprise of the Kostroma region "Kostromakhozles" (hereinafter - SE "Kostromakhozles") under part 1 of Art. Art. 5.27 of the Code of Administrative Offenses of the Russian Federation an administrative penalty in the form of an administrative fine in the amount of 30,000 rubles, the proceedings were terminated on the basis of paragraph 2 of part 1 of Art. 24.5 of the Code of Administrative Offenses of the Russian Federation due to the absence of an administrative offense.

Reversing the decision of the district court, the judge of the Kostroma Regional Court pointed out the following.

In accordance with paragraph 3 of part 1 of Art. 30.1 of the Code of Administrative Offenses of the Russian Federation, a decision on an administrative offense case issued by an official may be appealed to a higher authority, a higher official, or to the district court at the place of the case.

The rules for determining the place of consideration of an administrative offense case are established by Art. 29.5 of the Code of Administrative Offenses of the Russian Federation.

At the same time, in the third paragraph of p.p. “h”, paragraph 3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2905 No. 5 (as amended on December 19, 2013) “On some issues that arise with the courts when applying the Code of Administrative Offenses of the Russian Federation”, an explanation is given that that when determining the territorial jurisdiction of cases of administrative offenses, the objective side of which is expressed in inaction in the form of failure to fulfill the obligation established by a legal act, it is necessary to proceed from the place of residence of an individual, including an individual entrepreneur, the place of performance by an official of his duties or the location of a legal entity, determined in accordance with Art. 54 of the Civil Code of the Russian Federation. The jurisdiction of cases of administrative offenses initiated against legal entities based on the results of an inspection of their branches is determined by the location of the branches in whose activities

As can be seen from the materials of the case, the decision on the case of an administrative offense against the legal entity SE "Kostromakhozles" was issued in connection with the failure of the Sharya branch of the State Enterprise "Kostromakhozles" to fulfill the obligations established by labor legislation.

Other grounds provided for in Art. 29.5 of the Code of Administrative Offenses of the Russian Federation, which change the place of consideration of a case on an administrative offense, are absent.

Therefore, the complaint against the decision in the case of an administrative offense was subject to consideration by the Sharyinsky District Court of the Kostroma Region, in whose territorial jurisdiction the Sharyinsky branch of the State Enterprise Kostromakhozles is located.

5. When considering a case on an administrative offense committed by a person carrying out entrepreneurial activities without forming a legal entity, it is necessary to take into account the peculiarities established by law of bringing individual entrepreneurs to administrative responsibility.

The basis for the cancellation of the decision of the judge of the Vokhomsky District Court of the Kostroma Region on the appointment of an individual entrepreneur Zh. with an administrative penalty under Part 1 of Art. 18.15 of the Code of Administrative Offenses of the Russian Federation in the form of an administrative fine in the amount of 25,000 rubles was the following.

According to Part 1 of Art. 18.15 of the Code of Administrative Offenses of the Russian Federation, attracting a foreign citizen or stateless person to work in the Russian Federation if this foreign citizen or stateless person does not have a work permit or patent, if such a permit or patent is required in accordance with federal law, entails the imposition of an administrative fine on citizens in the amount of two thousand to five thousand rubles; for officials - from twenty-five thousand to fifty thousand rubles; for legal entities - from two hundred and fifty thousand to eight hundred thousand rubles or an administrative suspension of activities for a period of fourteen to ninety days.

Note to Art. 2.4 of the Code of Administrative Offenses of the Russian Federation, it is determined that persons engaged in entrepreneurial activities without forming a legal entity who have committed administrative offenses bear administrative responsibility as officials, unless otherwise provided by this Code.

In accordance with the note to Art. 18.1 of the Code of Administrative Offenses of the Russian Federation for administrative offenses provided for by this article and other articles of chapter 18 of the Code of Administrative Offenses of the Russian Federation, persons engaged in entrepreneurial activities without forming a legal entity, in connection with the implementation of these activities, bear administrative responsibility as legal entities, unless in the relevant articles of this chapter, carrying out entrepreneurial activities without forming a legal entity, which differ from the rules on administrative liability of legal entities.

Since the court of first instance found that ZH. is an individual entrepreneur and an administrative offense under Part 1 of Art. 18.15 of the Code of Administrative Offenses of the Russian Federation, committed in connection with the implementation of entrepreneurial activities, and this article does not contain the exceptions indicated in the note to Art. 18.1 of the Code of Administrative Offenses of the Russian Federation, then he must bear administrative responsibility as a legal entity.

6. According to Art. 29.8 of the Code of Administrative Offenses of the Russian Federation, when considering a case, a collegial body draws up a protocol on the consideration of a case on an administrative offense, which must be examined by the court along with other materials of the case on an administrative offense.

By the decision of the Commission on Affairs of Minors and the Protection of Their Rights of the Krasnoselsky Municipal District of the Kostroma Region, S. was found guilty of improper performance of parental duties in raising a minor son and brought to administrative responsibility under Part 1 of Art. 5.35 of the Code of Administrative Offenses of the Russian Federation in the form of an administrative fine in the amount of 200 rubles.

By the decision of the judge of the Krasnoselsky District Court of the Kostroma Region, this decision was canceled, the proceedings on administrative offenses were terminated on the basis of paragraph 2 of part 1 of Art. 24.5 of the Code of Administrative Offenses of the Russian Federation due to the absence of an administrative offense.

The decision of the judge is canceled on the following grounds.

In accordance with paragraph 7 of Part 2 of Art. 30.6 of the Code of Administrative Offenses of the Russian Federation, when considering a complaint (protest) against a decision in a case of an administrative offense, on the basis of the materials available in the case and additionally submitted materials, the legality and validity of the decision made are checked, in particular, explanations are heard from an individual or a legal representative of a legal entity in respect of which a decision was made on case of an administrative offense; if necessary, testimonies of other ‘persons participating in the consideration of the complaint, explanations of a specialist and an expert’s opinion are heard, other evidence is examined, other procedural actions are carried out in accordance with this Code.

In the case under consideration, these requirements of the law were not fully met by the court.

According to Art. 29.8 of the Code of Administrative Offenses of the Russian Federation, when considering a case, a collegial body draws up a protocol on the consideration of a case on an administrative offense, the form and content of which are established by Part.ch. 2 and 3 of this article.

As can be seen from the submitted materials, the court did not request the protocol of the commission on juvenile affairs on the consideration of the case on an administrative offense in respect of S. and the assessment of the decision was given without taking into account the information set out in the protocol on the consideration of the case.

However, the protocol is available and was submitted to the Kostroma Regional Court. Its content, including the explanations and testimonies of the persons who participated in the consideration of the case by the commission on juvenile affairs, testifies to the premature conclusion of the court that the materials of the case on an administrative offense do not contain evidence confirming the failure or improper performance of S. parental duties.

The violation of the procedural requirements of the Code of Administrative Offenses of the Russian Federation committed by the court was recognized as significant, which did not allow a comprehensive, complete and objective consideration of the case, entailing the annulment of the decision of the judge of the Krasnoselsky District Court of the Kostroma Region.

And about. of the Chairman of the Kostroma Regional Court, the protests of the Deputy Prosecutor of the Kostroma Region against the decisions of the judge of the Sharyinsky District Court, issued in respect of S. and M., in cases of an administrative offense under Part 2 of Art. 12.27 Administrative Code of the Russian Federation.

The following has been established.

According to part 2 of Art. 12.27 of the Code of Administrative Offenses of the Russian Federation, leaving by a driver, in violation of the Rules of the Road, the scene of a traffic accident, in which he was a participant, entails deprivation of the right to drive vehicles for a period of one to one and a half years or administrative arrest for a period of up to fifteen days.

By the decision of the justice of the peace, S. was found guilty of committing an administrative offense under Part 2 of Art. 12.27 of the Code of Administrative Offenses of the Russian Federation, and he was sentenced to an administrative penalty in the form of deprivation of the right to drive vehicles for one year and one month.

Disagreeing with this decision, S. filed a complaint with the Sharyinsky District Court.

By the decision of the judge of the Sharyinsky district court, the decision of the justice of the peace was changed, S. was sentenced to administrative arrest on

By the decision of the justice of the peace, M. was found guilty of committing an administrative offense under Part 2 of Art. 12.27 of the Code of Administrative Offenses of the Russian Federation, and she was sentenced to an administrative penalty in the form of deprivation of the right to drive vehicles for one year.

Disagreeing with this decision, M. filed a complaint with the Sharyinsky District Court.

By the decision of the judge of the Sharyinsky district court, the decision of the justice of the peace was changed, M. was sentenced to administrative arrest for one day.

As can be seen from the decisions made in these cases, the judge of the district court agreed with the assessments of the justices of the peace on the presence of an administrative offense under Part 2 of Art. 12.27 of the Code of Administrative Offenses of the Russian Federation, in the actions of S. and M., one by one, on their complaints, changed the decisions of the justices of the peace in terms of punishment, appointing an administrative arrest, respectively, for three and one day.

Meanwhile, in accordance with paragraph 2 of part 1 of Art. 30.7 of the Code of Administrative Offenses of the Russian Federation, based on the results of consideration of a complaint against a decision in a case on an administrative offense, a decision may be made to change the decision, if this does not increase the administrative punishment or otherwise worsen the situation of the person in respect of whom the decision was made.

Administrative arrest by virtue of Part 2 of Art. 3.9 of the Code of Administrative Offenses of the Russian Federation is an exceptional measure of punishment, that is, a more severe punishment than deprivation of the right to drive vehicles.

In addition, in accordance with Part 2 of Art. 3.9 of the Code of Administrative Offenses of the Russian Federation, administrative arrest cannot be applied to pregnant women, women with children under the age of fourteen, persons under the age of eighteen, disabled people of groups I and II, military personnel, citizens called up for military training, as well as to those with special ranks for employees of internal affairs bodies, bodies and institutions of the penitentiary system, the State Fire Service, bodies for controlling the circulation of narcotic drugs and psychotropic substances and customs authorities.

In the materials of the case considered by the judge, there was information that M.-oy had a minor son.

Taking into account the above, the judge of the district court had no legal grounds for changing the decisions of the justices of the peace in terms of the sentence imposed in the form of deprivation of the right to drive vehicles and for imposing a sentence in the form of administrative arrest, therefore, the decisions of the judge of the Sharya district court in these cases were canceled.

Acting Resolutions Chairman of the Kostroma Regional Court dated May 22, 2014, cases No. 7-60, 7-61

1. By the decision of the qualification board of judges of the Kostroma region of June 26, 2014, the presentation of the chairman of the Kostroma regional court Ivanov V.S. was satisfied, for committing a disciplinary offense in the consideration of the above cases of administrative offenses against the judge, deputy chairman of the Sharyinsky district court of the Kostroma region F.I. O. imposed a disciplinary sanction in the form of a warning.

2. It seems that if the judge comes to the conclusion that it is necessary to appoint an administrative arrest, then when deciding on its term, it is necessary to take into account the provisions of Art. 1.2 of the Code of Administrative Offenses of the Russian Federation and determine whether the clearly short terms of administrative arrest (several days of arrest) will allow in each specific case to solve the task of the legislation on administrative offenses - the prevention of administrative offenses.

Federal Law No. 313-f3 of November 25, 2013 “On Amendments to Certain Legislative Acts of the Russian Federation” supplemented Article 4.1 of the Code of Administrative Offenses of the Russian Federation with part 2.1, according to which, when imposing an administrative penalty for committing administrative offenses in the field of legislation on narcotic drugs , psychotropic substances and their precursors to a person recognized as a drug addict or consuming narcotic drugs or psychotropic substances without a doctor's prescription, the court may impose on such a person the obligation to undergo diagnostics, preventive measures, drug addiction treatment and (or) medical and (or) social rehabilitation in connection with the consumption of narcotic drugs or psychotropic substances without a doctor's prescription.

In this regard, the attention of the judges is drawn to the fact that since the specified duty is not classified by Chapter Three of the Code of the Russian Federation on Administrative Offenses as types of administrative punishment, it can be imposed regardless of the absence of an indication of this in the articles of the Special Part of the Code of the Russian Federation on Administrative Offenses .

In the presence of the conditions provided for by Part 2.1 of Article 4.1 of the Code of Administrative Offenses of the Russian Federation, it is necessary in decisions on the imposition of an administrative penalty to make a reasoned decision to impose or refuse to impose this obligation on the person in respect of whom

Letter from Chairman Kostroma

No. 01-10ADM to the chairmen of the district courts of the region

The Supreme Court of the Russian Federation indicated that administrative liability under Art. 19.5 of the Code of Administrative Offenses of the Russian Federation occurs for failure to comply in time with a legal order (decree, presentation, decision) of the body (official) exercising state supervision (control), municipal control, therefore, when considering cases of this category, the courts must check and evaluate the legality of this order (decree , representations, solutions).

Rulings of the judge of the Supreme Court of the Russian Federation dated July 4, 2014, case No. 34-AD 14-3; dated July 7, 2014, case No. 18-AD-14-23.

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