The term of appeal against a decision on an administrative offense established by law

For administrative offense , the law provides for a fine or other sanction. This niche is considered the most ambitious and diverse in the system of legal responsibility. Norms allow the revision of decisions and acts in such cases. Let's consider further terms of the appeal of the decision on an administrative offense. заявления об оспаривании санкций также будет представлен в статье. A sample application for challenging the sanctions will also be presented in the article.

General procedure for calculating

The legislation establishes the moments in which the time for appealing against the decision on an administrative violation begins and ends . в ст. CAO in the art. 4.8 refers to the CCP. The said rule states that the procedure for calculating periods is similar to that established in articles 107-108 of the Civil Procedure Code. начинается с даты, следующей за днем его вручения лично либо получения копии. The course of the appeal against the decision on an administrative offense begins on the date following the day of his handing in person or receiving a copy. The end time is 24 hours of the 10th day. заканчивается в первый, следующий за ним, рабочий день. If the latter falls on a weekend (holiday), the term for appealing the decision on an administrative violation ends on the first working day following it.

Specificity of the calculus

Analyzing articles 29.11 and 30.3 of the Code of Administrative Offenses, we can formulate such a conclusion. The initial moment of calculating the period for challenging an act by a natural person, in respect of which proceedings are conducted, by his representative, counsel, as well as by the victim and the subject representing his interests, will not depend on who made the application. It is determined by the date of receipt by the person, in relation to whom this act was issued, of his copy. If a copy of the document is not handed to the subject brought to responsibility, directly on the day of the proceedings in connection with his failure to attend the meeting or because he is not present at the time of announcement of the decision, he is sent by registered mail by mail. будет начинаться не с даты его вынесения, а с момента принятия его экземпляра гражданином, в отношении которого идет производство. In such a case, the term for appealing against a decision on an administrative offense will not start from the date of its issuance, but from the moment of acceptance of its copy by the citizen in respect of whom the proceedings are taking place.

Features of challenging the protests by the prosecutor

In determining the beginning of the appeal period in such cases, there are some problems. The main difficulties are due to the lack of a unified approach to determining the moment of calculating the period - from the date of receipt of the copy by the person brought to justice or by the prosecutor. Some courts, guided by Art. 30.10 (part 1) in connection with Art. 30.3 (Part 1), consider that the counting of the period for protest and appeal of the decision should be differentiated depending on the subject seeking protection of the law. Accordingly, the moment of the beginning of the period is the date of receipt of a copy of the act by the prosecutor. Of course, there is a certain logic in this approach. Here we should take into account the fact that, according to Art. 29.10, the judge or other official who considered the case on the merits is not obligated to send a copy of the decision to the prosecutor. Meanwhile, with all the attractiveness of this approach, it can not be considered legitimate. It is caused by the following. The result of differentiation of the period of challenge and protest, depending on the subject who handles the application, can be that according to the rules of Ch. 30 of the Administrative Code from the prosecutor will receive a protest against the act on the case of an offense, which entered into force. After all, the document will already be received and executed by the citizen, against whom he was pronounced. Considering this, to recognize the possibility of an official to bring a protest to a resolution that has not entered into force from the moment he receives a copy of the act. According to experts, with this approach, the wording of art. 30.3 part 1 can not be considered successful. – 10 суток с даты вручения/получения экземпляра акта гражданином, в отношении которого велось дело. Normally there should be a direct indication that the time for appealing against a decision on an administrative offense is 10 days from the date of handing in / receiving a copy of the act by the citizen in respect of which the case was being conducted.

Controversial moment

Meanwhile, a number of authors consider the above approach to be not entirely justified. The emergence of the right to appeal is not in any way related to the moment at which the prosecutor became aware of the existence of the document that underlies this legal possibility. It is also quite obvious that giving an official authority to protest against an act that has not taken effect, regardless of his direct participation in production, is ineffective and irrational. субъект, правомочный обратиться с заявлением, сможет только тогда, когда производство было возбуждено соответствующим прокурорским актом, а гражданин присутствовал при разбирательстве. This is due to the fact that to observe the 10-day period for appealing against a decision on an administrative offense, a subject competent to apply can only be able to do so when the proceedings were instituted by an appropriate prosecutor's act, and the citizen was present during the proceedings.

Nuances of the Law

In accordance with Art. 30.9, decisions on cases of offenses committed by officials or decisions of higher officials on complaints against such acts may be challenged in court. The application is submitted to the address of the claim. If this does not bring the desired result, the complaint is forwarded to a higher court within the timeframe fixed by Art. 30.3 of the Administrative Code. That is, you can apply not later than 10 days from the date of receipt of a copy of the disputed act at the post / personal delivery. From this it follows that in case of consistent appeal, the calculation of the term will be carried out from the moment of adoption of the last decision. Accordingly, from the date of handing the copy of the act in the case to the subject brought to responsibility, and up to the day of its application to the authority with the application, it may take quite some time. The duration of this period will depend on the number of higher authorities.

What is the time limit for appealing against a decision on an administrative offense in the event of non-receipt?

In practice, there are cases when a copy of the act sent at the place of residence / location of the citizen being brought to justice returns to the authority or official, with a note on the notification of the absence of the subject at the given address, about his evasion from the adoption of the document or about the end of the storage period Correspondence. How in such cases is the time for appealing against the decision on an administrative offense calculated ? в таких ситуациях следует определять с учетом рекомендаций ВС. The limitation periods in such situations should be determined taking into account the recommendations of the Armed Forces. Forwarding of postal items is regulated by the Procedure for Provision of Communication Services, approved by the Government on April 15. 2005 In the Rules in paragraph 22 it is stipulated that the sender shall indicate the exact addresses (his and the recipient) on the correspondence. This gives grounds for the Armed Forces to conclude that the implementation of this provision indicates the acceptance by the official or the authority that issued the order, as well as the separation of communications, of all the required measures for sending and proper delivery of the copy of the act to the citizen. Guided by this, the Supreme Court points out the following. If a copy of the administrative act sent to a citizen brought to justice by registered mail was not handed in due to his absence at the address or due to his evasion from acceptance, the date of entry into force of the document will be the day of his return to the authority or official, Who took it out. This calendar number is indicated on the letter itself. In Decree No. 5 of March 24, 2005, the Supreme Court clarified its position. In particular, it was explained that such an act comes into effect at the end of 10 days after the day of the return of its copy to the relevant body.

What should I do if I missed the appeal period for the decision on an administrative offense?

First of all it is necessary to say that the established period for filing an application can not be reduced. . But if for some reason the citizen has not managed to keep within the allotted time, it is allowed to restore the appeal period for the decision on an administrative offense . For this, the interested person sends the petition to the body considering the case. In accordance with Art. не считаются пресекательными. 30.3, the terms for appealing against a court decision on an administrative offense are not considered to be presumptive. If the subject has not managed to send his claim, he can write a petition for the return of the unused period. The issue concerning the restoration of the term is in the competence of the official authorized to consider the merits of the complaint. This circumstance should be taken into account, taking into account the fact that according to general rules, the claim is submitted to the same body, the employee of which issued the contested act. In the framework of a systematic interpretation of the provisions of Art. 30.2 (part 2) and 30.4 (part 3) allows us to formulate the following conclusion. , то ходатайство направляется одновременно с претензией на данный акт. If the period for appealing against the decision on an administrative violation is omitted , the application is sent simultaneously with the claim for this act. The submission of these documents can be carried out both at the stage of preparation and directly in the process of examining the application. . It depends on whether the reasons given for missing the appeal period of the decision on an administrative violation were included in the petition. Of no less importance is the availability of the attached evidence, confirming the validity of the grounds.

An Important Moment

The decision to refuse to satisfy the petition must be made in the form of an independent procedural act - a definition. If the answer is positive, the execution of the relevant document by law is not mandatory. However, in this case, the conclusion of the authorized body (official) about the reasons why the subject did not have time to meet within the allotted time, and also that the period is to be restored, must be reflected in the final decision. Thus, we can conclude the following. If the consideration of the complaint is initiated and the ruling on rejection of the petition has not been passed, the term is considered restored. Accordingly, to stop the production of the claim due to the fact that the subject did not have time to meet the time allotted for the law, it is impossible. This rule has special practical significance. There are situations when the complaint was accepted for production. However, having considered the materials on the merits, the authorized person makes a decision to terminate the proceedings in connection with the expiry of the period for challenging the period or refuses on this basis to satisfy the application.

A special case

In practice, there are cases when a complaint from a subject comes without a request for restoration of the term. How, in this case, should an official who is authorized to consider it proceed? Is he entitled to restore the deadline on his own initiative? Let us turn to the letter of the law. The norms do not provide for the right of the authorized body to restore the term on its own initiative. The official authorized to hear the case shall make a determination to leave the application without motion. The act also clarifies the right of a person to send an application for restoring the term. The specified definition together with the application is returned to the sender by an ordinary letter. If the fact of missing the deadline is revealed already during the proceedings, the proceedings on the complaint are subject to termination. A definition is made about this. It, in turn, can be appealed to a higher authority as an act that prevents the further course of the proceedings.

Is it possible to challenge a refusal to satisfy a petition?

The CAO does not explicitly provide for this right. The opportunity to challenge a refusal to satisfy a petition is constituted by practice on the initiative of the Armed Forces. The Supreme Court rightly believes that the impossibility of appealing against such a decision will lead to a violation of the right to protection guaranteed by the Constitution, since it is an obstacle to the further movement of the case. Meanwhile, in practice, the issue of challenging such refusals is not finally resolved. Having confirmed the possibility of appealing such decisions, the Court did not explain anything about the procedure for its implementation. Here we can assume that, as in situations with other definitions that create obstacles for the subsequent movement of the case, the gap that appeared in the regulatory system can be replenished by the procedural analogy of Ch. 30. Its use can ensure the implementation of key guarantees of the rights of a citizen held accountable.

Content of the application

The term for appealing the decision on an administrative violation was considered above . достаточно часто составляет такие акты на водителей. The traffic police often makes such acts on drivers. However, not always they, according to citizens, are legal. Accordingly, there is a need to challenge them. In such situations, there is a general 10-day period for appealing against the decision on an administrative offense. является одним из органов, уполномоченных осуществлять разбирательство претензий субъектов. The State Traffic Safety Inspectorate is one of the bodies authorized to handle claims of subjects. In order for the application to be considered, it must be properly compiled. The complaint must be attended by:

1. The name of the authority to which the application is submitted.
2. Name and position of the employee, in whose name the document is addressed.
3. Name and address of the applicant.

In the text of the application, all circumstances of the incident are indicated, the name and surname of the employee and the position of the employee who issued the contested act are listed. The complaint must be signed and contain the date of compilation. The application shall be accompanied by a copy of the disputed act, as well as other documents referred to in the text.