For an administrative offense , the legislation provides for a penalty - a fine or other sanction. This niche is considered the most ambitious and diverse in the system of legal liability. The norms allow the review of decisions and acts in such cases. Let us further consider the time limits for appealing a decision on an administrative offense. A sample statement of contestation of sanctions will also be presented in the article.
General calculation procedure
The legislation establishes the points at which the time limits for appealing an administrative offense decision begin and end . Administrative Code in Art. 4.8 refers to the Code of Civil Procedure. The said norm states that the procedure for calculating periods is similar to that established in Articles 107-108 of the Code of Civil Procedure. The course of the appeal period against the decision on an administrative offense begins on the date following the day it was served in person or when a copy is received. The moment of graduation is 24 hours on the 10th day. If the latter falls on a weekend (holiday), the time period for appealing the decision on an administrative offense ends on the first working day following it.
Specificity of calculus
Analyzing articles 29.11 and 30.3 of the Code of Administrative Offenses, one can formulate this conclusion. The initial moment of calculating the period for challenging the act by an individual in respect of which the proceedings are being conducted by his representative, defense counsel, as well as the victim and the entity representing his interests will not depend on who exactly filed the application. It is determined by the date of receipt by the person in respect of whom this act was issued, a copy of it. If a copy of the document has not been handed over to the subject, held accountable directly on the day of the proceedings in the case due to his failure to appear at the meeting or due to his absence at the time of the announcement of the decision, he shall be sent by registered mail by mail. In this case, the time period for appealing the decision on an administrative offense will begin not from the date of its adoption, but from the moment the citizen in respect of whom the proceedings are taken has taken its copy.
Features of contesting protests by the prosecutor
In determining the beginning of the appeal period in such cases, some problems arise. The main difficulties are caused by 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 prosecuted or by the prosecutor. Some courts, guided by Article 30.10 (Part 1) in conjunction with Art. 30.3 (Part 1), they believe that the countdown for protesting and appealing against a decision should be differentiated depending on the subject applying for the protection of the right. Accordingly, the date of receipt of a copy of the act by the prosecutor is considered to be the moment the period begins. Of course, a certain logic is present in this approach. Here it is necessary to take into account the fact that, according to Art. 29.10, a judge or other official who examined the case on the merits is not required to send a copy of the decision to the prosecutor. Meanwhile, with all the attractiveness of this approach, it cannot be considered legitimate. This is due to the following. The result of differentiation of the term for contestation and protest depending on the subject of the application may be that according to the rules of Ch. 30 Administrative Code from the prosecutor will protest the act in the case of the offense, which entered into force. After all, the document will already be received and executed by the citizen in respect of whom it was issued. Given this, to recognize the possibility of an official to bring a protest to a decision 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 h. 1 cannot be considered successful. Normally, there should be a direct indication that the time period for appealing against an administrative offense decision is 10 days from the date of delivery / receipt of a copy of the act by the citizen in respect of whom the case was conducted.
Controversial moment
Meanwhile, a number of authors consider the above approach not entirely justified. The emergence of the right of appeal is in no way connected with the moment at which the prosecutor became aware of the existence of the document underlying this legal possibility. It is also quite obvious that empowering an official to bring a protest to an act that has not entered into force, regardless of his direct participation in the proceedings, is ineffective and irrational. This is due to the fact that in order to comply with the 10-day time period for appealing the decision on an administrative offense , a person entitled to file an application can only when the proceedings were instituted by the relevant prosecutorial act and the citizen was present at the hearing.
The nuances of the law
In accordance with Art. 30.9, decisions on cases of offenses made by officials or decisions of higher officials on complaints of such acts may be challenged in court. The application is filed at the address of the claim. If this does not bring the desired result, the complaint is sent to a higher court within the time period fixed by Art. 30.3 Administrative Code. That is, the application can be submitted no later than 10 days from the date of receipt by mail / personal delivery of a copy of the disputed act. It follows from the above that, in a sequential appeal, the calculation of the term will be carried out from the moment the last decision is made. Accordingly, quite a lot of time can pass from the date of delivery of a copy of the act on the case to the subject to liability until the day it is addressed to the court. The length of this period will depend on the number of higher bodies.
What is the deadline for appealing a decision on an administrative offense if it is not received?
In practice, there are cases when a copy of the act sent to the place of residence / location of the citizen, brought to justice, is returned to the authority or official, with a note on the notice of the absence of the subject at this address, his evasion of the document or the end of the storage period correspondence. How in such cases is the time calculated to appeal the decision on an administrative offense? The statute of limitations in such situations should be determined taking into account the recommendations of the Armed Forces. Mail forwarding is regulated by the Procedure for the provision of communication services, approved by the Government on April 15. 2005, the Rules in clause 22 stipulates that the sender shall indicate the exact addresses (of his and the recipient) on correspondence. This gives the ground for the Armed Forces to conclude that the implementation of this provision indicates the adoption by the official or authority that issued the decision, as well as the liaison office, of all the necessary measures for sending and the proper delivery of a copy of the act to the citizen. Guided by this, the Supreme Court indicates the following. If a copy of the administrative act certificate sent to the citizen held liable by registered letter was not delivered due to his absence at the address or due to his avoidance of acceptance, then the date the document takes effect will be considered the day it is returned to the authority or official, made it. This calendar number is indicated on the letter itself. By decision No. 5 of March 24, 2005, the Sun clarified its position. In particular, it was explained that such an act would enter into force at the end of 10 days after the day the copy was returned to the appropriate authority.
What to do if the deadline for appealing an administrative offense order has been missed?
First of all, it is worth saying that the established period for submitting an application cannot be reduced. But if for some reason the citizen did not have time to meet the allotted time, it is allowed to restore the time limit for appealing the decision on an administrative offense . To do this, the person concerned sends the application to the authority considering the case. In accordance with Art. 30.3, the time limits for appealing a court order on an administrative offense are not considered preventive. If the entity has not had time to send its claim, he can write a request for the return of the unused period. The issue regarding the restoration of the term is within the competence of the official authorized to examine the merits of the complaint. This circumstance should be taken into account, given that, according to general rules, a claim is filed with the same authority whose employee issued the impugned 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. If the deadline for appealing the decision on an administrative offense has been missed , then the petition shall be sent simultaneously with the claim for this act. Presentation of these documents can be carried out both at the preparation stage, and directly in the process of considering the application. It depends on whether the application contains reasons for missing the deadline for appealing the decision on an administrative offense . Equally important is the availability of attached evidence confirming the validity of the grounds.
Important point
The decision to refuse to satisfy the application must be made in the form of an independent procedural act - determination. If the answer is yes, the preparation of the relevant document by law is not mandatory. However, in this case, the conclusion of the authorized body (official) on the reasons why the subject did not manage to meet 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 consideration of the complaint is started and the decision to reject the application has not been issued, then the deadline is considered to be restored. Accordingly, it is impossible to terminate the production of a claim due to the fact that the subject did not manage to meet the time allotted by law. This rule is of particular practical importance. There are situations when the complaint was accepted for production. However, having examined the materials on the merits, the authorized person makes a decision to terminate the proceedings in connection with the expiration of the period allotted for contesting or refuses to satisfy the application on this basis.
A special case
In practice, there are cases when a complaint from the subject comes without a request for the restoration of the term. What, then, should an official authorized to review? Is he entitled on his own initiative to restore the term? Let us turn to the letter of the law. The norms do not provide for the right of an authorized instance on its own initiative to restore a term. An official authorized to hear the case makes a decision to leave the application without motion. The act also clarifies the person’s right to file a motion to restore the term. The specified definition, together with the application, is returned to the sender by ordinary letter. If the fact of missing the deadline will be revealed already during the proceedings, the complaint proceedings shall be terminated. About this a determination is made. It, in turn, can be appealed to a higher authority as an act that impedes the further course of the proceedings.
Is it possible to challenge the refusal of the application?
The Code of Administrative Offenses does not expressly provide for such a right. The opportunity to challenge the refusal to satisfy the application is constituted by practice at the initiative of the Supreme Court. The Supreme Court rightly believes that the impossibility of appealing against such a decision would violate the right to a defense guaranteed by the Constitution, since it is an obstacle to the further progress of the case. Meanwhile, in practice, the issue of contesting such refusals has not been finally resolved. Having confirmed the possibility of appealing against such decisions, the Court did not explain anything about the procedure for its implementation. Here it can be assumed that, as in situations with other definitions that create obstacles to the subsequent progress of the case, the gap that has appeared in the regulatory system can be filled by the procedural analogy of Ch. 30. Its use can ensure the implementation of key guarantees of the rights of a citizen held liable.
Statement content
Above, the time period for appealing the decision on an administrative offense was considered. The traffic police quite often draws up such acts on drivers. However, they are not always, according to citizens, legal. Accordingly, there is a need to challenge them. In such situations, a general 10-day period for appealing against an administrative offense ruling applies . The traffic police is one of the bodies authorized to conduct the proceedings of claims of entities. For the application to be considered, it must be correctly written. The complaint must include:
- The name of the body to which the application is submitted.
- F. I. O. and the position of the employee in whose name the document is addressed.
- The applicant's full name and his contact details.
The text of the application indicates all the circumstances of the incident, provides F. I. O. and the position of the employee who issued the impugned act. The complaint must be signed and contain the date of preparation. A copy of the contested act, as well as other documents referred to in the text, are attached to the application.