For an administrative offense inthe 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 appeal against the decision on an administrative offense. Sample a statement on challenging the sanctions will also be presented in the article.
General procedure for calculating
The legislation establishes the moments in which begin and end terms of appeal against the decision on an administrative offense. CAO in 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. The course of the appeal against the decision on an administrative offense begins with the date following the day of his handing in person or receiving a copy. The end moment is 24 hours of the 10th day. If the latter falls on a weekend (holiday), the term of appeal against a decision on an administrative offense 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 an individual who is being prosecuted, his representative, counsel, as well as 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 of his absence at the time of announcement of the decision, he is sent by registered mail by mail. In this case the term of appeal 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
When determining the beginning of the period of appeal in suchthere 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 time 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 must 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 obliged 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 the 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. With this in mind, 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. Normally, there should be a direct indication that the term of appeal against a decision on an administrative offense - 10 days from the date of delivery / receipt of the copy of the act by the citizen, against whom the case was conducted.
Controversial moment
Meanwhile, a number of authorsconsiders not entirely justified. The emergence of the right to appeal is in no 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 clear 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. This is due to the fact that observe the 10-day the term of appeal against a decision on an administrative offense an entity competent to apply with a statement will be able only if the proceedings were instituted by an appropriate prosecutor's act, and the citizen was present during the proceedings.
The Nuances of the Law
In accordance with Art. thirty.9, decisions on cases of offenses committed by officials or decisions of higher officials on complaints against such acts can 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 at the post / personal delivery of a copy of the disputed act. From this it follows that in case of a series of appeals, the calculation of the term will be carried out from the moment of the 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 a long 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 case of non-receipt?
In practice, there are cases when a copy of the act,directed at the place of residence / location of the citizen being brought to justice, shall return to the authority or official, with a note on the notice 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 period of keeping the correspondence. How in such cases is the time calculated for appeal against a decision on an administrative offense? Statute of limitations in such situations should be determined taking into accountrecommendations ВС. 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 correspondent indicates the exact addresses (his and the recipient) on the correspondence. This gives the basis 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 the term for appealing against the decision on an administrative violation is missed?
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 did not manage to keep within the allotted time, it is allowed restoration of the term for appealing against a decision on an administrative offense. For this, the interested person sends the petition to the body considering the case. In accordance with Art. 30.3, the terms of appeal against a court decision on an administrative offense are not considered preclusive.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 under the 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. If the time for appealing against the decision on administrative violation was missed, the application is sent at the same time asclaim to 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 in the petition the deadline for appealing against a decision on an administrative offense. Of no less importance is the availability of the attached evidence, which confirms the validity of the grounds.
Important point
Decision on refusal to satisfy petitionshould be taken 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 subject to recovery, should be reflected in the final decision. Thus, we can conclude the following. If the consideration of the complaint is started 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 on termination of the proceedings in connection with the expiration of the period for challenging the period or refuses on this grounds to satisfy the application.
A special case
In practice, there are cases when a complaint fromsubject without any request for restoration of the term. How, in this case, should an official who is authorized to attend it consider acting? 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 settled. After confirming the possibility of appealing 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 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
Above were considered term for appealing against a decision on an administrative offense. STSI quite 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, a general 10-day term for appealing against a decision on an administrative offense. STSI is one of the bodies authorized to handle claims of entities. In order for the application to be considered, it must be properly compiled. The complaint must be attended by:
- The name of the authority to which the application is submitted.
- Name and position of the employee, in whose name the document is addressed.
- Name and address of the applicant.
The text of the application specifies all the circumstancesincident, is listed FIO and the position of an employee who issued the impugned act. 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.
