Probably, in life, everyone had to compete with the law, whether it was receiving a document, a complaint against the actions of a state body or challenging an adopted legal act. Many associate the concept of “protocol” with the traffic police, since indeed this document most often appears in cases of violations in the field of traffic. In this article we will expand your understanding of this term, as well as provide effective methods of protecting rights, in particular, we will draw up a sample of an objection to a protocol on an administrative offense. First things first.
Protocol - what kind of document?
The concept of this document is enshrined in the Code of Administrative Offenses of the Russian Federation. To put it in your own words, a protocol is an official paper drawn up by an authorized official containing information about the nature of an administrative offense. The specified document should indicate the circumstances of its commission, information about the culprit, witnesses, victims, a specific article of the law regulating liability for violation.
In everyday life, many people who do not have a specialized legal education often say: “appeal of the protocol”. This statement is, of course, incorrect from the point of view of the law, since it is possible to challenge only a decision made on the basis of a study of evidence in the case, including the above document.
The protocol performs only the role of fixing the circumstances of a particular offense. That is why it is impossible to challenge the fact of the presence / absence of source data. At the same time, the culprit has the right to file appropriate objections regarding the information contained in it. We will talk further about how to do this and consider a sample of an objection to a protocol on an administrative offense.
Decision: differences from the protocol
In order not to create confusion in the head, we consider the main aspects of these documents.
A resolution is a legal act that ends the resolution of an administrative case. It contains information about the punishment imposed, if there has been a violation.
In the process of making this final document, all the evidence in the case is examined, the correctness and timing of the production of the Code of Administrative Offenses of the Russian Federation is studied.
The main differences | Protocol | Decree |
Case Study Stage | Start: captures an event and circumstances | End: describes the established facts, punishment is imposed. |
Authorized Persons | Officials | Officials, judges |
Possibility of appeal | Not | Yes |
A copy is issued on hand. | Yes | Yes |
In practice, there are cases when both the decision and the protocol are drawn up at the place of violation. For example, you drive a car without insurance. The traffic police officer can draw up both documents at once and impose a fine as a punishment. In this case, the inspector has the right to draw up reports on administrative offenses and issue decisions simultaneously. If the culprit does not dispute the violation itself and the circumstances of its commission, then the latter can only issue a decision.
What are you entitled to?
When drafting a protocol or decision, the perpetrator and other parties involved must explain the relevant rights and obligations against signature.
In any case, the culprit or his legal representative can familiarize themselves with the above documents, as well as receive copies in their hands.
Be sure to clarify the right to lodge a complaint against an administrative offense order.
By virtue of the articles of Chapter 25 of the Code of Administrative Offenses of the Russian Federation, the culprit, like the victim, enjoy a common set of rights and obligations, namely:
- providing explanations, evidence;
- statement of motions and challenges;
- the right to legal assistance and others.
Case initiation
The reason is usually the detection of signs of an offense at the place of its commission, statements by any persons, messages from law enforcement agencies, the media, video recording.
A case is considered to be initiated from the moment the protocol, determination (if investigation is required) or decision is made.
When the violation of traffic rules caused harm to life or health, an inspection of the place of an administrative offense is mandatory. The protocol is drawn up immediately.
The Code of Administrative Offenses of the Russian Federation also provides that punishment may be imposed without drawing up a fixing document on the offense. When a warning or penalty is applied, a decision is drawn up immediately.
In difficult situations (antitrust, insurance, patent and other legislation), an administrative investigation may be appointed. The term is 1 month, it can be extended. At the end, a protocol is drawn up to identify a violation or the proceedings are terminated.
Further, the consideration of the case of an administrative offense is conducted in a general manner.
The timing
In these cases, the question of time is very important.
So, the protocol must be drawn up immediately at the scene of the offense. If missing information is required, this process can be delayed for up to 2 days.
If the protocol is drawn up in your absence subject to proper notice, a copy of it must be sent to you within 3 days.
The total period of consideration of the case is 15 days, in court - 2 months, with the exception of certain categories of cases (for example, in the field of suffrage).
Structure
So, the objections to the protocol and the complaint against the decision on an administrative offense should be built competently and logically. The text of these documents usually contains the following components:
- heading: indication of the authority / official to whom the paper is addressed; Name and contact details of the person submitting it;
- main part: reference to the appealed document with its details, briefly the circumstances of the case, the essence of the offense, the reasons for the disagreement and the arguments based on the law;
- petitioner: clear requirements in accordance with legal regulations;
- Appendix: additional documents (if necessary).
This does not mean that your document must necessarily strictly comply with the above structure. Suppose, in the objections to the protocol, a clear petition is often missing, since the general point of view of the guilty person is described.
A competent sample of objections to the protocol on an administrative offense is given below.
The form
We proceed to a more detailed study of the rules for compiling the above documents.
As an example, we consider the objections to the protocol on an administrative offense of Rospotrebnadzor.
To the Office of Rospotrebnadzor in the Ivanovo region from an individual entrepreneur Smirnova V.V. TIN address tel. Objections 12/01/2012 in respect of me, an employee of the Office compiled a protocol under part 1 of article 14.4 Administrative Code for the sale of goods of inadequate quality. I do not agree with the alleged offense, I believe there is no offense event. The expired goods were not in the window, but were put away in a specially designated place for subsequent disposal, so the buyer was physically unable to put these goods in his basket and, accordingly, buy them. I ask you to take these circumstances into account when considering an administrative case against me. date Signature |
The basis for this sample was taken objections to the protocol on an administrative offense 14.4 Administrative Code. According to this form, you can make a response to the protocol of any inspection organization, including the Federal Tax Service, the Federal Antimonopoly Service, etc.
The complaint against the decision of the traffic police
To the Novgorod District Court from a person held administratively liable, Kozlova M.M., date of birth address: tel .: A COMPLAINT 02/10/2015 by the inspector of traffic police of the city of Veliky Novgorod Dmitriev P.A. a protocol was drawn up against me that stated that, while driving, I violated the parking rules of clause 13 of the SDA of the Russian Federation, namely, I did not fulfill the requirements of the sign and the rules for stopping or parking the vehicle in places reserved for disabled people, responsibility for this is provided for 2 tbsp. 12.19 Administrative Code of the Russian Federation. A resolution was issued in the case of 02.10.2015, I was sentenced to an administrative fine. I believe that I was unreasonably brought to administrative responsibility, I do not agree with this decision on the following grounds. (The following is a list of reasons with links to legislation). Based on the foregoing, in view of Art. 30.1, 30.2, 30.7 Administrative Code, I BEG: cancel the decision of 02/10/2015; terminate the proceedings. Application: - Copy of complaint.
- Copy of the decision.
- Copy of the protocol.
date Signature |
As you can see, the complaint, in contrast to objections, is built in a strict form with the allocation of the petitioner.
At the same time , the traffic police may appeal the protocol on an administrative offense in the course of the examination of the case on the merits.
Pre-trial appeal
Some people think that with their requirements it is better to go to court right away. But is it really so?
Themis Institute, of course, is the latest and most important authority. However, do not forget about the possibility of a peaceful pre-trial appeal.
In many cases, when officials write a protocol of the offense, this means that further extra-judicial proceedings are pending in the relevant body. In this case, you will be assigned the time and place of the proceedings, where you should definitely come and defend your point of view. All arguments should preferably be written in the form of objections. This should be done on paper rather than verbally, since all materials subsequently may go to court for further appeal.
For reliability, you can make an audio recording of the trial, but before that you need to make an announcement that a record is being made, and indicate data about the equipment. Only in this case can the file be used as evidence in court.
If the above methods did not help you defend your rights, and the decision of the relevant authority was not made in your favor, then it makes sense to go to court.
Trial
There are cases in which the decision is made only by this body (for which sanctions are possible in the form of deprivation of a driver’s license, suspension of activity, administrative arrest, etc.).
Based on the results, the judge imposes a sentence or terminates the proceedings due to exceptional circumstances.
In other categories of cases, final acts are authorized to draw up bodies that identify these offenses (ATS, prosecutor's office, Rospotrebnadzor, tax inspectorates, customs authorities, FAS authorities, etc.). In such cases, the court considers complaints about these decisions as a second instance.
Administrative Code of the Russian Federation provides that the total appeal period is 10 days. If he is lost, then you can apply for reinstatement in court.
The complaint is submitted to the authority that issued the decision. It is he who is obliged to send it within 3 days above the court.
Important note: no state duty is required.
Based on the results of the consideration of the complaint, the court makes a decision, which can also be challenged in a higher court in the same manner.
Exceptional circumstances
If one of the following initial data is present, then the case is not instituted, and the work begun must be stopped at any stage:
- there is no event (for example, there was no accident, and the car was damaged as a result of a stone fall);
- there is no composition (there is no object / subject / objective / subjective side of the violation: the person has not reached the age of 16);
- emergency situation (accident committed to prevent collision with a pedestrian);
- amnesty act on release from punishment;
- termination of the law governing liability for violation;
- the statute of limitations has expired;
- in the event that a fact has already been issued or a criminal case has been initiated;
- the death of the individual guilty / bankruptcy of the legal entity;
- others.
I would like to note that the trial of these cases is a complicated and time-consuming procedure. Whatever sample of objection to the protocol on an administrative offense you might find on the Internet, it is clear that it needs to be processed for the specific circumstances of your case. If difficulties arise, it is always best to seek the help of a professional lawyer.