To suppress administrative misconduct, a mandatory law-enforcement measure is the opening of proceedings in the case of an offense. This segment of law enforcement is more relevant to the competence of representatives of law enforcement agencies. In the process of performing official duties, the official identifies the offender, draws up a protocol and ensures further consideration of the case in accordance with the legislative framework of the Russian Federation. In addition, the law enforcement officer has the responsibility to monitor the implementation of the decision. But before bringing the violator to administrative responsibility, it is important to prove his guilt. If this principle is not observed, it is impossible to consider a person guilty.
What is administrative misconduct: definition
From the moment of administrative proceedings to its final completion, one cannot do without fulfilling the chain of necessary procedural actions. The very production of administrative cases is a vivid example of legal relations carried out in the framework of their public review and adoption of specific decisions on them, up to the application of methods of pecuniary punishment or arrest.
First of all, it is necessary to understand in detail the basic terms of the administrative-procedural law. To avoid an ambiguous interpretation, refinements require fundamental concepts. An administrative offense is defined as any unlawful act or omission, for the commission of which the administrative responsibility is provided for by the perpetrator of the law. In the context of administrative legislation, a violator can be either an individual or a legal entity, a state body, a public association, etc.
The concept of an administrative offense, containing the key “action” and “inaction”, can be designated by a single term - “act”. Regardless of the form of behavior of the offender, active (action) or passive (inaction), the offense committed by the guilty person entails the appointment of legal liability measures.
Signs of administrative offenses
The main signs of an administrative offense will help distinguish an illegal act of an administrative nature from an offense for the commission of which there is no legal liability. These include:
- Antisociality - the action or inaction of the guilty person is harmful to the interests of society, individual citizens or the state.
- Wrongfulness - when committing an administrative tort, the norms of certain legal branches are automatically violated, protected by measures of administrative legal responsibility.
- Guilty - at the legislative level, misconduct is considered if the person is guilty (there is intent or negligence) who committed an administrative offense.
- Punishment is an integral sign of legal tort, which can be recognized as an administrative offense only if there is a prescribed measure of responsibility for its commission.
In order to determine the degree of guilt of the offender and assign him an appropriate measure of responsibility, administrative proceedings must go through a series of mandatory, successive procedures. The first step towards justice and the establishment of unlawful acts is the initiation of proceedings. This stage is regulated by a section of the Code of Administrative Offenses of the Russian Federation (CAO RF), its beginning is considered to be the moment the tort is revealed, and the end is the transfer of documents in the case to an official authorized to take further procedural steps.
In what cases is an administrative offense case opened?
At the stage of the initiation of proceedings relating to the administrative legal industry, great importance is attached to its reasons. The reasons for initiating a case of an administrative offense are procedures that are carried out in order to establish a picture of events, create an evidence base, record an offense and determine its qualifications.
The list of reasons for initiating a case of administrative jurisdiction is very impressive. In accordance with the Code of Administrative Offenses of the Russian Federation, the following legal actions serve as the basis for the opening of administrative proceedings:
- discovery by an official with sufficient competence to draw up a protocol of violation, data and circumstances confirming the commission of an offense;
- receipt from any bodies (including state, local structures, public associations) of materials and data indicating an administrative misconduct, as well as statements from organizations and citizens, coverage of public messages from the media;
- video or photo recording obtained during traffic when fixing an administrative offense, as well as a written confirmation of the owner of the ownership and use of the vehicle by another person at the time of the administrative offense.
Grounds for starting administrative proceedings
The reason for assigning administrative responsibility measures to a person often becomes a statement by the owner, the arbitration manager of the enterprise, the head of the committee of creditors about the existence of circumstances stipulated by certain articles of the Code (for example, Articles 14.12, 14.13, 14.23). Considerable reason for opening production can also be considered the acquisition of legal significance of the decision of the commission of the antimonopoly structure, which helps to establish the fact of an administrative offense referred to in Articles 14.31-14.33 of the Code of the Russian Federation.
At the stage of initiating administrative proceedings, the fundamental importance belongs to the actions of law enforcement agencies aimed at ascertaining the time and place of the incident, detailing the picture of the offense, and identifying the person who committed it. For the procedural stage of opening a case, it is characteristic to implement measures that specify the degree of guilt of the offender and the circumstances surrounding the misconduct. Moreover, the determination of the motives and conditions of the offense is important for bringing the guilty person to legal liability.
At the legislative level, the moment from which the production of an administrative offense can be considered open is described in sufficient detail. Initiation of a case occurs from the moment the act in the case of an administrative offense is drawn up , which most often becomes the protocol for examining the scene of the incident, the protocol on the use of measures to ensure administrative proceedings, etc. An open proceeding is also considered from the date of execution of the decision to institute proceedings on an administrative offense. This procedure is considered mandatory if it is necessary to conduct an additional investigation in order to accurately clarify the circumstances of the incident or to carry out an examination, other procedural measures.
Types of administrative offenses
In the Administrative Code of the Russian Federation with comments (Article 28.7) there are explanations to Art. 28.7, governing the decision-making process on the conduct of an immediate investigation of an administrative offense. This issue is included in the terms of reference of the same official who drew up the decision to institute proceedings. Similar procedural actions also apply to prosecutorial powers. The prosecutor makes a decision to institute an administrative case and orders an additional investigation. By the way, in the same article of the Code it is indicated in case of violation of legal relations in which areas the need for an investigation may arise. They may be misconduct associated with non-compliance with the law in the following industries:
- antitrust;
- licensing, patent;
- advertising and PR marketing;
- conducting elections, referenda;
- regulation and legalization of entrepreneurial profit;
- turnover of drugs, precursors and psychotropic substances;
- turnover of tobacco and alcohol-containing products;
- currency control;
- protection of consumer, related, copyright;
- state regulation of pricing, cost of tariffs for goods and services;
- environmental activities;
- customs and expert control;
- fire safety;
- rules for the operation of vehicles and traffic on the road;
- the provision of services for the needs of federal and municipal significance.
The decision to institute an administrative offense made by an authorized person is accompanied by an explanation to the participants in the proceedings of their procedural rights and obligations, according to the Code of Administrative Offenses of the Russian Federation.
A copy of the document is handed to the injured party and to the person in relation to whom it was drawn up - to an individual or legal entity.
Features of the investigation of administrative proceedings
The investigation is carried out within the time period established by law, on the basis of an act in the case of an administrative offense. It should be noted that the venue for its conduct should be the territory of accomplishment or identification of legal tort. The investigation is carried out by an authorized person, in other cases stipulated by law - by his deputy or other official possessing sufficient competence for this.
The timing of the audit may not exceed 30 days from the date of the decision to institute proceedings on an administrative offense. The established period may be increased by 1 or 6 months upon written request from a person engaged in the production of this case. The decision to extend the time period, drawn up in the form of a determination, is taken by the head of the body or his deputy, a copy of it is handed over against the signature of the parties personally and to the accused.
As soon as the administrative investigation comes to an end, a record is drawn up. If, in its results, there are no grounds for further proceedings, the authorized person shall issue a decision to terminate the proceedings. At the same time, the offender, as well as the victim, is given the opportunity to familiarize themselves with the drawn up protocol, provide explanations, clarify the content and point out inaccuracies in the protocol itself or the documents attached to it about initiating an administrative case.
In some cases, a protocol may be drawn up in the absence of the offender. After the determination is made, a notice of initiation of an administrative case is sent to the participants in the proceedings. If the violator or the injured party does not appear, a copy of the drawn up protocol is sent to the place of their permanent registration no later than three days after the document is completed.
Reasons for canceling administrative misconduct proceedings
To close a case, you must have at least one of the conditions provided by law:
- lack of administrative misconduct;
- incomplete composition of the offense (including taking into account legal capacity, sanity of an individual);
- implementation of a tort by a person under the age of 16;
- the offender had no choice in action;
- issuing an amnesty implying the elimination of punishment;
- termination of the force of a legislative act that secured administrative responsibility;
- expiration of statutory periods for filing a claim.
In addition, if at the same time, on a single fact, criminal and administrative proceedings were conducted, a decision was made to initiate a case, terminate it or impose a measure of punishment, the administrative proceedings are stopped. In the event of the death of the guilty individual, the investigation shall also be terminated.
Drawing up an administrative protocol on the example of an accident
In case of fixed violations of the Rules of the road, including during the unfair operation of the vehicle, which caused damage to the health of the victim, a protocol of inspection of the place of the offense is drawn up. This document is also drawn up if the reason for the violation of traffic rules was the carelessness of the pedestrian or passenger of the vehicle.
During the recording of the scene, the presence of two witnesses is required, the document is prepared without delay and excommunication from the territory of the accident. The protocol itself must contain information:
- about the main signs of an administrative offense;
- on the procedure for the actions of officials, law enforcement officers who compile a protocol for examining the scene of an offense;
- about the quality of the road surface, its condition, the presence on it of the corresponding traffic rules for marking;
- the degree of illumination of the considered road section;
- the adjustability of the intersection where the offense occurred;
- about the presence of malfunctions of a traffic light;
- the lack of priority road signs;
- about other circumstances that are important for the initiation of proceedings.
Administrative Offense Review
During the execution of the protocol, it records that the rights and obligations of persons present during the inspection procedure were clearly explained in accordance with the law. In addition, statements of the participating parties are attached to the inspection protocol, an entry is made about the use of means for photo and video shooting, other permitted methods of fixing the picture of the incident and material evidence.
After drawing up the protocol, the signatures are put at the bottom by the official and the rest present - participants in the procedure for examining the scene of the offense, including witnesses and the culprit of the accident. Copies of the signed protocols are handed to the trespasser, the vehicle manager at the time of the incident. In the case of sending an inspection of the procedural proceedings, which is carried out at the place of direct violation, the need for an administrative investigation disappears by itself.
The Administrative Code of the Russian Federation as amended (Article 28.5) noted that the commission of an offense under obvious conditions is the basis for an audit in the near future. After finding the place of the accident and identifying additional signs of an unlawful act, the inspection is carried out within the time frame allowing to open the fundamentally important circumstances of the case, including information about the offender (individual or organization), if a decision has been made regarding him to institute proceedings on an administrative offense. The audit is carried out within two days from the date of detection of violations.
Completion of the offense
Art. 28.1 of the Administrative Code of the Russian Federation regulates the time of completion of a production audit. When referring a case to an official authorized for further consideration, a protocol on an administrative offense is drawn up. In the event of the closure of proceedings, a ruling on refusal to initiate proceedings shall be issued. According to Art. 28.1 Administrative Code, the reason for refusal is the lack of corpus delicti in the available materials, messages and statements of the case.
It is not necessary to draw up a protocol if the guilty person is brought to administrative responsibility in the form of an oral warning or a fine in the amount of one time the minimum wage, and in case of violation of the customs law - tenfold. The possibility of administrative punishment, providing for the imposition of a measure of responsibility without drawing up a protocol, is recognized as a simplified form of proceedings.
The Code of Administrative Offenses of the Russian Federation with comments describes in detail the mechanism for returning a document to the person who compiled it, if significant defects are present in the protocol. Any inconsistencies must be eliminated by the official within three days, and the amended or supplemented materials shall be returned to the main participant of the administrative offense within 24 hours.