The decision to initiate a case on an administrative offense. Art. 28.1 of the Code of Administrative Offenses of the Russian Federation. Basic signs of an administrative offense

To prevent administrative misconduct, an obligatory legal measure is the opening of proceedings in the case of an offense. This segment of law enforcement activity is more relevant to the competence of representatives of law enforcement agencies. In the process of carrying out official duties, the official establishes the identity of the offender, draws up a protocol and provides for further consideration of the case in accordance with the legislative base of the Russian Federation. In addition, the law enforcement officer is responsible for monitoring the implementation of the decision. But before it can be brought to administrative responsibility, it is important to prove his guilt. If this principle is not observed, the person can not be considered guilty.

What is an administrative offense: the definition

From the moment of production in the administrative case to its final completion, one can not do without fulfilling the chain of necessary procedural actions. The very production of administrative cases is a vivid example of legal relations carried out within the framework of their public examination and the adoption of specific decisions on them, including the application of methods of pecuniary punishment or arrest.

First of all, it is necessary to understand in detail the basic terms of administrative procedural law. In order to avoid an ambiguous interpretation, refinements require fundamental concepts. An administrative offense is defined as any unlawful act or omission, for which an administrative liability is provided for the guilty person. The violator in the context of administrative law can be both a physical and a legal person, a state body, a public association, and so on. The notion of an administrative offense that holds in itself the key "action" and "inaction" can be designated by a single term - "deed". Regardless of the form of conduct 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

To distinguish the unlawful act of an administrative nature from a misdemeanor, for the commission of which there is no legal liability, the main signs of an administrative offense will help. These include:

• Antisociality - the act or omission of the guilty person harms the interests of society, individual citizens or the state.
• Illegality - when an administrative delict is committed, the norms of certain legal branches that are protected by administrative and legal responsibility are automatically violated.
• Guilty - at the legislative level, the offense is dealt with in the presence of a person's guilt (there is intent or negligence) who committed an administrative offense.
• Penalty is an inalienable sign of a legal tort, which can be recognized as an administrative offense only if there is a prescribed measure of responsibility for its commission.

To determine the degree of guilt of the offender and the appointment of an appropriate measure of responsibility, the production of an administrative case must undergo a series of mandatory, interchangeable procedures. The first stage on the way to justice and the establishment of illegal actions is the initiation of the case. This stage is regulated by the section of the Code of the Russian Federation on Administrative Offenses (the Code of Administrative Offenses of the Russian Federation), its beginning is considered the moment when a tort was discovered, and the completion is the transfer of documents to the authorized person for further procedural steps to the official.

In what cases are administrative proceedings opened in the case of an offense?

At the stage of instituting a case relating to the administrative legal branch, great importance is given to its reasons. Reasons for initiating a case on an administrative offense are the procedures that are carried out to establish a picture of events, create an evidentiary basis, fix an offense and determine its qualification. The list of reasons for initiating the case of administrative jurisdiction is quite impressive. In accordance with the Code of Administrative Offenses of the Russian Federation, the following legal actions serve as the basis for opening administrative proceedings:

• Detection by an official who has sufficient competence to execute a protocol on the violation, data and circumstances confirming the commission of an offense;
• The receipt from any bodies (including state, local structures, public associations) of materials and data indicating the implementation of an administrative offense, as well as statements from organizations and citizens, the coverage of public reports from the media;
• Video or photo recording obtained during road traffic while fixing an administrative offense, as well as a written confirmation of the owner about the ownership and use of the vehicle by another person at the time of the administrative violation.

Grounds for commencement of administrative proceedings

The reason for appointing a person to administrative liability measures is often the statement of the owner, the arbitration manager of the enterprise, the head of the creditors' committee about the existence of circumstances stipulated in separate articles of the Code (for example, Articles 14.12, 14.13, 14.23). A good reason for the opening of production can also be considered to be the acquisition of the legal significance of the decision of the commission of the antimonopoly structure that facilitates the establishment of the fact of an administrative offense mentioned in articles 14.31-14.33 of the Code of the Russian Federation.

At the stage of instituting administrative proceedings, the actions of law enforcement agencies are of fundamental importance, aimed at finding out the time and place of the incident, detailing the picture of the offense, identifying the identity of the person who committed it. For the procedural stage of the opening of the case, it is characteristic to implement measures that specify the degree of guilt of the offender and the circumstances accompanying the misconduct. At the same time, the definition of the motives and conditions of the offense is important for bringing the guilty person to legal responsibility.

At the legislative level, the point at which the production of an administrative offense can be considered open is described in sufficient detail. Initiation of the case takes place from the moment of drawing up an act on the case of an administrative offense, which is most often the protocol for the inspection of the scene of an incident, the protocol on the use of administrative support measures, etc. The production is also considered open from the date of the determination of the initiation of an administrative violation case. 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 the examination, other procedural measures.

Varieties of offenses of administrative jurisdiction

In the Administrative Code of the Russian Federation with comments (Article 28.7), there are explanations to art. 28.7, which regulates the decision-making process for conducting an immediate investigation into an administrative offense. This issue is included in the terms of reference of the same official who made the decision to initiate the case. Similar procedural actions also apply to prosecutorial powers. The prosecutor issues an order to open a case on an administrative offense and orders an additional investigation. By the way, in the same article of the Code it is indicated that if there is a violation of legal relations in which areas there may be a need to conduct an investigation. They may be misconduct associated with non-compliance with legislation in the following sectors:

• Antimonopoly;
• Licensing, patent;
• Advertising and PR marketing;
• Holding elections, referendums;
• Regulation and legalization of business profits;
• Trafficking in drugs, precursors and psychotropic substances;
• Turnover of tobacco and alcohol-containing products;
• Currency control;
• Protection of consumer, related, copyrights;
• State regulation of pricing, the 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;
• Rendering services for the needs of federal and municipal significance.

The decision to initiate a case on an administrative offense, issued 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 given to the injured party and to the person against whom it was drawn up - to an individual or legal entity.

Features of the investigation of administrative proceedings

The investigation is conducted within the timeframe established by law on the basis of an act in the case of an administrative offense. It should be noted that the place for its holding should be the territory of accomplishment or detection of a legal tort. The investigation is carried out by an authorized person, in other cases provided for by law - by his deputy or other official with sufficient competence for this.

The time for conducting the audit can not exceed 30 days from the date of the issuance of the ruling on initiating the case of an administrative offense. The established period can be increased by 1 or 6 months upon a written application from the person engaged in the production of this case. The decision to extend the deadline, drawn up in the form of a decision, is taken by the head of the body or his deputy, a copy of it is handed over to the personally injured and accused parties.

Once the administrative investigation comes to an end, a protocol is drawn up. If, in its results, there are no grounds for further production, an authorized person shall issue a decree on the termination of production. At the same time, the offender, like the victim, is given the opportunity to review the draft protocol, provide explanations, clarify the content and point out inaccuracies in the protocol itself or the documents attached to it to initiate a case of an administrative offense.

In some cases, the protocol can be drawn up in the absence of the person who committed the offense. After the determination is made, the participants in the proceedings are sent a notice of initiation of the case of an administrative offense. If the intruder or the injured party fails to appear, a copy of the compiled report shall be sent to the place of their permanent registration no later than three days after the document is issued.

The reasons for the cancellation of the administrative violation case

To close the case, you must have at least one of the statutory conditions:

• Absence of a fact of administrative misconduct;
• Incomplete composition of the offense (including the ability to act, the sanity of the individual);
• Torturing a person under 16 years of age;
• The intruder had no choice of action;
• The publication of an amnesty, implying the elimination of punishment;
• Termination of the force of the legislative act, which fixed administrative responsibility;
• The expiry of the statute of limitations for filing a claim.

In addition, if at the same time, under a single fact, criminal and administrative proceedings were conducted, a decision was taken to initiate a case, to stop it or to impose a penalty, and administrative proceedings are stopped. In the event of the death of the guilty individual, the investigation is also terminated.

Drawing up an administrative protocol on the example of an accident

For fixed violations of the Rules of the road, including in the case of unfair operation of the vehicle, which entailed causing damage to the health of the victim, a protocol is drawn up for the inspection of the offense site. This document is also made if the cause of the violation of traffic rules is the carelessness of a pedestrian or a passenger of the vehicle. During the recording of the scene, two witnesses are required, the document is drawn up without delay and excommunication from the territory of the accident. The protocol itself should contain the following information:

• On the main features of an administrative offense;
• On the procedure for the actions of officials and law enforcers who make up the protocol of the inspection of the place of the offense;
• On the quality of the pavement, its condition, the presence of the corresponding SDA markings on it;
• The degree of illumination of the road section in question;
• On the controllability of the intersection on which the offense occurred;
• About the presence of traffic lights;
• The absence of priority road signs;
• On other circumstances that are important for initiating a case.

Verification of administrative violation case

During registration of the protocol, a record is made in it that the rights and duties of persons present during the inspection procedure were clearly explained in accordance with the law. In addition, applications of persons-participants are attached to the inspection protocol, an entry is made about the use of funds for photo and video shooting, other permitted ways of fixing the picture of the incident and material evidence.

After drawing up the protocol, the official at the bottom and the others present - participants in the procedure for inspecting the place of the offense, including witnesses and the culprit of the accident. Copies of the signed protocols are handed to the violator, the manager of the vehicle at the time of the incident. In the case of sending a check of procedural proceedings, which is carried out at the site of a direct offense, the need for an administrative investigation is no longer necessary.

In the Code of Administrative Offenses of the Russian Federation with changes (Article 28.5) it was noted that the commission of an offense under obvious conditions is the basis for carrying out an inspection in the near future. After detecting the place of an accident and revealing additional signs of a wrongful act, the inspection is carried out in time, allowing to discover the fundamentally important circumstances of the case, incl. Information about the infringer (natural persons or organizations), if a ruling on initiating a case on an administrative offense has been passed against him. Verification is carried out within two days from the time of the discovery of violations.

Completion of the stage of the initiation of the case of the offense

Art. 28.1 The Administrative Code of the Russian Federation regulates the end of the production audit. When the case is transferred to an official authorized for its further consideration, a protocol on the administrative violation is drawn up. In the event of the closure of production, a determination is made to refuse to initiate proceedings. According to Art. 28.1 of the Code of Administrative Offenses of the Russian Federation, the reason for refusal is the absence of the content of the offense in the available materials, communications and statements of the case.

There is no need to file a protocol if the guilty person is brought to administrative responsibility in the form of an oral warning or a fine in a single amount of the minimum wage, and in case of violations of the customs legislation - in tenfold. The possibility of an administrative punishment, providing for the appointment of a measure of responsibility without drawing up a protocol, is recognized as a simplified type of proceedings.

The Code of Administrative Offenses of the Russian Federation, with comments, describes in detail the mechanism for returning the document to the person who compiled it, in the event of significant defects in the protocol. Any discrepancies should be eliminated by the official within three days, and the changed or supplemented materials return to the main participant of the administrative violation within 24 hours.