Where should a protocol on an administrative offense be drawn up?

Article 28.2. Protocol on administrative offense

1. Analysis of the rules of Parts 1 and 2 of Art. 28.2 allows us to draw a number of conclusions:

1) a protocol is drawn up about an administrative offense (as a general rule). The following cases are exceptions:

a) the case of an administrative offense was initiated by the prosecutor (the latter makes a decision within the time limits provided for in Article 28.5, see commentary to Articles 28.4, 28.5);

b) the law allows for the imposition of an administrative penalty without drawing up a protocol (for example, when a warning or an administrative fine is imposed for committing an administrative offense, the amount of which does not exceed 100 (in case of violation of customs rules - 1000) rubles. In addition, from 01.02.08 (after the entry into force due to the amendments made to the Code of Administrative Offenses by Law No. 225 dated October 2, 2007), a protocol is not drawn up in cases of administrative offenses provided for in parts 1 and 3 of Article 17.14 and Article 17.15, as well as in cases specified in Part 3 of Article 28.6 ( about this, see the commentary to Articles 28.6, 29.10);

2) information listed in Part 2 of Art. 28.2, must be indicated in the protocol on the administrative offense. In the absence of at least one of them, the protocol (as a procedural document) is devalued);

3) other information may be indicated in the protocol:

a) directly provided for by law (for example, on delivery, see commentary to Article 27.2);

b) although not provided for by law, they do not contradict it and contribute to the correct and timely resolution of the case.

2. Applying the rules of parts 3-6 of Art. 28.2, you need to pay attention to the following circumstances:

1) an individual (personally or his representative authorized by a power of attorney, for example, a defense attorney), as well as a legal representative of a legal entity (see commentary to Article 25.4), in respect of whom a case of an administrative offense has been initiated, must be given the opportunity to become familiar with ( if necessary, with the help of an interpreter, see the commentary on this to Articles 24.2, 25.10) with the protocol on the administrative offense. These persons have the right to submit explanations and comments on the contents of the protocol (they are attached to the protocol if signed by the person who made these comments);

2) the protocol on the administrative offense must also contain a record that all participants in the proceedings have been explained their rights and obligations. The said entry must be certified by the signatures of each participant;

3) the protocol on an administrative offense is signed by the persons specified in Part 5 of Art. 28.2. If an individual, a legal representative of a legal entity, against whom a case of an administrative offense has been initiated, refuses to sign the protocol, the official (who compiled the protocol) makes an entry about this in the protocol and certifies it with his signature;

4) a copy of the protocol on the administrative offense (made and certified by the official who delivered it) is handed over to:

a) an individual (legal representative of a legal entity) against whom a case of administrative offense has been initiated;

b) the victim (see commentary to Article 25.2);

c) if the mentioned persons (at least verbally) asked for such a copy. The fact that a copy of the protocol on the administrative offense was handed over to the mentioned persons is recorded in the protocol on the administrative offense, and the copy itself is handed over to the mentioned persons against receipt;

5) normative acts of federal executive authorities on drawing up a protocol on an administrative offense (for example, order of the Federal Archive of February 18, 2002 N 18) are applied insofar as they do not contradict the rules of Art. 28.2, as well as Art. 28.3, 28.5, 28.8, 29.5 (see commentary to them);

6) in case of failure to appear (despite the fact that they have been duly notified) of the person (or his legal representative) in respect of whom proceedings are being conducted for an administrative offense, it is allowed to draw up a protocol in the absence of such a person. In this case, the person (in respect of whom the protocol was drawn up) must be sent (for example, by mail, by courier, etc.) a copy of the protocol within three days (this period begins from the day following the day the protocol was drawn up). It should be borne in mind that Part 4.1 was introduced into Art. 28.2 by Law No. 210 of July 24, 2007 and came into force on August 11, 2007;

7) about the failure of the above-mentioned persons to appear, an entry about this must be made in the protocol (and this provision came into force on 08/11/07).

3. The Supreme Court of the Russian Federation explained (in paragraphs 4, 5 of post. No. 5) that:

a) a significant drawback of the protocol is the lack of data directly listed in Part 2 of Art. 28.2, and other information depending on its significance for the given case (for example, there is no information about whether the person against whom the case of an administrative offense has been initiated speaks the language in which the proceedings are being conducted);

b) Those shortcomings of the protocol that can be corrected when considering the case on the merits, as well as violations established in Art. 28.5 and 28.8 deadlines for drawing up the protocol and sending it to the judge;

c) when checking the authority of an official to draw up a protocol, one should take into account the provisions of Art. 28.3, as well as regulations of the relevant executive authorities;

d) when returning the protocol to the judge (based on Part 4 of Article 29.4), it is necessary to make a reasoned decision about this.

In addition, the Supreme Court believes that:

- if an administrative suspension of activities can be imposed, then the protocol must indicate the threat of harm or harm caused to protected public legal relations, and how this is confirmed (clause 8 of the Review dated 03.25.09);

- the circumstances that served as the basis for sending the driver for a medical examination for intoxication must be indicated in the protocol on sending for a medical examination for intoxication (Part 4 of Article 27.12) and in the protocol on an administrative offense, as relating to the event of the administrative offense (p 8 Post. No. 18);

- part 2 art. 28.2 establishes that the protocol on the accident also indicates other information (in addition to those listed in Article 28.2 itself - A.G.) necessary to resolve the case (clause 9 of the Review dated 05.28.08).

4. In turn, YOU addressed (in paragraph 17 of post. No. 2) explained the following features of the application of Art. 28.2:

1) art. 28.2 provides a number of guarantees for the protection of the rights of persons against whom a case of an administrative offense has been initiated;

2) the court must verify compliance with the provisions of Art. 28.2 aimed at protecting these rights;

3) violation of these rights may be grounds for refusing to satisfy the authority’s request for administrative liability (under Part 2 of Article 206 of the APC), or for declaring the contested decision illegal and canceling it (under Part 2 of Article 211 of the APC).

5. On the practice of applying Art. 28.2 by courts, see also paragraph 11 of the Post. from 21.11.05.

The procedure for drawing up a protocol on an administrative offense

Who has authority

If the protocol was drawn up by a person who does not have sufficient authority to do this, then the document is simply recognized as invalid - it is recommended that the violator himself monitor this moment, since in the future it may become decisive when making a court decision.

But, any law enforcement officer, when identifying the fact of an offense, can record it in a report, which will subsequently be transferred to persons with sufficient authority.

Who exactly will deal with the matter largely depends on the characteristics of the situation.

In case of non-compliance with traffic rules, the traffic police inspector, who is usually present at each post, is responsible for drawing up the document.

Procedure and rules for registration in 2019

Every year brings new adjustments to procedural norms, so it is important to know the requirements for procedures and registration rules that are relevant in 2019.

The following are considered sufficient reasons by law:

identification by authorized persons of facts of non-compliance with the law;
receipt of information from law enforcement agencies, government services and public institutions confirming the commission of an offense;
registration of a situation where the provisions of the legislative system are ignored on road sections using photo and video recording equipment.

Corresponding messages from ordinary citizens, which contain an indication of a violation, can be used as a basis.

It is not uncommon for vehicle owners to receive notification of a protocol for an offense committed in a region different from their region of residence.

Unable to stay for a long period in the subject of the Russian Federation where the document was drawn up, the violator can petition to transfer the consideration of the case to his place of residence - authorized persons have no right to refuse him this.

The presence of witnesses when drawing up the protocol is not mandatory. But the offender may insist on this.

In this case, the number of witnesses must be at least two. The document indicates their personal information and comments (if any).

Any adult who is not interested in the outcome of the case can act as a witness.

Notice (notice)

The notification procedure is specified in Art. 25.15. Code of Administrative Offenses of the Russian Federation.

According to this article, notification must be sent to persons participating in the case of an administrative offense within the established time frame using:

summons with notification of delivery;
registered letter with return receipt requested;
telegrams;
telephone messages;
other options that ensure the possibility of recording the fact that the offender received a notice.

If the participant in the process proves the fact that there was no notification, all claims from the responsible structures against the citizen can be withdrawn.

Rules for bringing to responsibility

Not all persons ensure compliance with established standards, so it is important for a citizen to know them - only this will help to fully protect their own rights and interests.

In the absence of a face

In the absence of a person who has been identified as having committed an administrative offense, the law allows for the drawing up of a protocol.

A copy of the document must be sent to the violator within three days from the date of registration.

Now this is especially relevant, given the increasing spread of automatic photo and video recording tools.

What next after a violation has been identified?

When establishing the fact of an offense, there may be several options for further events:

the violator has no claims to the content, he bears the due responsibility;
the violator has claims, additional measures are taken, the issue is resolved either by a special commission or in court;
the court decided to impose a punishment, but the offender does not agree with the decision, an appeal is made to higher authorities with additional measures being taken.

In many ways, the development of the situation depends on individual circumstances - the presence of aggravating or mitigating positions can become an element that significantly influences the final result of the case.

Time is a key factor in ensuring compliance with the law - ignoring the established periods gives the offender the right to avoid punishment.

Article 28.5

Art. 28.5 of the Code of Administrative Offenses of the Russian Federation specifies the deadlines for drawing up:

The latter position is further discussed in Art. 27.7 Code of Administrative Offenses of the Russian Federation.

Immediate

A protocol must be drawn up immediately if the official has all the information and materials that confirm the fact that an offense has been committed and can be used to prove the real situation.

When it takes time

The execution of the document may be delayed for up to 2 days if there is a need to clarify information of this nature:

mitigating, aggravating circumstances or positions confirming the minor significance of the violation;
personal information about the offender (individual): passport details, full name, place of work, position, place of registration and actual residence, marital status, presence of dependents, etc.;
personal information about the violator (legal entity): TIN, OKPO, name of the institution, actual and legal address.

The established period is determined by the time spent on sending requests to authorized structures to clarify the above positions.

Preliminary investigation of the circumstances

The preparation period can be extended to 6 months if there is a need to implement the preliminary investigation procedure.

To do this, an application for extension of the standard period is submitted.

Sample document

Contents of the administrative violation protocol:

date and place of compilation;
personal information of the authorized person responsible for registration;
personal information of the guilty citizen;
personal information of witnesses;
a brief but informative description of the administrative offense;
articles of law under which the perpetrator can be held accountable;
explanations of the culprit;
inventory of materials;
a note on clarification of rights and issuance of copies;
signatures of the parties.

As a standard, each authorized employee has a form with the relevant items, so there should be no problems with registration.

Signing procedure and delivery

The protocol must contain the signatures of two persons: the originator and the culprit.

After this, a copy of the document is handed over to the offender and the victim against receipt.

Neither lawyers, lawyers, nor representatives of the party that ignored the law can exercise the right to receive a copy.

Requirements

When registering, all criteria of the Code of Administrative Offenses of the Russian Federation must be met. Primary requirements:

compliance with procedural norms (clarification of rights, adherence to deadlines, admission of witnesses and witnesses);
absence of marks that make it impossible to read the contents of the document;
absence of errors in the personal information of the parties and witnesses.

Every authorized employee is required to know them. It will not be superfluous for ordinary citizens to have up-to-date information.

When applying, deadlines are important.

If they were not complied with by authorized persons, the citizen can avoid imposing punishment, since there was a violation of the procedural order established by law.

Filing a complaint

The key responsibility of the prosecutor's office is to provide supervision over the activities of law enforcement agencies, including the traffic police, courts and police.

A complaint about the incorrect preparation of a protocol on an administrative violation must be sent to this body as soon as possible - before the case materials are transferred to the court.

If there is no response, and the summons has already been received, then at the meeting you will need to re-express your claim, clarifying the lack of response from the prosecutor’s office.

Only written statements are taken into account - oral requests will not bring any results.

For example, if registration took place in the absence of the culprit, then this moment is recognized as a clear violation of the legal rights of the citizen.

Errors that do not prevent further consideration of the case are not taken into account. That is, spelling errors cannot be considered significant.

Exceptions: writing the citizen's last name and first name.

Time of limitation

In case of violation of traffic rules, the time period increases to 12 months.

Initiation of a case

The case is considered open if:

a protocol was drawn up at the scene of the incident;
an act was drawn up on the need to apply cases for this offense;
the prosecutor's office issued a decision to initiate a case on the fact of non-compliance with the law;
the determination of discovery has been clarified to take into account the need for additional investigative measures.

If, after providing all supporting materials, the initiation of a case was refused, the authorized person must justify his decision in writing, sending it to the applicant.

Appealing a court decision

If you disagree with the results of the court’s consideration of the fact of violation of the provisions of the administrative code, you can file a claim with a higher authority.

In order not to waste time, the complaint should be supported by sufficient grounds. You can request a sample from any court.

Drawing up a traffic police report: subtleties

Fines Online > Uncategorized > Drawing up a traffic police report: subtleties

Every driver can break the rules - that's a fact. What to do if you actually committed an offense and were stopped by a traffic police patrol? How can we manage with minimal consequences in this case?

As we have already advised, immediately after stopping, start recording your conversation with the inspector.

If we are talking about a minor offense, suggest that the traffic police officer limit himself to a remark - perhaps you can do without drawing up a protocol. If the inspector does not compromise and is eager to punish the offender, pull yourself together and try to follow our recommendations.

In accordance with Art. 28.1 of the Code of Administrative Offences, not only the official who discovered the offense has the right to draw up a protocol, but also another official authorized to draw up such protocols. Therefore, the inspector who stopped you on the road can hand over to his colleague in the patrol car all the incriminating materials, for example a video recording or a report (Parts 1-2 of Article 28.1 of the Administrative Code). Immediately after this, a protocol must be drawn up.

Rule of law

“An individual or a legal representative of a legal entity against whom a case of an administrative offense has been initiated, as well as the victim, is given a copy of the record of the administrative offense against receipt” (Part 6 of Article 28.2 of the Code of Administrative Offences).

Please note that the inspector who will draw up the protocol must also be a witness to your violation. However, in practice, this requirement is almost never met: one traffic police officer sits in the car and draws up protocols, not paying attention to what is happening on the road, and the second catches violators at this time. If this was the case in your case, be sure to draw the attention of your passengers or other witnesses (we remind you: everything said is already being recorded) to the fact that the inspector did not see your violation, because he was busy drawing up a report on the other driver.

Should I get into a traffic police car when filling out a report?

You have the right to decide this yourself - no one can oblige you. Moreover, if there is a passenger in the car, let him be present during your communication with the inspector as a witness. If you do decide to get into the inspector's car, leave the door or window open so that the witness can hear the entire conversation.

A traffic police officer may invite “outsiders” to leave - here you can remind him that in accordance with Decree No. 2334 of December 31, 1993 “On additional guarantees of citizens’ right to information” (as amended by Decree of the President of the Russian Federation of September 1, 2000 No. 1606) you have the right to have a witness present. The presence of a third party will force the traffic police inspector to think again before saying anything. Moreover, in this way you can avoid punishment even for a minor offense.

Presumption of innocence

In accordance with the principle of the presumption of innocence, government agencies and officials are obliged to prove your guilt.
At the same time, “irremovable doubts about the guilt of a person brought to administrative responsibility are interpreted in favor of this person” (Part 4 of Article 1.5 of the Administrative Code).

Rule of law

“If the administrative offense committed is of minor significance, the judge, body, official authorized to resolve the case of an administrative offense may release the person who committed the administrative offense from administrative liability and limit himself to an oral remark” (Article 2.9 of the Code of Administrative Offenses).

However, in practice, quite often traffic police inspectors, including the inspector who drew up the report, are witnesses in the case. In this regard, the driver’s position in court is so precarious that it has become a subject| saying: “The presumption of innocence is the right of a citizen to prove his innocence in court.” However, how the protocol is drawn up largely determines what punishment you will suffer and whether you will suffer it at all.

Rule of law

A protocol on an administrative offense is drawn up immediately after the discovery of an administrative offense. (Part 1, Article 28.5 of the Administrative Code)

What must be included in the protocol on an administrative offense

Article 28.2 of the Code of Administrative Offenses describes in detail the main details of the protocol on an administrative offense:

date and place of drawing up the protocol;
position, surname and initials of the person who compiled the protocol;
information about the person against whom a case of an administrative offense is being initiated;
information about the person against whom a case of an administrative offense is being initiated;
last names, first names, patronymics, addresses of witnesses and victims (all without exception); • place, time of commission and essence of the offense (the normative act that was violated by you);
an article of the Code of Administrative Offenses or a law that provides for administrative liability for this offense;
explanation of the individual or legal representative of the legal entity against whom the case was initiated;
other information necessary for consideration of the case.

As you can see, the mandatory details of the protocol do not include the date and time of consideration of the case by the traffic police.

This is due to the fact that the specific time is determined at the stage of preparation for consideration of the case, and only inspectors in certain positions have the right to do this, and only for specific articles (positions and articles are listed in Part 2 of Article 23.3 of the Administrative Code).

Perhaps the position of the inspector drawing up the protocol is indicated in this list - then he has the right to combine the preparation of the protocol with preparation for consideration of the offense and immediately set the time for consideration. Otherwise, the traffic police authority will have to notify you of the date and duration of the review at a later date.

Rule of law

When preparing for the consideration of a case of an administrative offense, the following issues are resolved, on which, if necessary, a ruling is made:

1) on setting the time and place for consideration of the case;

2) on summoning the persons specified in Articles 25.1 - 25.10 of this Code, on requesting the necessary additional materials on the case, on ordering an examination.. (Part 1 of Article 29.4 of the Administrative Code)

We write explanations

You have two ways to fill out the Person's Explanations. If you don’t know what to put there yet, just mark: “Disagree.” Later, together with your lawyer, you will figure out which explanations are best to present.

If you can explain your actions in great detail and there is not enough space for your explanations, write them on a separate sheet (preferably as a carbon copy, it should also be in the car), and in the protocol itself in the column “Explanations of the person” write: “I do not agree . Explanations are attached on a separate sheet . But keep in mind - you must be completely confident in your words and actions, because what is written with a pen... When filling out a protocol, never deprive anything of the dictation of a traffic police officer.

If no diagrams or drawings are attached to the protocol, add: . ” As a result, the traffic police will not be able to attach to the protocol diagrams drawn up later with the inscription “The driver refused to sign.” If the plans were drawn up, you have the right to receive a copy. That did not happen? Just write: “A copy of the diagram has not been issued .

Before signing the diagram, write on it: “I do not agree” , because such diagrams are drawn up “by eye”, without reference to the area or respecting the scale. As a result, the error in the distances in the figure can be tens of meters, and this can become important evidence of your innocence.

note

The Code of Administrative Offenses allows traffic police officers to use video recordings to record procedural actions, for example, when detaining a vehicle or examining a driver for intoxication. The only exception is personal search. If procedural actions are carried out using video recordings, there is no need to involve witnesses, and this is recorded in the appropriate protocol or the certificate of examination for alcohol intoxication. Materials obtained during procedural actions using video recordings are attached to the corresponding protocol or inspection report.

Make sure that the inspector enters into the protocol the information of witnesses, for example, our passengers. If the traffic police officer refuses to do this. referring to that. that your passengers are interested parties, enter the witnesses into the protocol yourself, since interest is not a basis for disqualifying a witness. In the explanation column, note that the inspector refused to include witnesses in the protocol. If you are alone in the car and there are no witnesses, put Z in the appropriate column so that later you do not meet unexpected eyewitnesses at trial. We advise you to put Z in all empty columns.

Rule of law

“A person who may be aware of the circumstances of the case that must be established may be called as a witness in a case of an administrative offense. The witness is obliged to appear when summoned by the judge, body, or official who is prosecuting the case of an administrative offense, and to give truthful testimony: to report everything known to him about the case, to answer the questions posed and to certify with his signature in the appropriate protocol the correctness of recording his testimony" ( Parts 1-2 of Article 25.6 of the Administrative Code).

You are in a foreign city or on a long trip

When drawing up a protocol, you can request that the case be considered at the place of registration of the car or at your place of residence - for this purpose, special request forms are used, which are best taken with you. The consideration of the case at the place of registration of the car and at the place of residence of the driver has differences; we will tell you more about them a little later.

Your rights and responsibilities

If, before drawing up the protocol, the inspector did not explain to you your rights and obligations, do not sign in the appropriate place in the protocol, but write “No” or put a dash through. Please note that the inspector’s offer to read your rights on the back of the protocol form is not considered an explanation. If the inspector read the rights from memory or from a piece of paper, you can ask what exactly is included in the list of “other procedural rights”, and also write “I require a lawyer” .

You can demand a lawyer only if the inspector has explained your rights; saying this will help you challenge the decision in court. This document can be written out by the second inspector in the car after reading your notes on the protocol. Please note that the protocol must be drawn up by one inspector, and the order must be issued by another.

Attached are the documents.

The driver has the right to attach any documents to the protocol: his own diagram, testimony of witnesses, petitions, including those to postpone the consideration of the case in the administrative practice department of the traffic police. To ensure that these documents do not get “lost” later, list all attached documents in the protocol. Please note that an experienced inspector can immediately write a refusal to the application in compliance with the form established by Art. 29.12 Code of Administrative Offences. If this does not happen, the driver must wait for written notification of either the denial of the petition or a new date for the consideration of the administrative violation case.

Signing the protocol

Read the protocol carefully, even if the inspector is rushing you and is in a hurry to snatch the document from your hands. Calmly explain to the traffic police officer that such actions are a violation of your legal rights. As you read, correct any information you write incorrectly—the more corrections, the better.

After signing the document, you have the right to pick up a copy of it. If they refuse to give you the protocol, clarify why this cannot be done, because the document has already been drawn up and signed by you and the inspector himself.

Find the words “Explanation of Violator” on the back of the protocol and correct “violator” to “driver”. This way you will officially make it clear that you do not consider yourself guilty. In the words “Signature of the violator”, also replace “violator” with “driver” and only after that put your signature.

And one last piece of advice. Remember, whatever the opinion of the traffic police inspector, your signature on the protocol does not mean at all that you admit your guilt, especially if the protocol itself does not contain the words “I admit the violation . In general, you have the right not to sign the protocol, and if you find that the signature has been forged, you must submit a statement to the prosecutor’s office so that criminal penalties will be applied to the traffic police officer who signed for you.

Drawing up a protocol on an administrative offense

Content:

Proof of the commission of an administrative offense will be the drawing up of a protocol by an official. These offenses are not as socially dangerous as, for example, criminal ones. However, some of them may qualify as such after review of the protocol. It depends on the degree of harm caused and on how the document is drawn up.

It is important to understand here: an administrative protocol is not an admission of someone’s guilt, but a recording of the circumstances of the offense that occurred with a preliminary legislative assessment. If a report has been drawn up against you, and you consider yourself innocent, you do not need to prove your case on the spot. An experienced lawyer will successfully cope with challenging the facts stated by the official. On your part, all you need to do is describe the circumstances of the situation as accurately and completely as possible.

Don't have time to read the article?

When is an administrative protocol drawn up?

The rules and circumstances of drawing up this procedural document are regulated in great detail by Art. 28 clause 2 of the Code of Administrative Offenses of the Russian Federation. It is important to understand that not only the police draw up protocols and register administrative offenses. These could be Rospotrebnadzor authorities, fire departments, tax inspectorates - in short, various government regulatory structures.

A complete list of officials who have the right to draw up a protocol on administrative offenses is given in Art. 28.3 Code of Administrative Offenses (hereinafter). As a rule, this document is drawn up at the scene of the offense. The law allows other drafting options in two cases:

if it is necessary to find out additional information about the participants in the incident or about the circumstances of the case - within 2 days;
if an administrative investigation is carried out - upon its completion.

Based on Art. 28.7, the period for investigating an offense may be extended to six months. Persons involved in the process must be notified of the extension of the drafting period.

How the protocol is drawn up

There is no legally approved form for drawing up a protocol. Each department develops and uses its own template. However, the rules for filling out the forms are the same, regardless of the field of activity of the offender and the official.

Since the circumstances of the administrative offense will be considered on the basis of a written document and punishment will be imposed on the perpetrators, it must be drawn up in as much detail as possible. Therefore, it very accurately indicates the data of the compiler - the authorized person - and everyone involved in the incident. If there are victims or witnesses, their information is also entered into the protocol.

The most important part of the document is the description of the essence of the offense. The authorized person records all the circumstances in detail and at the end of the description provides a list of violated articles of the law.

The protocol provides a separate place for the guilty party to explain the circumstances of the offense or for its version of what happened, in case of disagreement with the official’s version. Additional information from other persons may also be entered: witnesses, colleagues, employees of a direct participant in the incident. The document records a record that the parties have been explained their rights and obligations. The recording is confirmed by the signatures of the parties.

All participants are familiarized with the protocol, who sign the materials contained in the document, recording their accuracy. If any of the participants does not agree with the data, he has the right to express his disagreement in writing. The second copy of the document is handed over to the guilty party against signature.

The protocol is not always drawn up in offices, in a calm, comfortable environment. For example, after an accident, a document is written at the scene of the incident. In such cases, errors are often discovered. If you see incorrectly presented information about an administrative violation, notify the official about this.

Corrections must be made to the text of the document and certified by the signatures of all participants in the events. Any errors in the preparation of the protocol may lead to its cancellation in court and termination of the proceedings. Only spelling and other errors that do not distort information on the case are not considered significant.

Drawing up a protocol of an administrative offense is possible without the participation of the culprit. These are cases when the violator, for example, evades signing. In such situations, it is necessary that guilt be documented. For example, this could be photo or video recording of a traffic accident. Copies of documentary evidence are attached to the protocol. A package of documents is sent to the offender by mail.

Before drawing up and sending a protocol to the culprit, officials send him a notification about the offense or the ongoing administrative check and its results. If there are no facts about the notification of the violator about the execution of the document, this is a violation of his procedural rights.

Do I need to sign a protocol?

Many people, against whom an administrative violation protocol was unfairly drawn up, categorically refuse to sign it. Thus, they make an irreparable mistake. The fact is that refusal to sign, as a general rule, entails an actual admission of guilt. And this automatically implies agreement with subsequent sanctions. In such cases, the authorized person has the right to draw up not a protocol, but a resolution on the case with the imposition of an administrative penalty.

If you refuse to sign, the official will definitely indicate this in the text of the document when drawing it up. And this will be evidence of the legitimacy of his actions. You are given the right to immediately declare disagreement with the above by writing an explanation indicating your position. Subsequently, the administrative case will be dealt with taking into account your testimony.

When a protocol is not needed

Drawing up a protocol is not required when a minor offense has been committed, for which an administrative penalty is immediately imposed: a warning or a fine. In such situations, a decision on the offense and the penalty applied is made on the spot. But if the culprit does not agree with the very fact of the violation or the amount of the penalty, a protocol on the administrative offense is still drawn up.

Automatic recording of a violation made by means of photo or video surveillance does not require drawing up a protocol. The decision on such an administrative violation is sent to the perpetrator by registered mail or in the form of an electronic document - Art. 28.6. clause 3 of the Administrative Code. Cases of administrative offenses initiated by the prosecutor are also formalized without drawing up a protocol - Art. 28.4.

How to protest a protocol

A protocol is a document that contains a description of the violation and the participants in the incident. That is, this is a description of the factual circumstances of the case and one of the evidence of the offense. On its basis, a decision is made to impose administrative liability.

These two documents are the main ones in the administrative hearing. You can appeal the decision itself or the unlawful actions of officials when drawing up the protocol. For example, a ban on introducing objections into the text of a document or a refusal to issue a copy. If the facts stated in the complaint are confirmed, the protocol may be declared invalid.

Drawing up a protocol on an administrative offense: procedure, place. Time limits for drawing up a protocol on an administrative offense

Drawing up a protocol on an administrative offense is the main action that is assigned to the official who identified the relevant fact. The law lists a number of mandatory requirements for the document.

Regulatory regulation

Drawing up a protocol on an administrative violation is regulated by the Administrative Code. In addition to it, the country has a number of other acts affecting administrative proceedings. And only the Code of Administrative Offenses describes the procedures for bringing to justice, in particular the drawing up of a protocol. All other laws adopted at the federal or regional level cannot contradict the code. In particular, provisions on the timing of drawing up a protocol on an administrative offense.

The protocol is not the only document in the case, but it occupies a central place in it. It is its presence that serves as a guide for the judge or body considering the case on what to do.

The definition of what a protocol is is not given by law. The main article dedicated to it is 28.2 of the Administrative Code.

The form of the protocol is approved by bodies related to administrative practice. It is impossible to say that the developed forms of departments differ significantly from each other.

Resolution of the Plenum of 2005 No. 5 is also important; its explanations were issued to help courts and citizens defend their rights.

The approach to cases is affected by the judicial practice that has developed in a particular region.

What is a protocol

Drawing up a protocol on an administrative offense - writing a document by an authorized official. It describes an offense committed by a citizen in the opinion of an official.

How is it formed? The responsible person (policeman or official) is obliged to describe everything in accordance with the provisions of the law, otherwise the court will declare the record unsuitable and the case will be terminated. If a citizen shows ingenuity and knowledge, and also does not refuse complaints to the prosecutor’s office or other higher authorities, depending on the area in which the case is being considered, then the materials have a chance of never reaching the court or the body making a decision on the protocol.

Information included in the protocol

In the protocol forms, the lines to be filled out are signed, and the employee knows how to fill them out. The procedure for drawing up a protocol on an administrative offense provides for the following points:

date and place of compilation;
position (rank), surname and initials of the employee or official;
passport details of the person involved (last name, first name, patronymic);
registration data about the enterprise or organization that is involved;
surnames, names, patronymics of witnesses, their place of residence;
the place and event of the violation, what exactly it consists of;
article of law that serves as the basis for prosecution;
explanations of the person involved;
inventory of case materials;
a note on clarification of rights;
a note on the issuance of a copy of the protocol;
signature of the officials who compiled the protocol;
signature of the person involved, explanation of the reasons for the refusal.

Who is responsible for compiling materials?

The Code of Administrative Offenses describes which bodies and persons have the authority to draw up protocols on administrative violations.

How, for example, do they act if an offense is recorded by a police officer, and the protocol, according to the law, is drawn up by a labor inspector or an employee of another specialized organization, depending on what violation was detected? A person who believes that he has discovered a violation draws up a report or otherwise sends a message to the competent organization. There, a decision is already made to draw up a protocol on an administrative offense.

The proceedings are carried out by an authorized person. He is appointed by order of a higher official or superior. Some officials are directly referenced in the law, in particular, senior traffic police inspectors and heads of government departments. Thus, divisions responsible for administrative practices are formed in police departments; they mainly work with traffic violations.

If the documents are drawn up by a person not appointed to the relevant position, they are considered illegal.

So, if one person started working on the materials, and another continued, although the documents contain a reference to only one of them, this is also considered a violation. Therefore, it is better not to agree to the proposal to draw up a new document.

Place of compilation and consideration

Car owners are faced with the fact that they live in one region, and a protocol is drawn up for them in another. Other citizens encounter similar things, but not so often.

Unable to stay in the region of residence, a person has the right to request that the case be sent to the examination authority at his place of residence. Judges and officials almost never refuse a request.

During the time until the materials are transferred, the citizen will be able to prepare, in particular, find a lawyer who will advise or represent him in court.

We must not forget that the provisions of the law on the place of drawing up a protocol on an administrative offense only give time gain. After all, during the transfer of the material, the time limit for bringing to justice is suspended.

Some nuances

An event is a list of actions performed by the offender. If there is no sufficient description, the offense is not proven. A copy of the protocol is additionally certified by the official and his signature, otherwise it is considered invalid.

The person involved has the right not to give explanations regarding himself and close persons, in addition, to state his comments on a separate sheet of paper. It is necessary to make a note about individual entries in the protocol. And fully describe all the violations that, in his opinion, took place. Then add your signature and date. Lawyers advise crossing out the space free from notes with the letter Z so that unscrupulous officials do not enter their text.

Filing a complaint

The duties of the prosecutor's office include overseeing the activities of government authorities, in particular the police and other control bodies. A complaint to the prosecutor's office about violations of the Code of Administrative Offenses when drawing up a protocol on an administrative offense must be filed as soon as possible, before the protocol with materials is transferred to the commission or court. This institution will be forced to respond.

If there is no response from him, then after receiving a summons to court or to a commission meeting, you must also send all your objections to them, simultaneously reporting a complaint to the prosecutor’s office, to which there was no response.

Submission of a complaint to the chief of police or other official who can influence the matter must be made exclusively in writing. Oral statements that are not recorded anywhere will not bring any results.

How is the procedure performed?

The procedure for drawing up a protocol on an administrative offense obliges authorized persons to act immediately. Its writing is marked by law as one of the moments of the beginning of proceedings in the case.

As reasons, the code specifies statements from citizens and organizations, detection of violations by other bodies, officials, messages received, in particular, from the media. Not long ago, shooting from cameras located along roads was added to the list.

In most cases, documents are drawn up at the scene of the incident, otherwise the report must be sent to the guilty party by mail.

Are officials limited in time?

What does the law say about the timing of drawing up a protocol on an administrative offense? There are 3 options:

immediately;
no later than 2 days;
after completion of the administrative investigation.

The first option is typical for motorists and other categories of citizens whose actions do not require a lengthy documentation process. For example, there is no need to conduct an examination, property assessment, or other actions.

Compilation may be postponed for two days to clarify any details or information that is important.

An investigation is carried out if so stated in the law. It is carried out by an official preparing documents for a commission or court.

He is also responsible for sending a notification about drawing up a protocol on an administrative offense.

Activities are carried out within a two-month period from the moment of detection or commission, including proceedings before the commission. For cases where the decision is made by the court, 3 months are given.

Exceeding the statute of limitations makes the compilation of materials pointless, and the case is terminated automatically. In practice, termination is formalized in commissions or courts.

Errors in compilation

The specified list of points in Art. 28.2 of the Code of Administrative Offenses is mandatory; inaccuracies or violations in relation to them lead to the recognition of the protocol as inadmissible evidence.

For example, the document was drawn up without the presence of the guilty person and there is no reliable information about the explanation of his rights and obligations. Such things are considered a significant violation of the rights of a citizen.

When officials draw up a protocol on an administrative offense, corrections are certified by their signatures.

As stated above, a citizen has the right to make comments, stating them separately.

All errors that are not considered significant do not interfere with the further progress of the matter.

For example, spelling errors, with the exception of the spelling of a person's last name and first name. Similarly, judicial practice evaluates the use of citizens’ initials, and not their full name and patronymic.

Is there always a protocol?

Drawing up a protocol in a case of an administrative offense is mandatory, except in situations where:

the violation does not pose a great danger;
a warning or fine is issued, and the citizen agrees with it;
a decision is immediately made on the case.

If the person involved does not agree with the claims, a protocol is drawn up and a case is formed in the general manner.

Conclusion

The protocol is the main document in the case, not counting the exceptions expressly indicated in the law, and the way it is drawn up affects the outcome of the case. The active participation of a citizen - his refusal to agree with illegal actions, the use of legal rights, will force officials or police officers to retreat or increase the chances of winning in court. You should not rely only on their goodwill or advice, in particular, traffic police officers.

Victory in a number of cases can only be achieved in the Supreme Court of the country, having gone through all instances.