Where can you appeal a decision on an administrative offense?

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Appealing a decision on an administrative offense

Who has the right to appeal a decision on an administrative violation?

In accordance with Article 30.1 of the Code of Administrative Offenses of the Russian Federation, a decision in a case of an administrative offense can be appealed by the persons specified in Articles 25.1 - 25.5.1 of the Code of Administrative Offenses of the Russian Federation. That is, the following participants in the proceedings have the right to appeal the decision:

a person against whom proceedings are being conducted for an administrative offense (Article 25.1 of the Code of Administrative Offenses of the Russian Federation);
victim (Article 25.2 of the Code of Administrative Offenses of the Russian Federation);
legal representatives of an individual (Article 25.3 of the Code of Administrative Offenses of the Russian Federation);
legal representatives of a legal entity (Article 25.4 of the Code of Administrative Offenses of the Russian Federation);
defender and representative (Article 25.5 of the Code of Administrative Offenses of the Russian Federation);
Commissioner under the President of the Russian Federation for the protection of the rights of entrepreneurs (Article 25.5.1 of the Code of Administrative Offenses of the Russian Federation).

In accordance with Part 1.1 of Article 30.1 of the Code of Administrative Offenses of the Russian Federation, a decision in a case of an administrative offense made by a judge can also be appealed to a higher court by an official authorized in accordance with Article 28.3 of this Code to draw up a protocol on an administrative offense.

A decision on an administrative offense can be appealed, depending on who made the decision, to a higher body, a higher official, a district court or a higher court (Article 30.1 of the Code of Administrative Offenses of the Russian Federation)

The procedure for filing a complaint against a decision on an administrative offense

In accordance with Part 1 of Article 30.2 of the Code of Administrative Offenses of the Russian Federation, a complaint can be submitted either to a judge, to a body, to an official who made a decision on the case, or directly to a court, a higher body, or a higher official authorized to consider it (Part 3 Article 30.2).

There is no need to pay a state fee when filing a complaint.

Time limit for appealing a decision in a case of an administrative offense

A complaint against a decision in a case of an administrative offense can be filed within ten days from the date of delivery or receipt of a copy of the decision (Article 30.3 of the Code of Administrative Offenses of the Russian Federation).

Part 2 of this article provides for the possibility of reinstating the missed 10-day deadline for filing a complaint. To restore the missed deadline, it is necessary, along with the complaint against the decision, to attach a petition for restoration of the deadline with the obligatory indication of valid reasons for missing the deadline (illness, inability to file a complaint on time due to force majeure circumstances, caring for a seriously ill loved one, etc.). For more information, see the article “Restoring the deadlines for appealing a decision in a case of an administrative offense.”

Decision on the complaint against the resolution

Based on the results of consideration of the complaint, one of the decisions specified in Part 1 of Article 30.7 of the Code of Administrative Offenses of the Russian Federation is made (leave unchanged; change the resolution; cancel the resolution and terminate the proceedings; cancel the resolution and return the case for a new consideration in case of a significant violation of procedural requirements or the need to impose a more severe punishment; cancel the decision and refer the case for consideration according to jurisdiction).

Samples of complaints against a decision in a case of an administrative offense

Complaint against a decision on an administrative offense (made by an official or an authorized body), sample;

Complaint against the decision of the magistrate in a case of an administrative offense, sample;

Complaint against a decision in a case of an administrative offense under Art. 12.24 of the Code of Administrative Offenses of the Russian Federation (the decision to bring to administrative liability in the form of deprivation of the right to drive a vehicle, issued by the district court, is being appealed in the regional court);

Complaint against the decision of the magistrate in an administrative case (Article 12.26 of the Code of Administrative Offenses of the Russian Federation);

Complaint against the magistrate’s decision on bringing to administrative liability under Article 12.26 of the Code of Administrative Offenses of the Russian Federation (refusal to undergo a medical examination)

Complaint against the decision of the magistrate to bring to administrative liability under Part 4 of Article 12.15 of the Code of Administrative Offenses of the Russian Federation (driving into oncoming traffic);

Complaint against a decision on an administrative offense (clause 9.10 of the Traffic Regulations - did not maintain the required lateral interval to ensure traffic safety).

Alexander Otrokhov, Logos Legal Center (Omsk), 04/15/2015.

I share information on how to properly appeal a traffic police decision

It happens that people come to me with a question about how to appeal a traffic police decision. I decided to share this information on my blog. So let's get started.

Drawing up a protocol on an administrative offense and issuing a resolution are the final stages of the proceedings in an accident case. In this case, a decision in a case of an administrative offense is made against a person who has committed violations of traffic rules.

As practice shows, not everyone knows how to appeal a protocol, and that appealing a decision on an administrative offense is one of the guaranteed rights of a citizen. Below I will tell you about the rules for filing a complaint and how to submit it correctly.

Appealing the traffic police decision

Code of Administrative Offenses of the Russian Federation in Art. 30.1 provides citizens with the opportunity to challenge decisions made in connection with the commission of an administrative offense.

Article 30.1. The right to appeal a decision in a case of an administrative offense

1. A decision in a case of an administrative offense may be appealed by the persons specified in Articles 25.1 - 25.5.1 of this Code:

1) rendered by a judge - to a higher court;

2) issued by a collegial body - to the district court at the location of the collegial body;

3) issued by an official - to a higher body, a higher official or to the district court at the place of consideration of the case;

4) issued by another body created in accordance with the law of a constituent entity of the Russian Federation - to the district court at the place of consideration of the case.

1.1. A decision in a case of an administrative offense made by a judge may also be appealed to a higher court by an official authorized in accordance with Article 28.3 of this Code to draw up a protocol on an administrative offense.

2. If a complaint against a decision in a case of an administrative offense has been received by the court and a higher authority, a higher official, the complaint is considered by the court.

Based on the results of consideration of the complaint, a decision is made.

3. The resolution in a case of an administrative offense related to the implementation of entrepreneurial or other economic activities by a legal entity or a person carrying out entrepreneurial activities without forming a legal entity is appealed to the arbitration court in accordance with arbitration procedural legislation.

4. A ruling to refuse to initiate a case regarding an administrative offense is appealed in accordance with the rules established by this chapter.

In the norms of Art. 244 of Order No. 185 of the Ministry of Internal Affairs of the Russian Federation dated March 2, 2009 regulates the right of individuals and legal entities to appeal decisions of state bodies in pre-trial proceedings.

Where can you appeal a decision on an administrative offense?

Home » Judicial issues » Appealing a decision on an administrative offense

Appealing a decision on an administrative offense

The Russian legislative framework provides for the possibility of revising decisions in matters of record keeping regarding administrative offenses by appealing them.

The procedure for appealing an administrative decision on an offense is established by the authorities of first instance, where the case was under consideration, followed by a verdict in accordance with the Code of the Russian Federation on Administrative Offenses (CAO).

Content:

Features of appealing decisions on administrative offenses.
Time limit for appealing a punishment for an administrative offense.
Mitigation of punishment: reasons and rules for filing a petition.
Making a decision to appeal the decision.

Features of appealing decisions on administrative offenses.

The Code of Administrative Offenses determines the circle of persons who have the right to appeal an administrative decision. It could be:

a person involved in the proceedings in this case;

legal representatives of an individual or legal entity (depending on the status of the interested participants in the proceedings);

defender and representative;

person authorized by the President to protect the rights of entrepreneurs.

Appealing administrative decisions does not involve the imposition of a state duty.

Before appealing a decision to impose an administrative penalty, it is advisable to understand the subtleties that exist in this procedure, depending on the fact of its entry into legal force.

A decision that has not entered into legal force can be appealed by means of a written appeal to a judge, body or official belonging to the body carrying out record-keeping on this incident. In addition, the complaint can be addressed directly to the court, a higher authority or its official whose powers relate to its consideration.

Appeals against administrative decisions that are already in force proceed in a slightly different manner.
The appeal is sent directly to the supervisory court. Decisions made on appeals in the procedure of appealing decisions on administrative violations can be appealed by the prosecutor within the established time frame. True, in the case of decisions that have entered into legal force, a protest by the prosecutor is possible only by way of supervision.

In administrative proceedings, a decision prepared by a judge may be subject to appeal in a higher court by an official who has the authority to draw up an administrative protocol.
The ability to challenge such decisions in a higher authority depends on who made the decision being appealed.

There is one more important point. The Administrative Code does not provide for an appeal against protocols drawn up by officials under Article 28.2. Disagreement with the fact of drawing up a protocol on an administrative offense and its content is subject to appeal to a higher authorized person, to the main body or to the prosecutor's office.

At the time a decision is made in a case of an administrative offense by an official (for example, the imposition of a fine by a decision of the traffic police), it can be appealed through a higher authority, a higher official, or by appealing to the district court where the case was heard.
An administrative decision made by a judge is subject to appeal to a higher judicial authority at the place of consideration of the case.
The procedure for appealing episodes of refusal to open proceedings on an administrative offense is set out in the thirtieth chapter of the Code of Administrative Offenses of the Russian Federation.

The result of a decision on an administrative violation of traffic rules may even be deprivation of the right to drive for a certain period. This applies to serious violations. Less significant incidents, such as traveling without a ticket or placing a car on a lawn or area with green spaces under Article 8.25 of the Code of Administrative Offenses, are fraught with a fine, the amount of which will be determined as the circumstances of the case are studied.

Time limit for appealing a punishment for an administrative offense

According to the decision in the case of an administrative violation, the possibility of appealing it within ten days from the date of delivery or receipt of a copy of the decision is legally established. In practice, there are often cases when an appeal occurs after the expiration of the specified period. The law allows for the restoration of a missed appeal period if there is an objective good reason.

In case of illness, the need to care for a seriously ill relative, or other circumstances of force majeure, a petition is attached to the complaint, which sets out the reason for missing the deadline and a request for its restoration.

From the date of receipt of the complaint, three days are allotted for sending it, along with the dossier on the administrative case, to a higher authority, a higher official, or the appropriate court. If the established punishment provides for administrative arrest, the specified period is reduced: the transfer of materials is carried out directly on the day the complaint is received.

Mitigation of punishment: reasons and rules for filing a petition

When an administrative offense becomes a proven fact, in accordance with the law, it is possible to mitigate the due punishment (penalties, penalties or arrest) due to the presence of the following circumstances:

voluntary cessation of illegal actions by the perpetrator;

reporting by the offender himself about the offense until the discovery of illegal actions;

voluntary assistance in conducting the investigation on the part of the perpetrator;

voluntary prevention of consequences (for example, assistance to the victim by the offender);

compensation for damage on your own initiative;

elimination of harm before a decision is made;

a state of affect proven by medical-psychiatric examination;

pregnancy or minority of the perpetrator.

Admission of guilt due to pressure or fear, as well as the cessation of illegal actions by the offender not voluntarily, but due to detention by law enforcement agencies, do not qualify as mitigating circumstances.
To consider the issue of loyalty to the guilty person, a petition for mitigation of punishment for an administrative offense is submitted to the appropriate court.

You can download a sample complaint against a decision on an administrative offense here

This appeal describes the circumstances that allow, in the opinion of the perpetrator, to apply for a reduction in the degree of punishment with specific article-by-article references to the legislation, with the attachment of all documents accompanying the situation and confirming the accuracy of the facts. Here you can formulate a request for the presence of specific witnesses at the court hearing. The header of the petition contains the name and basic information about the judicial body considering the case, information about the judge to whom the petition is addressed, the case number and the title of the petition (“Petition”). At the end there is a list of attached documents, the applicant’s signature with a transcript and the date of preparation (submission) of the document.

Making a decision to appeal a decision

Consideration of the complaint ends with a decision. Possible outcomes of the case could be as follows:

the resolution may be left unchanged;

amended as requested by the petition;

canceled with complete cessation of proceedings in the reconsidered case;

canceled due to the return of the case for a new trial when a significant violation of procedural rules was discovered;

Cancellation of a decision may also be associated with the need to toughen punishment or refer the case to a jurisdictional hearing.

The ubiquity of administrative violations has led to a frivolous attitude of society towards violations of public order and hooliganism. However, this is a violation of the law, and the absence of a criminal record for these episodes does not completely avoid trouble for the offender.

The procedure for appealing a decision on an administrative offense

How to challenge a decision in a case of an administrative offense: entitled persons, appeal in court

Persons who have the right to appeal a decision on an administrative offense are listed in Chapter 25 of Law No. 195-FZ (clause 1 of Article 30.1). These include, but are not limited to:

the person against whom the proceedings are being conducted;
a person who has received property, moral or physical harm from an offense;
representatives of a citizen or organization determined by law participating in the process as a violator or victim;
defender;
representative;
authorized representative under the President of the Russian Federation for the protection of the rights of entrepreneurs.

Based on the results of consideration of the complaint by the judge or the competent authority, a decision or determination is made (Clause 2, 4, Article 30.2 of Law No. 195-FZ).

A complaint sent to the judge, competent person or body who made the decision must be submitted by them for consideration to the relevant judicial body or a higher person/body within 3 days (clause 1 of Article 30.2 of Law No. 195-FZ).

The most common reasons for canceling or amending decisions, taking into account existing judicial practice, are:

incorrect determination of circumstances significant for the resolution of the case (decision of the Volgograd Region Arbitration Court dated September 21, 2015 in case No. A12-26190/2015);
discrepancy between the conclusions of the trial court and the circumstances of the case (ruling of the 3rd Arbitration Court of Appeal dated May 23, 2013 in case No. A33-20118/2012);
violation by the court of substantive or procedural law (decision of the Court of Justice of the Chukotka Autonomous Okrug dated June 22, 2012 in case No. A80-101/2012).

Where to appeal a decision on an administrative offense

The procedure for appealing a decision on an administrative offense stipulates that a decision can be appealed if it is drawn up:

judge - to a higher judicial body;
by a collegial body - to the court of the district level at the location of this collegial body;
official - to a competent person or to an appropriate body having a higher administrative position, or to a district court. For example, an appeal against a decision on an administrative violation of the traffic police , issued by an employee of this body, is sent to the head of the traffic police or deputy head;
by another body formed taking into account the provisions of the laws of the constituent entities of the Russian Federation - to the district court (clause 1 of article 30.1 of law No. 195-FZ).

Complaints against decisions regarding legal entities and individual entrepreneurs made by an authorized body or an arbitration court are considered by arbitration courts, except in cases where these persons are held liable under the Code of Administrative Offenses not in connection with their implementation of entrepreneurial or other economic activities. In the latter case, it is necessary to apply to the courts of general jurisdiction (clause 33 of the resolution of the plenum of the RF Armed Forces of March 24, 2005 No. 5). Thus, when determining jurisdiction, the judge must proceed not only from the subject composition of the participants, but also from the essence of the administrative offense.

If an organization or individual entrepreneur appeals to an arbitration court for an offense unrelated to economic relations, the said body may make a decision to terminate the proceedings due to lack of jurisdiction (determined by the Irkutsk Region Court of Justice dated September 25, 2015 in case No. A19-10860/2015 ). Termination of proceedings by the court in this case is accepted as a reason for reinstating the period of appeal (Resolution of the Supreme Court of the Russian Federation dated April 21, 2014 No. 18-AD14-7).

Filing a complaint against a decision on an administrative offense: term for challenging, form, example and example of a complaint against a decision

The period allotted for appealing a decision on an administrative offense is regulated by Art. 30.3 of Law No. 195-FZ. As a general rule, it is 10 days. The calculation of the period begins from the moment of delivery or receipt of a copy of the decision.

If the time allotted for appealing an administrative offense has been missed, it can be restored by submitting an appropriate petition to a judge or other person authorized to consider the complaint (Clause 2 of Article 30.3 of Law No. 195-FZ). If such a request is rejected, an appropriate determination is made.

A complaint against a decision on an administrative offense must contain the following information:

name and address of the court;
applicant's details (name, residential address);
details of the decision that is subject to appeal (name, number, date);
information about other persons participating in the process;
main part: statement of the essence of the decision made by a judge, official or competent body with references to legal acts; it also sets out the applicant’s own view of the situation, containing reasons for the inconsistency of the court’s conclusions;
motivated request:
- to terminate the proceedings and cancel the existing decision;
- on the annulment of the decision and revision of the case materials due to violation of procedural requirements;
- on the annulment of the decision and the transfer of the case to a new consideration in accordance with the principles of jurisdiction.

Appeal against court decisions on administrative offenses

The concept of “appeal” is not provided for in administrative legislation. This term, used to designate a complaint against a decision on an administrative violation, is also used in judicial practice.

The appeal is signed by the applicant or his lawyer. In the second case, a power of attorney must be attached to the document, authorizing the defender to represent the interests of the person, in particular, to appeal the decision on an administrative offense (sample ).

A complaint against a court decision can be submitted to the court that issued the decision, or directly to a higher judicial authority (clause 3 of Article 30.2 of Law No. 195-FZ).

How to appeal a decision on an administrative offense of the traffic police

A complaint against a decision on an administrative offense by the State Traffic Safety Inspectorate can be filed as prescribed in paragraph 1 of Art. 30.3 of Law No. 195-FZ deadlines. The law does not contain specific requirements for the content of this type of complaint, however, all the provisions provided for in Art. 30.1–30.8 of the Code of Administrative Offences, extend their actions to the specified type of document.

Before appealing a decision on an administrative offense , the applicant must prepare a structured justification for his opinion on the case under consideration with reference to the norms of the Code of Administrative Offenses of the Russian Federation and indicate specific points of the court decision that he considers untenable. Conclusions must be supported by evidence.

An appeal against a decision on an administrative offense issued by the State Traffic Safety Inspectorate can also take place pre-trial (clause 244 of Order No. 185 of the Ministry of Internal Affairs of the Russian Federation dated March 2, 2009).

A complaint against a decision made by the traffic police can be sent to:

by registered mail;
through a personal appeal from a citizen;
in the form of a digital image through public information systems (including through the official website of the traffic police).

A sample application for appealing a decision on an administrative offense of the traffic police can be downloaded from this link.

Thus, an appeal against a decision on an administrative offense, as a general rule, can be made within 10 days from the date of acceptance (transfer) of a copy of such a decision. The content and structure of the complaint are not directly determined by law, however, taking into account judicial practice, it is possible to identify the main points that must be included in each complaint.

Administrative legislation does not officially use the concept of “appeal,” but this term is used quite often in practice (including judicial practice) in a trivial sense.

Article 30.1. The right to appeal a decision in a case of an administrative offense

1. Analysis of the rules of Parts 1 and 4 of Art. 30.1 allows us to draw a number of conclusions:

1) both decisions in a case of an administrative offense (see commentary to Article 29.10) and a ruling refusing to initiate a case of an administrative offense can be appealed. The norms of the Code of Administrative Offenses do not provide for appeals against other types of determinations. In this regard, the question arose: are there any contradictions between the rules of Part 4 of Art. 30.1 (providing for the possibility of appealing only against a ruling refusing to initiate a case on an administrative offense) and Art. 46 of the Constitution of the Russian Federation (that everyone is guaranteed judicial protection of their rights and freedoms, that decisions and actions (or inaction) of state authorities, local governments, public associations and officials can be appealed to the court)? Of course, such a contradiction is obvious: in this regard, it is necessary to be guided by the norms of Art. 46 of the Constitution of the Russian Federation (because it has direct effect, Article 15 of the Constitution of the Russian Federation);

2) decisions in a case of administrative offenses have the right to appeal:

a) a person against whom proceedings are being conducted for an administrative offense (see commentary to Article 25.1);

b) victims (see commentary to Article 25.2);

c) legal representatives of an individual (see commentary to Article 25.3);

d) legal representatives of a legal entity (see commentary to Article 25.4);

e) defenders and representatives (see commentary to Article 25.5).

2. A decision made by:

1) by a judge (for example, a magistrate) - to a higher court (in our case - to a district court);

2) by a collegial body (for example, a commission on the affairs of minors and the protection of their rights) - to the district court at the location of the collegial body. From 01.02.08 (after the amendments made to Article 30.1 by Law No. 225 of 02.10.07 came into force), it was established that the decision made by the bailiff can also be appealed to the district court at the location of the bailiff;

3) by an official - to a higher body, a higher official (for example, if the resolution was adopted by a traffic police officer with a special rank (in the case of an administrative offense provided for in Article 12.1), it is appealed to the head of the traffic police or his deputy (see comment . to Article 23.3) or to the district court at the place of consideration of the case (it is determined according to the rules of Article 29.5, see commentary to it). In practice, the question arises: who decides to which body (the court or a higher body) to file a complaint against a decision in a case of an administrative offense? The person filing the complaint is independently in making a decision on this issue;

4) by another body (i.e. not specified in Articles 23.1-23.63) created in accordance with the law of the constituent entity of the Russian Federation on administrative offenses - to the district court at the place of consideration of the case.

3. Applying the rules of parts 2 and 3 of Art. 30.1, the following must be taken into account:

1) if a complaint in a case of an administrative offense was simultaneously received by both the court and a higher authority, a higher official (and the persons mentioned in Articles 25.1-25.5 have the right to file a complaint with all these authorities), the complaint must be considered by the court. For the timing of its consideration, see the comment. to Art. 30.5;

2) based on the results of consideration of the complaint:

a) the court makes a decision (it must meet not only the requirements of the Code of Administrative Offenses, but also the requirements provided for in the current Civil Procedure Code and Arbitration Procedure Code);

b) a higher body, a higher official also makes a decision (but it is not a judicial act);

3) a decision in a case of an administrative offense committed by a legal entity or an individual entrepreneur is appealed not to courts of general jurisdiction, but to arbitration courts in the manner prescribed by the current APC (see more about this in the book: Guev A.N. Commentary on the APC RF. M.: Publishing house "Examination", 2006).

4. In a letter dated August 20, 2003 N 1536-7/general, the Supreme Court explained that:

1) if the case was considered by a non-judicial body (DL), then its decision can be appealed to the district court, and the judge’s decision - to a higher court. The filing and consideration of a complaint is carried out in the manner established in Art. 30.2-30.9. The possibility of appealing the decision of a judge of a regional or other corresponding court in the same manner is not provided for in the Code of Administrative Offenses, therefore, it comes into force immediately after it is made;

2) if the case was considered by a magistrate or a district court judge, then his decision can be appealed in the manner established by Art. 30.2-30.8 only to a higher court.

On judicial practice of application of Art. 30.1 (as well as Articles 30.2, 30.10) see also paragraphs 30-35 of the Post. N 5) and paragraphs 11, 12 Post. No. 2. See also letter of the Supreme Court of the Russian Federation dated August 20, 2003 No. 1536-7/obshch “Explanations on the procedure for the entry into force of resolutions and (or) decisions in cases of administrative offenses in cases of appeal.”