Drawing up an administrative protocol in the absence of the offender

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Article 28.2 of the Code of Administrative Offenses of the Russian Federation. Protocol on administrative offense

Code of the Russian Federation on Administrative Offenses:

Article 28.2 of the Code of Administrative Offenses of the Russian Federation. Protocol on administrative offense

1. A protocol is drawn up on the commission of an administrative offense, except for the cases provided for in Article 28.4, parts 1, 3 and 4 of Article 28.6 of this Code.

2. The protocol on an administrative offense shall indicate the date and place of its preparation, the position, surname and initials of the person who compiled the protocol, information about the person against whom the case of an administrative offense has been initiated, surnames, first names, patronymics, addresses of the place of residence of witnesses and victims, if there are witnesses and victims, the place, time of commission and event of the administrative offense, an article of this Code or the law of a constituent entity of the Russian Federation providing for administrative liability for this administrative offense, an explanation of the individual or legal representative of the legal entity against whom the case was initiated, other information, necessary to resolve the case.

3. When drawing up a protocol on an administrative offense, an individual or a legal representative of a legal entity against whom a case of an administrative offense has been initiated, as well as other participants in the proceedings, are explained their rights and obligations under this Code, which is recorded in the protocol.

4. An individual or a legal representative of a legal entity against whom a case of an administrative offense has been initiated must be given the opportunity to familiarize themselves with the protocol on the administrative offense. These persons have the right to submit explanations and comments on the contents of the protocol, which are attached to the protocol.

4.1. In the event of failure to appear by an individual, or a legal representative of an individual, or a legal representative of a legal entity in respect of whom proceedings for an administrative offense are being conducted, if they are notified in the prescribed manner, a protocol on the administrative offense is drawn up in their absence. A copy of the protocol on an administrative offense is sent to the person in respect of whom it was drawn up within three days from the date of drawing up the said protocol.

5. The protocol on an administrative offense is signed by the official who compiled it, an individual or a legal representative of a legal entity against whom a case of an administrative offense has been initiated. If these persons refuse to sign the protocol, as well as in the case provided for in Part 4.1 of this article, a corresponding entry is made in it.

6. The individual or legal representative of the legal entity against whom a case of an administrative offense has been initiated, as well as the victim, is given a copy of the protocol on the administrative offense against signature.

Return to the table of contents of the document: Code of the Russian Federation on Administrative Offenses (CAO RF) in the current version

Comments on Article 28.2 of the Code of Administrative Offenses of the Russian Federation, judicial practice of application

The Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2005 N 5 “On some issues that arise for courts when applying the Code of the Russian Federation on Administrative Offenses” contains the following explanations:

The judge must determine whether the protocol is drawn up correctly

In order to prepare the case for consideration, the judge must also establish whether the protocol on the administrative offense has been drawn up correctly in terms of the completeness of the investigation of the event of the offense and information about the person who committed it, as well as compliance with the procedure for drawing up the protocol.

What are the significant disadvantages of the protocol?

A significant drawback of the protocol is the lack of data directly listed in Part 2 of Article 28.2 of the Code of Administrative Offenses of the Russian Federation, and other information depending on their significance for a given specific case of an administrative offense (for example, the lack of data on whether the person against whom the case was initiated administrative offense, the language in which the proceedings are conducted, as well as information on the provision of an interpreter when drawing up a protocol, etc.).

What disadvantages of the protocol are minor?

Insignificant are such shortcomings of the protocol that can be corrected when considering the case on the merits, as well as violation of the deadlines established by Articles 28.5 and 28.8 of the Code of Administrative Offenses of the Russian Federation for drawing up a protocol on an administrative offense and sending the protocol for consideration by a judge, since these deadlines are not preemptive, or drawing up a protocol in the absence of a person against whom a case of an administrative offense has been initiated, if this person was duly informed of the time and place of its filing, but he did not appear on time and did not notify of the reasons for failure to appear, or the reasons for failure to appear were considered disrespectful. See for more details paragraph 4 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2005 No. 5.

Administrative liability under the Code of Administrative Offenses of the Russian Federation is possible only for a completed offense

The Code of the Russian Federation on Administrative Offenses provides for the possibility of bringing to administrative responsibility only for a completed offense.

An administrative offense is considered completed from the moment when, as a result of the action (inaction) of the offender, all the signs of an administrative offense provided for by law are present. If, in accordance with regulatory legal acts, the obligation must be fulfilled by a certain deadline, the offense is completed from the moment of expiration of this period (see paragraph 19 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 5).

If the protocol contains an incorrect classification of the offense, the judge has the right to reclassify the act

Despite the obligation to indicate in the protocol on an administrative offense, along with other information listed in Part 2 of Article 28.2 of the Code of Administrative Offenses of the Russian Federation, a specific article of the Code of Administrative Offenses of the Russian Federation or the law of a subject of the Russian Federation providing for administrative liability for an offense committed by a person, the right of final legal qualification of the actions (inaction) of a person of the Code of Administrative Offenses The Russian Federation refers to the powers of a judge.

If, when considering a case of an administrative offense, it is established that the protocol on an administrative offense contains an incorrect classification of the offense committed, then the judge has the right to reclassify the actions (inaction) of the person brought to administrative responsibility to another article (part of the article) of the Code of Administrative Offenses of the Russian Federation, which provides for the elements of the offense, having a single generic object of encroachment, including if the consideration of this case falls within the competence of officials or non-judicial bodies, provided that the imposed punishment does not worsen the position of the person against whom the proceedings are being conducted.

The same procedure can be used to resolve the issue of reclassifying the actions (inaction) of a person when reviewing a resolution or decision in a case of an administrative offense (see paragraph 20 of the Resolution of the Plenum of the RF Armed Forces No. 5).

Clause 17 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated January 27, 2003 No. 2 “On some issues related to the implementation of the Code of the Russian Federation on Administrative Offenses” contains the following explanations:

Contents of the protocol on an administrative offense

The provisions of Article 28.2 of the Code of Administrative Offenses, which regulate the procedure for drawing up a protocol on an administrative offense, provide a number of guarantees for the protection of the rights of persons against whom a case of an administrative offense has been initiated.
In particular, the protocol reflects the explanation of an individual or a legal representative of a legal entity regarding the offense charged (Part 2); when drawing up a protocol, the named persons are explained their rights and obligations, which must be recorded in the protocol (Part 3); these persons have the right to submit explanations and comments on the contents of the protocol, which are attached to this protocol (Part 4).

Rights can be exercised through a representative by proxy or a defender

.. It should be taken into account that the rights belonging to individuals and legal representatives of legal entities on the basis of Article 28.2 of the Code of Administrative Offenses of the Russian Federation can be exercised by them both personally and through a lawyer or another person acting on the basis of a power of attorney (including of a general nature, containing powers to participate in administrative matters) issued by this individual or the legal representative of the legal entity.

Violation of the norms of Article 28.2 of the Code of Administrative Offenses of the Russian Federation may be the basis for concluding that the decision of an administrative body is illegal

When considering a case on bringing to administrative liability or a case challenging a decision of an administrative body on bringing to administrative liability, the court must check compliance with the provisions of Article 28.2 of the Code, aimed at protecting the rights of persons against whom a case of an administrative offense has been initiated, bearing in mind that their a violation may be grounds for refusal to satisfy an administrative body’s demand for administrative liability under Part 2 of Article 206 of the Arbitration Procedure Code of the Russian Federation, or for declaring the contested decision of the administrative body illegal and canceling it (Part 2 of Article 211 of the Arbitration Procedure Code of the Russian Federation).

Failure to appear for the preparation of the protocol

How should an official notify the federal service of a failure to appear for the preparation of a protocol in response to a notification?

The form and procedure for notifying an authority of failure to appear for the preparation of a protocol are not established by law, just as the obligation to notify of failure to appear is not established. In connection with the above, notification of failure to appear for the preparation of the protocol can be done in any form (letter, telegram, fax, etc.).

According to Part 4.1 of Article 28.2 of the Code of Administrative Offenses of the Russian Federation, in the event of failure to appear by an individual, or a legal representative of an individual, or a legal representative of a legal entity in respect of whom proceedings are being conducted for an administrative offense, if they are notified in the prescribed manner, a protocol on the administrative offense is drawn up in their absence. A copy of the protocol on an administrative offense is sent to the person in respect of whom it was drawn up within three days from the date of drawing up the said protocol.

Thus, if there is evidence of notification (notification) of the official about the place and time of drawing up the protocol, the protocol can be drawn up by an authorized person in the absence of the official in respect of whom the proceedings for an administrative offense are being conducted.

The rationale for this position is given below in the materials of the “Lawyer System”.

Code of the Russian Federation on Administrative Offenses

“Article 28.2. Protocol on administrative offense

2. Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2005 No. 5 “On some issues that arise for courts when applying the Code of the Russian Federation on Administrative Offenses”

3. Resolution 18 AAS dated September 29, 2015 No. A34-1275/2015

“In the meaning of parts 3 - 5 of Article 28.2 of the Code of Administrative Offenses of the Russian Federation, the participation of a legal representative of a legal entity in drawing up a protocol on an administrative offense is the right of this person, but not an obligation.

The failure of a person notified of the time and place of drawing up a protocol is not an obstacle to its drawing up, and does not indicate a violation of the protection guarantees provided to this person by the Code of Administrative Offenses of the Russian Federation, and also cannot serve as an obstacle to the implementation by an administrative body of the functions assigned to it to combat administrative offenses ".*

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Are protocols drawn up in the absence of a person legal?

During August, my car was photographed on the lawn five times. I didn’t even see these photos and didn’t know them. A month later, a representative of the city administration called me and invited me to draw up protocols on an administrative violation. I didn't come. He said that they would compose without me. Then a few days later they called again and invited me to a meeting of the administrative commission. I didn't come again. I work far away and have no opportunity to leave work during working hours. Recently I found notifications for some letters in my mailbox. Most likely these are decisions to impose a fine. I haven't received the letter yet. I want to ask you. Are the protocols drawn up in my absence legal? Should I receive these letters? Do decisions made in my absence on the basis of such protocols have legal force? Do I have to pay fines and can I appeal decisions in court? What are the chances of success?

Thank you! Best regards, Vladimir Mishin. Surgut.

Article 28.5 of the Code of Administrative Offenses A protocol on an administrative offense is drawn up immediately after the discovery of an administrative offense.

If additional clarification of the circumstances of the case or information about an individual or information about a legal entity is required in respect of which a case of an administrative offense is being initiated, a protocol on the administrative offense is drawn up within two days from the moment the administrative offense is discovered.

Article 28.2. Protocol on administrative offense

1. A protocol is drawn up on the commission of an administrative offense, except for the cases provided for in Article 28.4, parts 1, 3 and 4 of Article 28.6 of this Code.

2. The protocol on an administrative offense shall indicate the date and place of its preparation, position, surname and initials of the person who compiled the protocol, information about the person against whom the case of an administrative offense has been initiated, surnames, first names, patronymics, addresses of the place of residence of witnesses and victims, if there are witnesses and victims, the place, time of commission and event of the administrative offense, an article of this Code or the law of a constituent entity of the Russian Federation providing for administrative liability for this administrative offense, an explanation of the individual or legal representative of the legal entity against whom the case was initiated, other information necessary to resolve the case.

Thus, the protocol must be drawn up either immediately or no later than 2 days. An invitation to draw up a protocol in a month after detection is already a violation.

If you were not at the scene of the offense, then you must be invited to draw up a protocol in writing and receive a notification that you have been properly notified of this event (telephone does not count). A copy of the protocol must be sent to your address. If, based on the results of consideration of the protocol, decisions on an administrative offense are made, you have the right to appeal them within 10 days from the date of receipt of a copy of the decision.

Drawing up an administrative protocol in the absence of the offender

I. Basic provisions on notification of persons participating in a case of an administrative offense

By virtue of Article 25.15 of the Code of the Russian Federation on Administrative Offenses (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation), persons participating in the proceedings on an administrative offense, as well as witnesses, experts, specialists and translators, are notified or summoned to the court, body or official in the proceedings which the case is pending, by registered mail with return receipt requested, by summons with return receipt requested, by telephone message or telegram, by facsimile or using other means of communication and delivery that ensure the recording of the notice or call and its delivery to the addressee.

This provision is aimed at complying with legal guarantees for the protection of a person brought to administrative responsibility.

The purpose of sending a notification is to notify a person brought to administrative responsibility about the fact of drawing up and signing a protocol on an administrative offense, about the date, time and place of drawing up the said protocol or consideration of a case about an administrative offense in order to provide him with procedural guarantees of the rights of the person in respect of whom administrative proceedings are underway.

Based on Article 25.15 of the Code of Administrative Offenses of the Russian Federation, the notice must indicate the following information:

- about the person to whom such notice is sent;

- address - for a citizen and individual entrepreneur - this is his place of residence, for a legal entity - the location of the legal entity, determined on the basis of an extract from the unified state register of legal entities;

- about the time and place of drawing up a protocol on an administrative offense or considering a case of an administrative offense.

Consequently, the Code of Administrative Offenses of the Russian Federation does not establish requirements for the content of a notice, other than indicating the person to whom such a notice is sent, the address, time and place of drawing up a protocol on an administrative offense (consideration of a case on an administrative offense).

The Plenum of the Supreme Arbitration Court of the Russian Federation in paragraph 24.1 of Resolution No. 10 dated June 2, 2004 “On some issues that arose in judicial practice when considering cases of administrative offenses” (hereinafter referred to as Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 10) explained that the Code of Administrative Offenses of the Russian Federation does not contain reservations about the need to send notice exclusively by any specific means. Consequently, a notification cannot be considered improper only on the grounds that it was carried out in some other way (for example, by sending a telephone message, telegram, by fax or e-mail, or using other means of communication).

It should also be borne in mind that persons who refuse to receive sent materials or who do not appear to receive them despite a postal notification (if there is appropriate evidence) cannot be considered not notified.

Paragraph 6 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2005 N 5 “On some questions that arise for courts when applying the Code of the Russian Federation on Administrative Offenses” contains similar explanations: since the Code of Administrative Offenses of the Russian Federation does not contain any restrictions related to such notification , depending on the specific circumstances of the case, it can be carried out using any available means of communication that make it possible to control the receipt of information by the person to whom it is sent (subpoena, telegram, telephone message, fax, etc., via SMS message, in the case the person’s consent to notification in this way and when recording the fact of sending and delivery of an SMS notification to the addressee).

When resolving disputes about the fulfillment by an administrative body of the obligation to notify an organization when notifying its representative, it is necessary to take into account that the legal representatives of a legal entity are its head, as well as another person recognized in accordance with the law or constituent documents as a body of the legal entity (Part 2 of Article 25.4 of the Code of Administrative Offenses of the Russian Federation) . At the same time, the Code of Administrative Offenses of the Russian Federation allows for the possibility of participation in the consideration of a case of an administrative offense by a person acting on the basis of a power of attorney issued by a duly notified legal representative as a defense attorney. Proof of proper notification of the legal representative of a legal entity about the preparation of the protocol can be the power of attorney issued to him to participate in a specific administrative case. The presence of a general power of attorney to represent the interests of a person without indicating the authority to participate in a specific administrative case is not in itself evidence of proper notification (clause 24 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 10).

Below is an overview of the conclusions of the courts, set out in decisions of specific cases, on the issues of notifying persons participating in the proceedings on an administrative offense, namely:

— disputes about the method of notifying persons participating in proceedings regarding an administrative offense;

- failure/improper fulfillment by an administrative body of the obligation to notify persons participating in the proceedings on an administrative offense:

— failure to comply with the procedure for providing postal services for the delivery and delivery of postal items;

— incorrect notification address;

— shortcomings in the content of notification documents, failure to send and deliver notifications in advance;

— disputes regarding the fulfillment of the obligation to notify an organization when notifying its representative.

II. Conclusions of the courts

1. Disputes about the method of notifying persons participating in proceedings regarding an administrative offense

The Office of the Federal Service for State Registration, Cadastre and Cartography for a constituent entity of the Russian Federation (administrative body) filed a petition with the court to involve the arbitration manager Arslanova L.M. to administrative liability provided for in Part 3 of Article 14.13 of the Code of Administrative Offenses of the Russian Federation, for failure by the arbitration manager to comply with the requirements of paragraph 7 of Article 12, paragraph 4 of Article 13, paragraph 1 of Article 143 of the Federal Law of October 26, 2002 N 127-FZ “On Insolvency (Bankruptcy)”.

The application was granted, and the arbitration manager was sentenced to a fine.

Recognizing that the Office (administrative body) has taken the necessary and possible measures to notify the arbitration manager about the time and place of drawing up a protocol on the commission of an administrative offense, liability for which is established in part 3 of Article 14.13 of the Code of Administrative Offenses of the Russian Federation , and to provide him with the opportunity to exercise the rights and guarantees provided for Article 28.2 of the Code of Administrative Offenses of the Russian Federation , the court proceeded from the fact that when deciding whether there was proper notification of the person about the preparation of the protocol, it should be taken into account that the Code of Administrative Offenses of the Russian Federation does not contain clauses on the need to send notification exclusively by any specific means, in particular, by sending a registered letter with return receipt requested or delivering it directly to the addressee, therefore, the notice cannot be considered improper only on the grounds that it was carried out in some other way (for example, by sending a telephone message, telegram, by fax or email or using other means of communication), and took into account that the notice of drawing up a protocol on an administrative offense was received by a representative of the arbitration manager by proxy, and also sent to the address indicated in the extract from the unified state register of individual entrepreneurs, about the time and the place where the protocol was drawn up, the administrative body notified the arbitration manager and by sending a telegram to the address indicated in the Register, the organization that delivered the telegrams, observing the requirements for the provision of telegraph communication services, repeatedly tried to deliver the telegram to the addressee, but the telegram was not delivered, since the apartment was closed, the recipient of the notification did not show up for the telegram.

The application was denied.

The cassation court, disagreeing with the conclusion of the appellate court, which rejected the arbitration manager’s argument about failure to properly notify of the time and place of drawing up the protocol on the commission of an administrative offense, with reference to the fact that the notification of the date, time and place of drawing up the protocol on the administrative offense management was sent to the arbitration manager by mail, by e-mail, as well as via SMS notification to the arbitration manager’s phone number specified in the bankruptcy case, it established that the notification of the place and time of drawing up the protocol was not sent to the arbitration manager at the place of his registration, that is the administrative body did not comply with the requirements of Article 25.15 of the Code of Administrative Offenses of the Russian Federation ; The information provided by the administrative body from the website of the Russian Post enterprise does not contain information about the delivery as of the date of drawing up the protocol on the administrative offense to the arbitration manager of letters sent by mail.

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Article 28.2 of the Code of Administrative Offenses of the Russian Federation. Protocol on administrative offense

New edition of Art. 28.2 Code of Administrative Offenses of the Russian Federation

1. A protocol is drawn up on the commission of an administrative offense, except for the cases provided for in Article 28.4, parts 1, 3 and 4 of Article 28.6 of this Code.

Commentary on Article 28.2 of the Code of Administrative Offenses of the Russian Federation

1. A protocol on an administrative offense is understood as a document that reflects information related to the fact of the act and characterizing the personality of the offender. A protocol on the commission of an administrative offense is drawn up in all cases, with the exception of those when cases of administrative offenses are initiated by the prosecutor, as well as when an administrative penalty is imposed without drawing up a protocol.

2. Part 2 of Art. 28.2 of the Code of Administrative Offences, the content of the protocol on an administrative offense is determined by law; it must contain the information necessary to qualify an administrative offense and bring the guilty person to justice.

The protocol on an administrative offense shall indicate: the date and place of its preparation, position, surname, first name, patronymic of the person who compiled the protocol, surnames, addresses of witnesses and victims, place and time of the offense, etc.
It is essential to indicate the position of the person who compiled the protocol on an administrative offense, since if the protocol is drawn up by an unauthorized person, it is considered void. ———————————
See, for example: Order of the Federal Customs Service of the Russian Federation dated March 15, 2005 N 198 (as amended on May 6, 2006) “On officials of the customs authorities of the Russian Federation authorized to draw up protocols on administrative offenses and carry out administrative detention”, etc.

3. In order to draw up a protocol to establish the identity of the offender, measures such as delivery, administrative detention, personal search, search of things, vehicles, inspection of premises, seizure of things and documents are allowed.

4. The commented article was supplemented by part 4.1, according to which in the event of failure to appear by an individual, or a legal representative of an individual, or a legal representative of a legal entity in respect of whom proceedings are being conducted for an administrative offense, if they are notified in the prescribed manner, the protocol on the administrative offense is drawn up in their absence, and a copy of the protocol on the administrative offense is sent to the person in respect of whom it was drawn up within three days from the date of drawing up the said protocol.

Another comment on Art. 28.2 of the Code of the Russian Federation on Administrative Offenses

1. Particular importance at the stage of initiating a case of an administrative offense is given to the protocol. A protocol on an administrative offense is understood as a procedural document that reflects information related to the fact of an unlawful act and characterizing the identity of the offender.

Due to the fact that the protocol not only records the stage of initiation of a case of an administrative offense, but also determines the adoption of a decision on the case, the current legislation imposes certain requirements for its preparation and content.

2. In accordance with the Code of Administrative Offenses of the Russian Federation, a protocol on the commission of an administrative offense is drawn up in all cases, with the exception of those when cases of administrative offenses are initiated by the prosecutor (Part 1 of Article 28.4); as well as within the framework of simplified proceedings, i.e. when an administrative penalty is imposed without drawing up a protocol (Article 28.6).

3. The protocol on an administrative offense shall indicate: the date and place of its preparation, position, surname, name, patronymic of the person who compiled the protocol (resolution); information about the person against whom a case of administrative offense has been initiated; names, addresses of witnesses and victims, if any; place, time of commission and event of the administrative offense; an article of the Code of Administrative Offenses of the Russian Federation or a law of a subject of the Russian Federation, a normative act providing for liability for this offense; explanation of the individual or legal representative of the legal entity against whom the case has been initiated, other information necessary to resolve the case.

4. When drawing up a protocol, recording the time of commission of an administrative offense requires an exact indication of the date, month, year.

5. The need to record in the protocol the place where an administrative offense was committed is determined by determining the jurisdiction of the case of an administrative offense.

6. It is important to indicate the position of the person who compiled the protocol on the administrative offense. If a protocol on an administrative offense was drawn up by an unauthorized person, as well as in other cases provided for by this Code, shortcomings in the protocol and other materials of the case on an administrative offense are eliminated within no more than three days from the date of their receipt (receipt) from the judge, body, official considering a case of an administrative offense. The materials of the case of an administrative offense with the amendments made are returned to the specified judge, body, or official within 24 hours from the day the relevant deficiencies are eliminated (Article 28.8).

7. Information about the identity of the violator (last name, first name, patronymic, year of birth, citizenship, place of residence, place of work) is entered into the protocol on the basis of an identification document. In order to draw up a protocol on an administrative offense, if it is impossible to draw it up on the spot, as well as to establish the identity of the violator, delivery, administrative detention of a person, personal search, search of things, vehicles and seizure of things and documents, inspection of the premises of a legal entity, in the manner prescribed by this Code.

8. The details of the protocol also include the names and addresses of both witnesses and victims, if any, which is important for clarifying all issues related to the circumstances to be established in a specific case of an administrative offense.

9. A detailed description of the essence of the offense committed is to determine its legal qualification in strict accordance with the norms of the Special Part of the Code of Administrative Offenses of the Russian Federation or the law of a constituent entity of the Russian Federation, another normative act that provides for administrative liability for the commission of an unlawful act.

10. The protocol on an administrative offense also records the explanations of the offender, which are taken into account when establishing the form of guilt.

The content of the protocol on an administrative offense also includes other information necessary to resolve the case.

11. One of the mandatory requirements when drawing up a protocol established by the commented article is an explanation to an individual or a legal representative of a legal entity, an individual entrepreneur, or other participants in the proceedings of the case of their procedural rights and obligations provided for by this Code, for example, the right to familiarize themselves with the case materials; give oral or written explanations relevant to the case; present evidence, submit petitions, as well as the right to appeal any action of a person authorized to draw up a protocol, which significantly affects the strengthening of guarantees of the rights and freedoms of citizens involved in the administrative process. An explanation of procedural rights and obligations is made in the protocol. Therefore, sample protocols developed by competent authorities must contain such details as “clarification of rights and obligations.”

12. It is the duty of the authorized official drawing up the protocol to explain procedural rights and ensure the possibility of their implementation to participants in the proceedings. In particular, an individual or a legal representative of a legal entity against whom a case of an administrative offense has been initiated must be given the opportunity to familiarize themselves with the protocol of the administrative offense. These persons have the right to submit explanations and comments on the contents of the protocol, which are attached to the protocol.

13. The protocol is signed by the person who compiled it, and the person who committed the offense, as well as witnesses and victims, if any. At the same time, the signature of the protocol by a person brought to administrative responsibility is his right, but not his obligation, which follows from his legal status as a person participating in the proceedings on an administrative offense. The person who committed the offense has the right to submit explanations and comments on the content attached to the protocol, as well as state the reasons for his refusal to sign it. If the person who committed the offense refuses to sign the protocol, a record of this is made in it.

14. The protocol on the commission of an administrative offense is not the only procedural document recording the initiation of proceedings in a case of an administrative offense. Thus, the prosecutor’s decision to initiate a case of an administrative offense has the legal force of the protocol (see commentary to Article 28.4); a determination to initiate a case of an administrative offense issued by an authorized body in cases where an administrative investigation is necessary (see commentary to Article 28.7).

The legal force of a protocol on the commission of an administrative offense is provided by inspection reports drawn up in the established form in cases where a protocol is not drawn up, for example, tax audit reports in relation to legal entities and individual entrepreneurs. However, the question of this procedural document in the Code of Administrative Offenses of the Russian Federation remained open. The requirements for a tax audit report containing data on an offense are regulated by the Tax Code of the Russian Federation (Article 100).