What to do when drawing up a protocol on an administrative violation.

What to do when drawing up a protocol on an administrative violation.

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Currently, there is a steady trend towards tightening administrative liability; in other words, the amount of fines for various administrative offenses is constantly growing. For example, many articles of the Code of Administrative Offenses of the Russian Federation (CAO RF), establishing liability in the field of entrepreneurial activity, are supplemented with notes indicating that individual entrepreneurs are liable as legal entities. This increased the amount of fines for entrepreneurs tenfold.

Previously, many believed that even if they did not agree with the punishment and the fact of committing a violation in general, it was still easier, faster and cheaper to pay a fine of 500-1000 rubles than to challenge it. Now, when the size of the fine has increased many times over, the situation, you see, is already different; it makes sense to try to challenge the decision on sentencing. In addition, any of us is not immune from unjustified prosecution in all areas of life - from traffic to recreation and fishing.

In this regard, it is useful for everyone to know the basic rules of behavior when drawing up a protocol on an administrative offense.

A protocol is a document drawn up by an official (police officer or other regulatory or supervisory authority) after an administrative offense has been detected. From the moment the protocol is drawn up, in the vast majority of cases, the actual proceedings in the case of an administrative offense begin. It is important to understand here that a protocol is a document that only records the event of an offense; punishment for the offense (fine or otherwise) is not assigned when it is drawn up. The protocol and other evidence will be subsequently considered by a judge or other authorized administrative body, and based on the results of this consideration, a document is adopted - a resolution in the case of an administrative offense (in an arbitration court - a court decision), which can either impose a punishment or terminate the proceedings in the case.

In most cases, a protocol is drawn up immediately - where the offense took place (at the scene of an accident, at the workplace, at home, etc. - depending on the nature of the violation). However, there are also frequent situations when the violator is called to another day and to another place to draw up a protocol, and immediately after the violation is discovered, only a notice of the time and place of drawing up the protocol is handed over in person or sent by mail (otherwise) (this is typical for violations detected later, than they were actually committed, as part of control or supervisory measures and in case of ongoing violations - for example, you did not file a declaration). The law allows you to delay the preparation of a protocol up to 2 days from the moment the administrative violation is detected, however, failure to comply with this deadline in practice happens often and is not considered a gross violation (it will not allow you to avoid liability).

There are several exceptions to the general scheme outlined:

- the prosecutor, who has the right to initiate cases of administrative offenses, draws up a document called not a protocol, but a resolution. But only the name is different here, the essence (purpose) of the document and content are the same as the protocol, this name - “resolution” - should not confuse you, the prosecutor, when passing it, does not find you guilty, does not impose punishment. All of the following rules of conduct are also true when a prosecutor draws up a resolution.

- in some cases, an administrative investigation is allowed, about which a ruling is made (by the prosecutor, again, a resolution), and a protocol is drawn up only after the completion of such an investigation. This is permissible for the categories of offenses listed in Art. 28.7 of the Code of Administrative Offenses of the Russian Federation in cases where it is necessary to conduct examinations or other procedural actions that require time. In cases of beatings (Article 6.1.1 of the Code of Administrative Offenses of the Russian Federation) and petty theft (Article 7.27 of the Code of Administrative Offenses of the Russian Federation), an investigation is required.

— sometimes the stage of drawing up a protocol is absent in principle; a decision is immediately issued with the imposition of punishment. This is possible if the person who discovered the violation has the authority to consider the case, and the punishment is imposed in the form of a warning or a fine. If the person held accountable disputes the violation or does not agree with the punishment, then a protocol is drawn up.

— a protocol is not drawn up even in the event of detection of traffic offenses (Chapter 12 of the Code of Administrative Offenses of the Russian Federation), recorded using special technical means operating in automatic mode

The protocol, according to the Code of Administrative Offences, is evidence in the case (sometimes even the only one), everything that is written there can be used against you.

On the other hand, gross violations committed by an official when drawing up a protocol may be grounds for termination of the case by a court or other body of administrative jurisdiction, even if you committed an administrative offense.

Thus, it is clear that depending on what and how is reflected in the protocol, how the procedure for drawing it up took place, the future fate of your entire case will largely be decided, and that is why it is important to know how to act correctly.

So, what is important to remember if you are in a situation where a protocol on an administrative offense is being drawn up against you.

1. It makes no sense to refuse to sign the protocol or not to appear when called to draw it up (if the protocol is not drawn up immediately). The administrative body will do just fine without your signature and appearance (the Code of Administrative Offenses has appropriate procedures) and you do not create any special difficulties and do not help yourself in any way.

2. Before drawing up the protocol, your rights must be explained to you; the fact of explanation is certified in writing by a note in the protocol. If your rights have not been explained to you, there is no need to ask to do so, remain modestly silent, then in the “comments” section of the protocol we write: “my rights were not explained to me.” It should be taken into account that in cases where the protocol is drawn up later, and not immediately at the site of the violation, the descriptive part will most likely be filled out in advance. If the violation is multi-episode, complex, the official will prepare in advance and will not write out the entire text in front of you. This is fine. In this case, “before drawing up” means that this is the first thing the official does in relation to the protocol from the moment of your appearance and identification.

3. The main points of the procedure are as follows: drawing up a protocol by an official, your familiarization with the protocol, your signing of the protocol, your making comments on its contents and written explanations. Exactly in this sequence. You should be the last person to read the protocol and write something on it. If you are given a protocol for review and signing, then after reading it, ask the question: will any other information (changes) be added to the protocol by the person who compiled it. If yes, return it, let him fill out everything first, if not, feel free to put Z in all unfilled places of the protocol form (for now - except for the sections with your comments and explanations). This is necessary so that after you read the protocol nothing new appears there .

4. If you see that the protocol contains witnesses, ask them to present them (they are possible when drawing up the protocol “on the spot”) and check the correctness of their data in the protocol. If witnesses are indicated, the same applies to recording “on the spot”. If you have witnesses who can confirm your innocence (even close relatives) and they are not listed, ask to do so; if they refuse, indicate this in the “remarks” section, and write their data in the “explanations” section.

5. You have the right to make comments on the contents of the protocol. In addition to the already mentioned note that your rights were not explained to you or your witnesses were not indicated, all other shortcomings of the protocol can and should be noted here. It must contain an indication of the place where it was compiled, the position, surname and initials of the person who compiled the protocol, information about you, the place, time of commission and event of the offense, the article of the law providing for administrative liability for this administrative offense. Please indicate if there are errors in the description of the violation event (incorrect place, time, other circumstances - quantity, duration of something, etc.). If there are such errors, and you sign without comments, it means you agreed with what was written. Refutation will be possible only with the help of other reliable evidence. Also note the absence of necessary information, unclear handwriting, and the presence of corrections. If you have no comments or there is free space left, put Z.

6. Do not rush to write something in the “explanations” section about admitting or not admitting guilt or the facts stated in the protocol; you will have time to do this at the stage of consideration of the case on its merits. No matter what the officer drawing up the protocol tells you (as a rule, they say exactly that, they say, write - I admit it or not), you are NOT OBLIGATED at this stage to express your attitude towards the accusation. It is your right to provide an explanation. Moreover, this should not be done if you are not sure whether you committed a violation or not. An acceptable option is to write in the explanation column “I can’t give an explanation, because I’m very worried. Need legal help." Or “I will provide explanations during the consideration of the case, the assistance of a defense attorney is needed.” This is correct from a practical point of view, since drawing up a protocol is a stressful situation in any case. You must remember that the protocol is evidence, and the less you write about yourself and your attitude, the easier it is to later correct your position, and for the lawyer (defender), if you resort to his help, to better defend your interests. Then, in a calm atmosphere, you will carefully study the protocol, if necessary, seek legal assistance and form your position on the case. If there is any free space left in this section of the protocol, be sure to put Z.

7. You must be given a copy of the protocol. If it is drawn up immediately, then, as a rule, this is a version of the protocol on a form that is filled out as a carbon copy. After you have made all the necessary marks in the protocol, simply take the second copy. If the protocol is drawn up later, then most likely you will be provided with 2 copies of the protocol, printed on a computer. In this case, the first copy will be taken from you in order to send it for consideration on the merits. If the filling is not a carbon copy, you will have to write everything again and in exactly the same way in your copy, or at least take a photograph of the first copy of the protocol. Do not leave without having a complete and final version of the protocol with you, because, for example, if you ask a lawyer for help, he should know exactly what the protocol looks like when the court or other body of administrative jurisdiction looks at it.

You should also know that a person brought to administrative responsibility has the right to use the legal assistance of a defender (lawyer or other person by proxy). Such assistance can be provided not only when considering the case on its merits, but also at the stage of drawing up the protocol. In our experience, appearing to draw up a protocol on an administrative offense with a lawyer can significantly change the position of the administrative body. Appearing with a lawyer means that the person will defend his position and, most likely, will appeal the decision in the case in the future. If the case is lost, the costs of the lawyer will be recovered from the administrative body, and this fact forces the relevant officials to terminate the proceedings in doubtful cases.

We hope that these simple rules will help you get out of the situation with administrative penalties with minimal losses and, at a minimum, without harming yourself.

If you need a lawyer, here is the approximate cost of our services.

© Liliya Mishchuk

What to do when drawing up a protocol on an administrative violation.

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Report on the discovery of a crime based on citizen reports

Sometimes a serviceman does not himself become a witness to a crime. Sometimes, he is informed about this by citizens who contact him directly to provide details of the crime. In this case, both other military personnel and civilians can act as citizens. How should a soldier respond to a report of a crime?

A soldier who has taken an oath to defend his fatherland must accept the information and try to verify it. And if there are no resources and opportunities for personal verification, then the command needs to be informed about an impending or occurring crime. In any case, citizens’ appeals cannot be ignored.

The soldier’s task is to find the details of the crime and bring them to the command itself. That is why a report is drawn up, the main purpose of which is to notify higher authorities about what happened in the offense.

Report on the results of operational activities

If a serviceman has seen a crime, then operational measures are carried out in order to find that a crime has been committed. As a rule, not only military interrogators and investigators, but also ordinary employees participate in such events. Upon participation in events, a report must be drawn up from each participant in the action. If the investigator and the interrogating officer draw up a special report, which is attached to the case, then the ordinary serviceman must draw up a report addressed to his superiors where they were at a specific time, what actions they carried out, and the fact of what crime they were checking.

The more details and descriptions in the report, the better.

Every action of a military man must be recorded. This helps maintain discipline and also teaches military personnel clarity and correct interaction in this area. Therefore, a report indicating participation in military events is required.

A crime that was discovered during his investigation

Not only investigators and interrogators, but also military people of other positions help in conducting investigations of a particular case. If during the investigation the fact of a particular crime was revealed, a report is drawn up, and it is worth warning the authorities about what actions took place on the territory of a particular unit, or with the connivance of one or another military personnel. This action is mandatory and allows the fact of the crime to be conveyed to higher positions.

After the fact of drawing up the report, not only the investigator and the interrogating officer, but the team of the unit will decide whether to bring the citizen to justice . Having considered the evidence, if necessary, a military court is appointed, which will result in a verdict.

A report on a crime that was discovered during the investigation is not the only document. In addition to the report, other papers are included, which are essentially evidence of a particular crime. This rule cannot be ignored.

Sometimes a crime that was discovered during an investigation cannot be made public due to the fact that it could interfere with the progress of the case. What to do in this case? How to inform the command?

In fact, in such a situation, it is necessary to explain everything to the command, but in the report itself indicate why it is impossible to tell the public about this crime, and what the consequences of such an action may be.

The more explanatory information there is, the more likely the result will be. By disobeying, a serviceman can let down not only the command, but also, he will let down the investigation, which will be able to understand the criminal act.

Simply, before reporting useful information to the command, be sure to check with the investigative authorities what exactly you can indicate in the report , what it is better to refrain from.

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