Consideration of the case of an administrative offense - Administrative process

Consideration of the case of an administrative offense

The main stage of the proceedings in the case of an administrative offense is the consideration of the case. It is at this stage that a competent and objective legal assessment of the committed act must be given, a decision on the merits of the case is made.

This stage includes three stages:

preparing the case for consideration;

• the actual consideration of the case;

• Adoption of the decision on the case (Figure 3.4).

Stages of consideration of the grandfather about an administrative offense

Fig. 3.4. Stages of consideration of the grandfather about an administrative offense

In Ch. 29 of the Administrative Code of the United States defined the appropriate procedural actions.

The case preparation rules are common to all subjects of administrative jurisdiction.

In preparing for the consideration of the case, the judge, body, official must find out:

• Is this case relevant to their competence?

• Are there any circumstances that preclude the possibility of its consideration?

• Is the protocol on administrative violation and other protocols provided for by the US Code of Administrative Offenses been properly drawn up and whether other case materials have been properly drawn up;

• Are there circumstances excluding the proceedings?

• is the material available for the case to be considered on its merits

• Are there any requests and challenges (Article 29.1 of the Code of Administrative Offenses of the United States).

In preparing the case for consideration, a judge, body, official should pay special attention to the question of whether the consideration of a specific case relates to their competence. We are talking about jurisdiction and jurisdictions cases of administrative violations (see articles 1.3 and 23 of the Code of Administrative Offenses of the United States ).

In the decision of the Plenum of the Supreme Court of the United States of March 24, 2005, No. 5, the issues of delineation of the competence of courts of general jurisdiction within the framework of the system of these courts were considered, proceeding from the content of Art. 23.1 of the Code of Administrative Offenses (paragraph 3 of the resolution). According to the norms of this article, magistrates consider cases of administrative offenses attributed to the jurisdiction of courts of general jurisdiction, with the exception of cases referred to the jurisdiction of district courts and garrison military courts. Judges of the federal district courts consider cases in cases listed in Art. 23.1 of the Administrative Code of the United States:

• If an administrative investigation has been conducted in the case;

• If in the case as a sanction an administrative expulsion of an alien or stateless person outside the United States is provided;

• If the case on administrative suspension of the activities of a legal or an individual entrepreneur is considered;

• If it is possible to punish in the form of disqualification of a person who replaces the position of a federal or regional (subject of the United States) state civil service or municipal service.

In addition, the legislator referred to the jurisdiction of the district courts cases under art. 5.38, 19.3, 20.1-20.3, 20.18, 20.29 The special part of the Administrative Code of the United States, imposing administrative liability including violation of the legislation on assemblies, rallies, demonstrations, marches and picketing, petty hooliganism, drinking alcohol and beverages, or consumption of narcotic drugs or psychotropic substances in public places.

Judges of garrison military courts consider cases of administrative violations of servicemen and citizens called up for military training.

The US Code of Administrative Offenses also provides for the separation of the jurisdictional functions of judges of courts of general jurisdiction and arbitration courts. It should be noted that one of the main criteria for allocating the competence of these courts is the content of the case, since to the jurisdiction of arbitration courts in accordance with the Federal Constitutional Law No. 1-FKZ, dated April 28, 1995, "On Arbitration Courts in the United States"; is the consideration of cases of administrative offenses arising from the entrepreneurial and other economic activities of legal entities and individual entrepreneurs. In Art. 23.1 (Part 3) lists the articles of the Special Part of the US Code of Administrative Offenses, the consideration of cases on which is assigned to the competence of arbitration judges.

In addition, in Art. 30.1 The US Code of Administrative Offenses states that a decision on a case of an administrative offense committed by a legal entity or an individual entrepreneur shall be appealed to the arbitration court in accordance with the arbitration procedural legislation. This is not a clear version of the norm of part 3 of Art. 30.1 The US Code of Administrative Offenses stipulated the need for its interpretation.

In the decision of the Plenum of the Supreme Court of the USA mentioned above, it is emphasized that judges of courts of general jurisdiction are not entitled to hear cases listed in Part 3 of Art. 23.1 of the Administrative Code of the United States (including if an administrative investigation was conducted in the case, or when an individual entrepreneur who committed an offense under an article named in this paragraph lost his status).

Of great importance is the instruction of the Plenum of the Supreme Court of the United States that if, in preparing the case for consideration by a judge, it is established that the consideration of a case is not within its competence, then on the basis of cl. 29.4 The US Code of Administrative Offenses must make a determination to transfer the case for review on jurisdiction. If the case falls within the competence of the judge of the arbitral tribunal, the judge shall pass a decision on the return of the case file to the body or official who made the report, since according to Art. 202 APC USA, when sending a protocol and attached materials to the arbitration court, it is still necessary to submit a statement on bringing the person to administrative responsibility in accordance with the established form. More detailed recommendations on this issue are given in a number of reviews of the jurisprudence of the Supreme Court of the United States.

In turn, the Plenum of the Supreme Arbitration Court of the United States in Resolution No. 10 of 02.06.2004 "On Some Issues Arising in Judicial Practice in Considering Administrative Offenses" (Clause 6) explained the procedure for the return of case materials, if its consideration does not apply to the jurisdiction of the arbitral tribunal, with references to Part 3 of Art. 23.1 of the Administrative Code of the United States, part 1 of Art. 129 and part 1 of Art. 150 APC USA.

Issues of territorial jurisdiction cases are resolved in accordance with the norms of Art. 29.5 of the US Code of Administrative Offenses, according to which, according to the general rule, the case is considered at the place where the offense was committed. However, at the request of the person brought to justice, the case can be examined at the place of residence of that person.

This application must be considered (Article 24.4 of the Code of Administrative Offenses), and in case of its rejection, a reasoned definition must be made. The petition is usually submitted in writing and is considered either in the preparation of the case for consideration or in the process of its consideration. During the consideration of the case, the application in oral form is allowed in the court. In the Decision of the Constitutional Court of the United States of 29.01.2009, No. 2-0-0, it is emphasized that an application for consideration of a case of an administrative offense at the place of residence of a person held liable is not subject to satisfaction in all cases, but only when it is dictated by the need to resolve tasks related to the proceedings. On the issue of considering such applications, judges are given a detailed explanation in the decision of the Plenum of the Supreme Court of the USA of 24.05.2005 No. 5 (paragraph 3).

In accordance with Art. 29.5 The US Administrative Court of Arbitration, the case of an offense for which an administrative investigation was conducted is considered at the location of the body that conducted the investigation.

Cases of violations of minors, as well as of individual offenses committed against them, are considered at the place of residence of the person held accountable.

In accordance with Part 5 of Art. 29.5 The case of an administrative offense provided for in Sec. 12 of the Code of Administrative Offenses of the USA, or an administrative offense in the field of landscaping provided for by the law of a United States entity, if the fact of the offense is fixed by a special technical facility operating in automatic mode, is considered at the location of the authority to which the relevant materials were received.

When preparing a case for consideration of the place and time of the hearing of the case, the person called to account or his legal representative, the victim, other participants in the proceedings on the case must be notified.

Of particular importance is the notification of the person against whom proceedings have been instituted, since in the absence of the person being brought to justice, the case can be examined if there is information about the person's proper notice of the place and time of the case and if the person has not received petition for adjournment of the case or if such application is left without satisfaction (Part 2, Article 25.1 of the Code of Administrative Offenses of the United States). However, in part 3 of Art. 25.1 a special reservation is made regarding the consideration of cases of administrative offenses involving administrative arrest, compulsory labor or administrative expulsion from the United States. In these cases, the case can be considered only in the presence of the person concerned.

Article 25.15 of the US Code of Administrative Offenses establishes rules for notifying participants in the proceedings of the place and time of the case.

In accordance with Art. 29.4 Administrative Code of the United States in the preparation of the case for review, a series of legally significant decisions in the form of definitions and decisions.

Definitions are posted on the following questions:

• on the appointment of time and place of trial;

• about the call of the participants in the proceedings, on demanding the necessary additional materials on the case, on the appointment of the examination;

• about the adjournment of the consideration of the case. If the case is adjourned in connection with the non-appearance without good cause of the participants in the proceedings in the case specified in Art. 27.15 of the Administrative Code of the United States, and their absence hinders the clarification of the circumstances of the case and its resolution in accordance with the law, a determination is also made at the same time for the transfer of these persons;

• on the return of the protocol on the administrative violation and other materials of the case to the body, to the official who compiled the report, in the following cases:

a) drawing up a protocol and processing other case materials by unauthorized persons;

b) improper compilation and processing of relevant materials;

c) incompleteness of the submitted materials, which can not be replenished during the consideration of the case;

• on the transfer of the protocol on administrative violation and other materials of the case for consideration under jurisdiction in cases where:

a) consideration of the case does not fall within the competence of the subject to whom the materials were submitted;

b) a decision was made on the challenge of a judge, the composition of a collegial body, an official.

The decision to discontinue the proceedings is issued in the case of:

• the presence of at least one of the circumstances excluding the proceedings in the case provided for in Art. 24.5 of the Code of Administrative Offenses of the United States;

• announcements of an oral comment in accordance with Art. 2.9 of the Code;

• the termination of proceedings in the case and the transfer of materials to the prosecutor, the body of preliminary investigation or inquiry, if the actions (inaction) contain signs of a crime.

As a general rule, a case is considered within within 15 days from the day the body, an official authorized to consider it, reports on the administrative violation and other case materials. The time for consideration of the case by the judge is now much greater - two months (see Federal Law No. 69-FZ of 30 April 2010). In cases of receipt of motions from participants in proceedings, as well as, if necessary, in additional clarification of the circumstances of the case, the time for consideration of the case may be extended, but not more than one month. The decision about this is made in the form of a definition.

The shortened period for considering the case of violation of the legislation on elections and referenda (no more than five days), on offenses involving administrative suspension of the activity of the relevant facility (no later than seven days after the actual suspension of activities) is provided for, and . The case of an administrative offense, the commission of which entails administrative arrest or administrative expulsion, is considered on the day of receipt of the protocol on administrative violation and other materials, and in respect of the person subjected to administrative detention - no later than 48 hours from the moment of his detention.

The US Code of Administrative Offenses, unlike the US CCP and the US CCP, does not detail procedural actions on the procedure for reviewing the case .

In two parts of Art. 29.7 the actions of the subject of administrative jurisdiction are divided into organizational and information actions and consideration of the case on the merits.

Initially, it is announced who is reviewing the case, who is being held accountable, the fact of appearance of such person or his legal representative is established; the powers of the defender and representative are verified, it is established whether the persons participating in the proceedings are notified; the rights and duties of such persons are explained; consider applications, petitions and challenges.

If the relevant facts are found, the judge or other administrative jurisdiction may make the following definitions :

• on the need for appearance of the person liable (the legal representative of the legal entity);

• about the drive of the relevant persons, if necessary, in accordance with Part 3 of Art. 29.4 and 27.15 of the Code of Administrative Offenses of the United States;

• about adjournment of the consideration of the case in cases of receipt of an application for the removal of persons considering the case, other participants in the proceedings; the need for appearance of the person participating in the case;

• about the transfer of the case for consideration by jurisdiction.

Requirements for the content of the definition are contained in Art. 29.12.

After finding out the above circumstances, if they are

do not prevent further consideration of the case, begins substantive examination of the case :

• the protocol on the administrative violation is disclosed and other documents available in the case (for example, the protocol of the inspection of the place of committing an administrative offense, the materials of photo and video shooting, etc.);

• the explanations of the person being held accountable are heard;

• the testimony of other persons participating in the case (witness, expert, etc.);

• in case of participation of the prosecutor in the consideration of the case, his conclusion is heard;

• Other procedural actions envisaged by the US Code of Administrative Offenses are being carried out, for example, the idea of ​​eliminating the reasons and conditions facilitating the commission of an administrative offense is being made.

According to Art. 29.9 of the Administrative Code of the United States, the decision on the merits of the case is taken in the form of an order: either to impose an administrative penalty or to terminate the proceedings.

In Art. 29.10 The Code of Administrative Offenses of the USA stipulates the requirements for the contents of the decision on the case of an administrative offense.

As a general requirement, in Part 1 of Art. 29.10 the mandatory requisites of the order are determined. Further, it indicates the need for motivation of the decision maker, as well as instructions on how to appeal against the decision.

In the subsequent parts of Art. 29.10 contains important explanations concerning the specifics of the contents of decisions based on the results of the examination of certain categories of cases. So, if the issue of reimbursing property damage in accordance with Art. 4.7 of the Administrative Code of the United States, the resolution specifies the amount of damage to be reimbursed, the time and procedure for its reimbursement.

In addition, the decision should reflect the decision of issues on seized items and documents, as well as on the things that are seized, if confiscation is not applied (or can not be applied) to these things. In this case, things and documents not withdrawn from circulation are subject to return to the rightful owner, and if it is not established, they are transferred to state ownership in accordance with the legislation of the United States; things withdrawn from circulation are subject to transfer to appropriate organizations for destruction.

When appointing an administrative penalty in the form of administrative suspension of activities, the judge, the official of the authorized body (see Article 3.12 of the Administrative Code of the United States) must decide on the measures necessary to enforce the resolution. The Supreme Court of the USA in its decision No. 5 of March 24, 2005 detailed the rules for the appointment of an administrative suspension of activities, stressing the need to take into account the nature of the activity and the nature of actions or omissions committed by a legal person or individual entrepreneur, as well as other circumstances that affect the creation of conditions for a real possibility of an offensive negative consequences for life and health of people, the emergence of epidemics, epizootics and other dangerous factors. It is also indicated how the judge should act when determining the terms of administrative suspension of activities and what the content of the resolution should be (paragraph 23.1).

In connection with the introduction of such a security measure for the case, as a pledge for the arrested vessel (Article 27.18 of the Code of Administrative Offenses of the United States), the resolution on the case is subject to resolution of the issue of reimbursement of the pledgee for the arrested vessel or about the transfer of this pledge to the state revenue.

When issuing a decision in respect of a foreign citizen or stateless person, the judge decides whether to place such a person in a special institution if he orders an administrative punishment in the form of forced expulsion from the United States.

It should also be noted that the decision, in the case of simplified proceedings, provided for by Part 3 of Art. 28.6 of the Administrative Code of the United States, with the application of materials obtained with the use of special technical means working in automatic mode, is made out in the form of an electronic document, the legal force of which is confirmed by a strengthened qualified electronic signature.

The decision on the case is announced immediately at the end of its consideration. This general rule continues to operate, but now in Art. 29.11 The Code of Administrative Offenses of the USA has been made significant additions. They allow in exceptional cases, by a judge's decision, an official (in the article united by the term "person") and the body considering the case, to postpone the drawing up of a reasoned decision for a period not more than three days from the day the case is closed. At the same time, the operative part of the resolution must be announced immediately.

A copy of the decision shall be handed over against a receipt to an individual or his legal representative or legal representative of a legal entity against whom it was issued, as well as to the victim at his request or sent to the said persons by mail by registered mail within three days from the date of the decision. In cases of offenses related to violation of the procedure for handling weapons (Article 20.8, 20.9, 20.12 of the Administrative Code of the United States), in respect of a person who is entrusted with firearms and ammunition (cartridges) in connection with the performance of official duties or transferred for temporary use by the organization, a copy of the decision on the imposition of punishment is sent to the relevant organization. A copy of the judge's decision to impose an administrative penalty in the form of administrative suspension of activities shall be sent to the official who made the report on the administrative violation within three days from the date of the resolution.

The current US Code of Administrative Offenses (Article 29.12.1) resolves the issue of correction of misprints, typos and arithmetical mistakes in the resolution, decision taken on the results of the case. Such corrections can be made on the initiative of the persons specified in art. 25.1-25.5.1, 25.11, and the prosecutor or on the initiative of a judge, body, official, issued a resolution (as well as a determination) in the case. However, a change in the content of the decision, determination, decision in the case is not allowed. Corrections are made by definition.

In order to prevent administrative violations, a judge, body, official considering cases is authorized to make a submission on the elimination of the reasons and conditions , facilitating their commission (Article 29.13 of the Code of Administrative Offenses of the United States ). The submission is submitted to the relevant organizations or officials who are required to review it within a month from the date of receipt and to report on the measures taken to the person who submitted such an introduction.

The specifics of the consideration of a number of cases of administrative violations are related to the fact that, along with the norms of the Administrative Code of the United States, norms of the agrarian and industrial complex of the United States .

The APC of the United States considers the consideration of cases of administrative violations to administrative proceedings, having established that these cases are examined according to the general rules of the proceedings with the peculiarities established in Sect. III of the APC of the United States, if the rules of administrative proceedings are not provided for by federal law. With regard to cases involving administrative violations, it should be assumed that another federal law is the US Code of Administrative Offenses. The US AIC received a certain reflection of the US Code of Administrative Offenses.

It should be noted that the proceedings on administrative offenses in arbitration courts are carried out according to the rules of Ch. 25 of the APC of the United States and is characterized by a number of features. This Code uses a different terminology (instead of a decision in the case, a decision is made); established other rules for appealing the decision taken in the case.

In contrast to the Administrative Code of the United States, the adoption of the case for consideration is due to the submission of two procedural documents: the statement of the official on bringing to administrative responsibility and the protocol on administrative violation (Article 203-204 of the APC of the United States).

The order of the case (terms, notices, the establishment of the event of an administrative offense and the fact of its commission by a specific person, the correctness of the protocol, other evidence) is defined in art. 205 of the US agroindustrial complex. It should be noted that this article specifically indicates that the duty to prove the circumstances that served as the basis for drawing up a protocol on an administrative offense can not be imposed on the person held accountable.

Based on the results of the consideration of the case, the court (the case is considered solely by the judge) decides on bringing to administrative responsibility or on refusal to satisfy the requirements of the administrative body. The decision comes into force after 10 days from the date of its adoption, unless an appeal is filed.

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