More than half of all drivers have at least once encountered the process of drawing up a protocol. If you belong to the minority who have missed this fate, then be on alert - sooner or later, it will still affect you. But in order for you not to fall flat on your face, I suggest you read this article. In it we will tell you how a protocol should be drawn up correctly, what information it should contain, how it differs from a resolution, and much more.
How does a protocol differ from a traffic police resolution?
A protocol is a procedural document that is drawn up in the presence of some event or an administrative offense. We offer you for your review a sample protocol on an administrative offense of the traffic police.[
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It is filled out by the inspector who detected a violation of traffic rules in your actions. However, it is worth noting that the drawn up protocol does not mean that your guilt has been proven, since when drawing up a protocol on an administrative offense, the inspector may commit gross procedural violations that will lead to the termination of the case. That is, the drawn up protocol is the beginning of your struggle with the inspector, namely preparation for the consideration of your case.
The grounds for drawing up a protocol on an administrative offense are:
— identification of an administrative offense if the consideration of the case regarding this administrative offense is not within the competence of the employee; - a challenge by a person against whom, in accordance with Part 1 of Article 28.6 of the Code, a case of an administrative offense has been initiated, the existence of an event of an administrative offense and (or) an administrative punishment imposed on him, or a refusal to sign the corresponding signature in the resolution in the case of an administrative offense; — identification of an administrative offense committed by a minor who has reached the age of sixteen; - identification of an administrative offense that does not entail a warning, committed by a sergeant, sergeant major, soldier, sailor undergoing military service on conscription, or a cadet of a military educational institution of vocational education before concluding a contract with him for military service.
Clause 142 of Order of the Ministry of Internal Affairs of Russia dated August 23, 2017 N 664
But there are also exceptions, which are specified in Part 1 of Article 28.2 of the 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.
Part 1 of Article 28.2 of the Code of Administrative Offenses of the Russian Federation
It also happens that the protocol was drawn up with significant errors. For example, if the inspector did not indicate the article under which the administrative offense was committed, then such a protocol is declared invalid and the person is relieved of all responsibility in this case. It should also be noted that absolutely all witnesses must be indicated in the protocol, even taking into account that the column in the form will not be enough for this.
The resolution is the result of consideration of the administrative protocol. You can familiarize yourself with it by looking at a sample traffic police resolution in a case of an administrative offense. [
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If the violation was minor, then it can be made “on the spot”; in case of gross violations, a decision is made by the court, and it can be either against you or in your favor.
Drawing up a resolution
The authorized body shall consider the case only if it has notified the person of the date, place and time. And such a person did not submit a reasoned request to postpone the case. Or a petition for consideration of the case at the place of his residence (for more details - the statute of limitations for bringing to administrative responsibility). Of course, the petition is subject to consideration. And the relevant body has the right to satisfy it, but also the right to refuse. However, the person reviewing the materials must justify the reasons for the refusal. Subsequently, the unconvincing motives can be used in the complaint.
Violation of the rules for notifying a person who is being held administratively liable is a significant procedural violation. And in such cases, the participant in the case can successfully appeal the decision on an administrative offense.
Rules for drawing up a traffic police report
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So, in order to calculate a gross mistake made by an inspector, you must first know how to draw up a protocol correctly. According to Article 26.2 of the Code of Administrative Offenses, the protocol is the main evidence of the guilt of the vehicle driver, therefore, how it is drawn up largely depends on whether the driver will be punished or not. If a traffic police inspector delays the process of drawing up a protocol, this may be considered an administrative offense under Article 12.35 of the Code of Administrative Offenses of the Russian Federation.
Application to owners and drivers of vehicles and other road users of measures not provided for by federal law, aimed at limiting the rights to drive, use or operate a vehicle, or violation of the established procedure for applying measures provided for by federal law, aimed at limiting the rights to drive, use vehicle or its operation - entails the imposition of an administrative fine on citizens in the amount of two thousand rubles; for officials - twenty thousand rubles.
Article 12.35 of the Code of Administrative Offenses of the Russian Federation
The protocol is filled out exclusively with a ballpoint pen or using a printing device.
Procedural documents must be filled out in black, blue or purple ink by hand or using a printing device. The text of the procedural document, made by hand.
paragraph 41 of Order of the Ministry of Internal Affairs of Russia dated August 23, 2017 N 664
Now let's move on to the information that should be contained in the protocol. None of the above should be omitted.
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 was initiated, surnames, first names, patronymics, addresses of the place of residence of witnesses and victims, if any. witnesses and victims, place, time of commission and event of the administrative offense, article of this Code or the law of the constituent entity of the Russian Federation providing for administrative liability for this administrative offense, explanation of the individual or legal representative of the legal entity against whom the case was initiated, other information necessary for resolution of the case.
Part 2 of Article 28.2 of the Code of Administrative Offenses of the Russian Federation
Now, for greater convenience, we will list this in more or less understandable language in the form of a list:
- Date and place of document preparation;
- Position, surname and initials of the traffic police inspector;
- Information about the owner of the vehicle. If at the time of registration of the violation your documents are missing, this information is recorded from the words of witnesses;
- Information about witnesses and victims, in particular their full names and addresses;
- Witness testimony is very important for the driver. The driver has the right to demand the traffic police inspector to include, for example, his passengers in the protocol as witnesses, and also to involve them in the consideration of the case. It is important to know that any competent person (regardless of the degree of relationship) who became a participant in the event and who is aware of the circumstances to be established can act as a witness. If a police officer claims that your passengers (for example, your wife) are interested parties, know that this is not so. According to Article 25.6 of the Code of Administrative Offenses of the Russian Federation, witnesses cannot be interested persons (such can be witnesses, experts, etc.)
- An indication of the legal act that was violated, the place and time of the offense, as well as a detailed description of the situation and the role of the participants in the violation.
- Indication of the article that provides for liability for the offense;
- Explanation of the person against whom the case was initiated. In this column you can enter your disagreement with the procedure for drawing up the protocol;
- Any other information that may be useful in resolving the case. You can attach a diagram, petitions, etc. to the protocol. If you don’t have enough space in the protocol for an explanation, write it on a blank piece of paper, and in the protocol, in the column “person’s explanations,” record that they are attached.
During the preparation of the protocol, the traffic police officer is obliged to explain to you your rights and responsibilities. This is also noted in the protocol.
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.
Part 3 of Article 28.2 of the Code of Administrative Offenses of the Russian Federation
It is worth remembering that you must be given the opportunity to familiarize yourself with the protocol. If you or your witnesses have any edits, make them yourself or ask the inspector about it.
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.
Part 4 of Article 28.2 of the Code of Administrative Offenses of the Russian Federation
Corrections (additions) made to other procedural documents must be agreed upon with the persons specified in paragraph one of this paragraph and certified by the signature of the employee who compiled the procedural document. The relevant participants in the proceedings on an administrative offense must be familiarized with the corrections (additions) against signature, and if this is not possible, a copy of the corrected (added) procedural document is sent to them within three days from the date the correction (addition) was made. If these persons refuse to sign, a corresponding entry is made in the procedural document.
Paragraph 3 of paragraph 174 of Order of the Ministry of Internal Affairs of Russia dated August 23, 2017 N 664
After reviewing, you need to sign the protocol. When you see empty spaces, do not leave them, put a Z on them. Otherwise, this may serve as various illegal additions on the part of the inspector.
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. (as amended by Federal Law No. 210-FZ dated July 24, 2007)
Part 5 of Article 28.2 of the Code of Administrative Offenses of the Russian Federation
As soon as the signatures are placed, you should be given a copy of the protocol in your hands.
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. (as amended by Federal Law dated December 8, 2003 N 161-FZ)
Part 6 of Article 28.2 of the Code of Administrative Offenses of the Russian Federation
When you receive a copy of the protocol in your hands, you must read it carefully. Do not write anything else in the protocol after receiving its copy, especially under the dictation of the traffic police inspector, this can play a cruel joke on you.
If the violation was minor, then you should also be given a copy of the decision. Sign the box “Received a copy” only after you have actually received a copy. This will avoid possible falsifications on the part of the inspector.
Contents of the resolution in the case of an administrative offense
Now every government body has a “blank” resolution. A written form that an official completes after reviewing the case file.
The law sets requirements for the content of the resolution. The document must include:
- date and place of consideration of the case
- position, surname, first name, patronymic of the official, court that examined the case
- information about the person who is being held accountable
- circumstances of the case (elements of an administrative offense, event)
- article of the Special Part of the Code of Administrative Offenses of the Russian Federation (the law of a subject of the Russian Federation, if the case is being considered by an administrative commission)
- result - a reasoned decision on the case and the type of administrative punishment
- deadlines and procedure for appealing
- signature of the author of the resolution
Depending on the type of punishment imposed, the specifics begin. If this is an administrative fine, then the resolution contains details for its payment. When a court orders an administrative suspension of activities for violations in the area of anti-money laundering, the issue of measures to block accounts is decided. And a number of other features are established by Art. 29.10 Code of Administrative Offenses of the Russian Federation.
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Resolution on administrative offense
How to fill out a traffic police report correctly
In addition to the correct completion of the protocol by the inspector, you must correctly fill out the special fields yourself. Having received the protocol in your hands for review, you need to read it carefully. Remember that the inspector will rush you and can snatch the protocol out of your hands at any moment. In this case, you should behave calmly, say that you have every right to write explanations in the protocol and the actions of the IDPS will be considered a violation of your legal rights.
Important!
If diagrams and drawings were not drawn up, add “The diagram was not drawn up” in the explanation. This will deprive IDPS of the opportunity to add diagrams to the protocol by making the inscription “The driver refused to sign.” If the diagram is drawn up in one copy, write: “They did not give a copy of the diagram.”
If there are passengers in the car with you, then ask to register them as witnesses. If the inspector refuses to enter them into the protocol, claiming that they are interested parties, enter them into the protocol with your own hand.
A person who may be aware of the circumstances of the case to be established may be called as a witness in a case of an administrative offense.
Part 1 of Article 25.6 of the Code of Administrative Offenses of the Russian Federation
In this article, close relatives mean parents, children, adoptive parents, adopted children, siblings, grandparents, and grandchildren.
Note to Article 25.6 of the Code of Administrative Offenses of the Russian Federation
If there are no witnesses, put a Z in the column to prevent witnesses from appearing “randomly” later.
How to appeal a traffic police decision
The protocol was drawn up, and then, if you have a minor violation, for which the sanctions include only a fine, the inspector immediately makes a decision on the case. In this part of our article, we will tell you what the procedure, procedure and deadlines for appealing a traffic police decision are.
Once the ruling is made, you have two options:
- Peacefully go and pay the fine;
- Appeal it.
Initially, it is worth remembering that until your guilt is proven, you are not considered guilty, but at the same time you are obliged to prove your innocence. This is stated in the note to Article 1.5 of the Code of Administrative Offenses of the Russian Federation.
Now let's move directly to the appeal. A complaint against a traffic police decision in a case of an administrative offense must be filed within 10 days after its issuance.
A complaint against a decision in a case of an administrative offense may be filed within ten days from the date of delivery or receipt of a copy of the decision.
Part 1 of Article 30.3 of the Code of Administrative Offenses of the Russian Federation
If the decision was made using special technical means of photo or video recording, then the period for appeal will be counted from the day it was received by mail.
You can file a complaint not only with the court, but also with higher authorities, depending on the complexity of the case. But we will consider going to court. Once you submit it, they are required to forward your complaint within three days to the place of consideration.
A complaint against a decision in a case of an administrative offense is submitted to the judge, body, or official who issued the decision on the case and who are obliged to send it with all the materials of the case to the appropriate court, higher body, or higher official within three days from the date of receipt of the complaint.
Part 1 of Article 30.2 of the Code of Administrative Offenses of the Russian Federation
You can also send your complaint directly to the place where it was considered.
A complaint can be filed directly with a court, a higher authority, or a higher official authorized to consider it.
Part 3 of Article 30.2 of the Code of Administrative Offenses of the Russian Federation
We go to the city or district court, go to the office for administrative cases and find there a sample complaint to the court against the traffic police resolution [sample], on the basis of which we will draw up our complaint. Don't forget to take a copy of the resolution, protocol and passport with you.
I would like to please those who are afraid that they will have to pay an additional fee - there is no need to pay a state fee.
A complaint against a decision in a case of an administrative offense is not subject to state duty.
Part 5 of Article 30.2 of the Code of Administrative Offenses of the Russian Federation
When you compose a complaint, be extremely attentive to the text you compose. The information contained in it must be substantive and contain facts and circumstances. There is no need to write long stories that begin with the words “I was driving once...”. The complaint must contain all regulations that you believe have been violated.
You can file a complaint not only in cases of appealing a decision, but also in other cases when you believe that communication with the inspector was unlawful. Remember one thing: you can only appeal the decision. The protocol cannot be appealed.
The fact who exactly made the decision for you also plays a special role. Based on this, you can already decide exactly where to file a complaint.
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; (as amended by Federal Laws dated October 2, 2007 N 225-FZ, dated July 18, 2011 N 225-FZ) 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. (Part 1.1 introduced by Federal Law dated July 23, 2010 N 171-FZ, as amended by Federal Law dated July 18, 2011 N 242-FZ) 2. If a complaint against a decision in a case of an administrative offense was 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. (as amended by Federal Law No. 307-FZ of October 14, 2014) 4. A ruling to refuse to initiate a case regarding an administrative offense is appealed in accordance with the rules established by this chapter.
Article 30.1 of the Code of Administrative Offenses of the Russian Federation
After filing a complaint, all you have to do is wait for a decision on the case to be made. If you lose it, you will still have to pay a fine.
Another important fact: if a traffic police officer stopped you on the highway or in another city, you have the right to file a petition for consideration of the case at the place of registration of your vehicle (or place of residence). It is better to submit the application immediately, along with signing the protocol. After signing the protocol, you have every right to immediately take a copy for yourself.
Where can you complain about a traffic police decision?
A complaint may be submitted to the following authorities:
- the head of the traffic police;
- local or district court;
- prosecutor's office
Practice shows that the likelihood of a decision being canceled when filing a complaint with the higher authorities of the traffic police is very small. The traffic police department is not too interested in lifting sanctions, since this would damage reputation and statistics, so it is undesirable to rely on this authority.
Only the court has the right to cancel a decision. If after the court hearing the plaintiff is dissatisfied with the decision, he has the right to appeal to the Supreme Court.
Important! Decisions made by the courts of the constituent entities of the Russian Federation (regional, republican) are not subject to appeal. The decision comes into force immediately after the trial.
What happens if you don’t sign the traffic police report?
Few people know what needs to be done to avoid problems later with appealing the protocol. You have at least two solutions:
1Refuse to sign the protocol. To do this, you will need witnesses who can confirm that you really refused to sign. After the refusal, the inspector makes a special statement in the protocol.
The protocol on an administrative offense is signed by the employee who compiled it and the person in respect of whom it was drawn up. If the specified person refuses to sign the protocol, a corresponding entry is made in it.
Clause 153 of Order of the Ministry of Internal Affairs of Russia dated August 23, 2017 N 664
Accordingly, nothing will happen to you for this.
2Option two is longer. Initially, you should carefully study the protocol. If you know for sure that you did not violate the penalty imposed on you, then in the “Explanations” column you should indicate all the actions that you consider unlawful on the part of the inspector: your rights were not explained (you are not obliged to study the regulatory documents yourself), traffic rules were not violated , the car was not driven, etc. It is worth insisting that your passengers be included in the protocol as witnesses. If this is not done, enter them yourself. If there is no diagram of the violation or if it is not drawn up correctly, also indicate this in your explanation. Sign that you have received the copy only after you receive the copy.
If you chose the second option, then, based on the protocol, you will be issued a decree or decree - a receipt. The latter is drawn up if the sanctions include a fine. When the law provides for deprivation of rights or administrative arrest, the decision is made exclusively in court.
Agree that a meeting with an inspector is quite stressful. Often, drivers are so worried that they don't realize what they are signing. What to do if you signed the protocol, and then also the resolution? Appealing a traffic police protocol on an administrative offense, if you have already signed it, is similar to appealing a decision. In other words, we send the complaint either to higher authorities or directly to the court. If you wrote “I agree with the violation” in the protocol, then it is much more difficult to achieve justice; in this case, you need to seek help from a lawyer who can defend your rights in court.
If an individual directly at the scene of the commission of an administrative offense, after the initiation of a case on an administrative offense, disputes the existence of an event of an administrative offense or the administrative punishment assigned to him, including by refusing the corresponding signature in the resolution, a protocol on the administrative offense is drawn up, which is attached to the resolution on a case of an administrative offense issued in accordance with Part 1 of Article 28.6 of the Code.
Paragraph 157 of Order of the Ministry of Internal Affairs of Russia dated August 23, 2017 N 664
Please note that you cannot write anything under the dictation of a traffic police officer. This could backfire on you.
Delivery of the resolution to the person in respect of whom it was drawn up
Typically, the authority or court immediately serves the decision on an administrative offense on the violator. After it is passed. But not in court. In exceptional cases (and in court - as a rule), a reasoned resolution is made no later than 3 days after the trial. In any case, the decision on the case is announced immediately after the consideration of the case.
The day the decision on an administrative offense is issued is the day the document is produced in full. And the period for appeal begins to run from the date of receipt of the decision by the participant in the case.
Within 3 days from the date of the decision on an administrative offense, the authority (court) sends a copy of it to the participants in the case and to the official who compiled the protocol.
