Whether the inspector has the right to inform on date of court session?
Tens of disputes arise concerning the due notice of date and time of court session. Whether it is worth taking notices from hands of the inspector of traffic police? Whether can issue the decree without participation of the person brought to administrative responsibility?
On the basis of item 2 of Art. 25. 1 Code of the Russian Federation on Administrative Offences case of an administrative offense is considered with participation of the person concerning which the proceeding of an administrative offense is conducted. In the absence of the specified person case can be considered only in cases if there are data on the appropriate notice of the person on time and the place of consideration of the case and if the petition for consideration adjournment from the face did not arrive, or such petition is left without satisfaction. Item 4 of Art. 29. 4 To the Code of the Russian Federation on Administrative Offences it is established what when considering the case needs to be found out whether participants of proceeding properly are informed, and the reasons of absence of specified persons become clear.
Becomes clear that the notice of the citizen on time and the place of consideration of the case on an administrative offense is obligatory, except for cases when the decree is issued on the place. If for a responsible offense to the driver only the penalty is put, then will issue the decree in traffic police.
In a case when for the offense imputed to the citizen besides deprivation the penalty, according to Art. 23 is possible. 1 item 2 Administrative Code the judge has no right to consider case of an administrative offense if it was not considered previously by body of traffic police.
Business on articles attracting uncontested punishment in the form of deprivation of the right of control of vehicles has to undergo the same procedure of preliminary consideration. If case was not considered previously by body of traffic police, then it contradicts Art. 28. 8 Administrative Code as business transfer thus is not provided at a stage of preparation for consideration according to Art. 29. 4 Administrative Code are also allowed only after consideration on the basis of Art. 29. 9 Administrative Code.
Removal of definition about transfer of case of an administrative offense to the judge is result of consideration of case papers. In definition, according to Art. 29. 12 items of 1 subitem 5 the Administrative Code, have to be specified circumstances, it is specified about satisfaction or refusal in satisfaction of petitions if such were declared and on them separate definitions were not taken out.
Thus if in the case papers brought to trial definition is absent or in it there are mistakes (not those surnames are specified, there does not correspond the state registration sign, brand or model of the car, date of a perfect offense etc.) it is the sufficient basis for return of materials to traffic police. However such return is actually impossible as in the p. 2 of Art. 29. 9 Administrative Code it is specified about impossibility of removal of definition about return of materials by results of case papers. Thus, the citizen has the right to declare the petition for determination of proceedings.
Now it is necessary to consider the most controversial issue concerning of the right of the notice of persons on date and the place of consideration of the case by the staff of traffic police. it is obvious that in a case when IDPS issued the notice or specified about time and date of court session in the protocol on an administrative offense, it roughly broke the procedure described above: the summons was issued before removal of definition about transfer of business to court. Transfer put in court without consideration in traffic police as we already found out, Art. 28 contradicts. 8 Administrative Code, such transfer of business it is not provided at a stage of preparation for consideration according to Art. 29. 4 The Administrative Code is also allowed only after its consideration (Art. 29. 9 Administrative Code).
We so in detail concerned this question not incidentally as the question of the due notice is closely connected with other procedural actions which officials have to make, and the knowledge of these features is an additional opportunity for protection implementation.
Whether it is possible to notify on date, time and the place of consideration in the protocol on an administrative offense? Often instead of specifying about date of time and the place of consideration in traffic police (as in the first instance), at once write a judicial site and besides date determine time of consideration of the case. That the notice on date of a meeting in the protocol is not the due notice
it is specified by b in PPVS Russian Federation of October 24, 2007 N 45 - AD07 - 13, and also according to the Resolution of Plenum of the Supreme Court of the Russian Federation No. 52 of December 27, 2007 item 10.
Pay on it special attention. As in case of the notice on date of a meeting in the protocol, and in case of obtaining the notice on the separate form from hands of the inspector it is recommended to be on court session in due time in hope for the subsequent contest. A day before court send the telegram to court with a request to notify you properly.
According to pct 1, 2 p.1 Art. 29. 4 Codes of the Russian Federation on Administrative Offences permission of questions of timing and places of consideration of the case about an administrative offense and a call of the persons specified in Art. 25. 1 - 25. 10 Codes of the Russian Federation on Administrative Offences, are carried to competence of the judge (body, the official) authorized to consider case of an administrative offense. The inspector of traffic police is not the person authorized to consider this case, therefore, and he has no right to inform.
According to the explanation which is contained in the item. 6 resolutions of Plenum of the Supreme Court of the Russian Federation of March 24, 2005 No. 5 “ About some questions arising at vessels at application of the Code of the Russian Federation about administrative offenses “ for observance established to Art. 29. 6 Codes of the Russian Federation on Administrative Offences of terms of hearing of cases about administrative offenses the judge needs to take measures for the fast notice of the persons participating in case of time and the place of consideration of the case. The code does not contain any restrictions connected with the notice of persons and depending on concrete facts of the case the notice can be made with use of any available means of communication allowing to control obtaining information by the person to which it is sent: notice, telegram, telephone message, fax, mailing.
Thus, despite everything the contradictions described above, delivery of the judicial agenda about time and the place of court session can be made also by the employee of traffic police . The fact of delivery of the agenda makes sure the signature of the person concerning whom the proceeding of an administrative offense, on an agenda back which comes back to court is conducted. Besides, courts still continue to consider as the due notice and a mark in the protocol.
In the following article we will in detail consider other questions concerning the notification of the person brought to administrative responsibility. For now - do not break! Do not create to yourself excess problems! Good luck on roads!