What to consider as the due notice of date of court session?
In last article we considered a question of the notification of the citizen the inspector about date and time of court session. It is necessary to agree that there are a lot of difficulties. But, believe, even when courts distribute notices on need of an appearance in court, and here not everything is so simple and smooth. Let`s consider in more detail.
The fact that sent you the agenda does not mean yet that you were notified properly. In the Resolution of the vice-chairman of the Supreme Court N 11 - AD05 - 4 (The bulletin of the Supreme Court No. 3 for 2006) it is told that the certificate of the court clerk of the direction to the person concerning which the proceeding of an administrative offense is conducted of the judicial agenda about the place and time of consideration of the case in court does not confirm the appropriate notice of the person. Thus, it turns out that other document or the actual confirmations demonstrating that the citizen is notified properly is necessary.
Sending notices, and their secretaries of judicial sites send, the back is filed. Judges, often contrary to the requirement the Administrative Code, start consideration of the case without participation of the person made responsible without finding out the reason of absence of this person. And the reasons can be much: the citizen is in business trip, is on treatment in medical institution and in general could just not receive notices from - for negligence of workers of mail.
In the same way judges do not trouble themselves clarification of circumstances if the notice for any reason returned or on a back there is a mark: refused receiving. Despite the lack of a case law per se, but the most part of illegally issued decrees nevertheless manages to be repealed. For example, lack of the signature on a back and a mark of the mail carrier “ refused receiving in the presence of such - that the persons “ does not mean at all that the citizen of N to whom the notice was intended refused its receiving, the identity of the citizen, as well as other adjusting data, were not checked by the mail carrier.
If to the specified address at the time of delivery of correspondence it appeared nobody, then in a mailbox of the addressee the notice with the invitation to receive the notice directly in post office where the letter will be stored certain time is left. At absence of the addressee behind a category " mailing; Judicial “ within 3 working days after delivery of the first notice to it it is delivered repeated. The departures of the category " which are not handed to the addressee; Judicial “ come back on the return address of a judicial site after 7 days from the date of their revenues to mail.
At the same time, it is important to pay attention to an envelope subsequently. If the court secretary sent the notice the usual registered mail, then such letter has to be stored by mail within 1 month. Having received the notice in a mailbox, pay attention to existence of the mark “ judicial “. If there is no such mark, regardless of the sender the letter has to be stored 1 month. If the letter left earlier, it will mean lack of the due notice.
Pay attention to the notice which came back to court. Attentively get acquainted with marks in it and compare dates. Lack of additional marks about refusal, about leaving of the person and some other mean lack of the due notice.
Apparently from above-mentioned explanations of the existing documents, at serious approach to this question any protection position used by you in court can be supported with the fact of lack of the due notice in details.
I suggest to consider possible situations according to the notification of citizens and to define your actions.
The notice came next day after the meeting appointed in it dates . You should not go or call in a judicial site. In this case perhaps 2 options: or you shortly receive the new notice, or to you the decree will be issued. For the proof of the fact of untimely obtaining the letter it is necessary to leave the statement or a claim by mail. Such claim is written in duplicate with the indication of an essence of an event. On your copy it is necessary to receive a mark about acceptance of this claim. In case the decree was issued - it is subject to cancellation, and business by superior court has to be sent for new consideration. After obtaining the resolution it is enough to wait 10 - the dnevny term which is given you on the appeal of the resolution, and on 10 - y day to direct the complaint by mail. It in some cases allows to achieve the expiration of two-month term and, as a result, determination of proceedings - business cannot already be sent for new consideration and it is necessary only to repeal the resolution and to stop proceeding.
The notice did not come at all, and the decree was issued. In this case in the way described above to repeal the resolution and to send business for new consideration, most likely, will not manage as it is almost impossible to prove the fact of lack of the notice in your mailbox. The resolution is subject to the appeal in the general order in superior court. However to try to take the above described opportunity and other materials in this chapter everything is it is recommended.
The notice was received from the staff of traffic police, but in the site of materials specified by inspectors it did not appear. Later some time you learn that the decree was issued by other judicial site. The resolution is subject to cancellation and has to be sent for new consideration. Once again it would be desirable to note that the staff of traffic police has the right to issue summonses - the Supreme Court of the Russian Federation gave to traffic police pochtalyonsky authority, but at the same time, they, certainly, often are mistaken and send the violator to a site not on jurisdiction. Inspectors unintentionally are mistaken at the indication of number of a judicial site - the house number specified in the protocol as the place of commission of an administrative offense can belong already to other site, than on what the inspector keeps watch. The judge who received these materials having no right to consider case also transfers them on jurisdiction to other judge. At a stage of removal of definition about transfer of materials to court to traffic police can also establish a mistake and direct business on jurisdiction, and already the judge authorized to consider your case is obliged to inform you properly.
So, if case was considered without you - make the complaint . The main argument - Pronouncement of the resolution on involvement of the citizen to administrative responsibility without your participation that did not allow you to carry out protection, including for the reason that there are circumstances and proofs which could affect a judgment.
Remember that a legal process of hearing of cases about administrative offenses means obligatory creation of the conditions by court necessary for realization of a constitutional right on judicial protection of the person brought to administrative responsibility and if you such right were deprived, it is the worst violation.
Proceeding from provisions of the p. 2 of Art. 25. 1 Code of the Russian Federation on Administrative Offences with the right of the person concerning which the proceeding of an administrative offense is carried out, to participate in consideration of the case and to be present at court session assigns a duty to give to the person such opportunity to court.
Defend the correctness! And it is even better - not to break and preserve thereby both time, and money, and nerves! Good luck on roads!