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Lecture notes, cheat sheets
Advocacy and notary office. Activities of a lawyer in administrative proceedings (lecture notes)
Directory / Lecture notes, cheat sheets Table of contents (expand) LECTURE No. 13. Activities of a lawyer in administrative proceedings 1. The main areas of activity of a lawyer in administrative proceedings The legal basis for the participation of a lawyer in the process of proceedings in cases of an administrative offense is given in the Constitution of the Russian Federation (Article 48) and in the Code of Administrative Offenses of the Russian Federation (Article 25.5). A lawyer or other person is allowed to participate in the proceedings on an administrative offense as a defense counsel or representative. The powers of a lawyer are certified by a warrant issued by a legal advisory office. Powers of another personproviding legal assistance are certified by a power of attorney issued in accordance with the law. The defense counsel and the representative are allowed to participate in the proceedings on the case of an administrative offense from the moment of drawing up the protocol on an administrative offense. In the case of administrative detention of an individual in connection with an administrative offense, a defense counsel is allowed from the moment of administrative detention. A defense counsel and a representative admitted to participate in proceedings on a case of an administrative offense have the right to get acquainted with all the materials of the case, present evidence, file motions and challenges, participate in the consideration of the case, appeal against the application of measures to ensure the proceedings in the case, the decision on the case, use other procedural rights under the law. Evidence in the case of an administrative offense - this is any factual data on the basis of which the judge, body, official in charge of the case establishes the presence or absence of an event of an administrative offense, the guilt of the person brought to administrative responsibility, as well as other circumstances that are important for the correct resolution of the case. These data are established by a protocol on an administrative offense, other protocols provided for by law, explanations of the person in respect of whom proceedings are being conducted on an administrative offense, testimonies of the victim, witnesses, expert opinions, other documents, as well as testimonies of special technical means, material evidence. Explanations of the person in respect of whom proceedings are being conducted on the case of an administrative offense, the testimony of the victim and witnesses are information relevant to the case and reported by the said persons orally or in writing. In cases where, during the proceedings on a case of an administrative offense, it becomes necessary to use special knowledge in science, technology, art or craft, the judge, body, official in charge of the case shall issue a ruling on the appointment of an expert examination. The definition is binding on the experts or institutions entrusted with the examination. The expert's opinion is not binding on the judge, body, official in charge of the administrative offense case, but disagreement with the expert's opinion must be motivated. When examining material evidence the lawyer must take an active position, especially he must be attentive when studying the documents. Documents are recognized as evidence if the information stated or certified in them by organizations, their associations, officials and citizens is relevant for the proceedings on an administrative offense. Documents may include photographic and filming materials, sound and video recordings, information databases and data banks, and other information carriers. Unfortunately, all actions under the Code of Administrative Offenses are carried out by authorized bodies. And the right to conduct their own investigation by lawyers is not spelled out in the Code. A case of an administrative offense is considered within fifteen days from the date of receipt by the judge, body, official authorized to consider the case, the protocol on the administrative offense and other materials of the case. When the consideration of the case on an administrative offense is continued, a protocol on an administrative offense is announced, and, if necessary, other materials of the case. Explanations of a natural person or a legal representative of a legal entity in relation to whom proceedings are being conducted on an administrative offense are heard, testimony of other persons participating in the proceedings, explanations of a specialist and an expert’s opinion, other evidence is examined, and in the case of the participation of a prosecutor in the consideration of the case, his conclusion. The law does not provide a lawyer with such a right, i.e. there are no debates between the parties. Based on the results of the consideration of a case on an administrative offense, a decision may be issued: 1) on the imposition of an administrative penalty; 2) on termination of proceedings on the case of an administrative offence. 2. Appeal against decisions on an administrative offense When appealing a decision on an administrative offense, a lawyer must take into account jurisdiction. The relevant rules are established by art. 30.1 of the Code of Administrative Offenses of the Russian Federation. In the event that a complaint against a decision in a case concerning an administrative offense has been submitted to the court and to a higher authority, to a higher official, it shall be considered by the court. Based on the results of consideration of the complaint, a decision is made. The decision on the case of an administrative offense committed by a legal entity or a person engaged in entrepreneurial activities without forming a legal entity is appealed to an arbitration court in accordance with the arbitration procedural legislation. A complaint against a decision in a case on an administrative offense is filed with the judge, body, 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, higher official within 3 days from the date of receipt of the complaint. A complaint against a judge's decision to impose an administrative penalty in the form of administrative arrest shall be sent to a higher court on the day it is received. A complaint can be filed directly with a court, a higher authority, a higher official authorized to consider it. If the consideration of the complaint does not fall within the competence of the judge, official who appealed against the decision in the case of an administrative offense, the complaint shall be sent for consideration according to jurisdiction within 3 days. The law establishes time limits for appealing against a case on an administrative offense A complaint against a decision on a case on an administrative offense may be filed within 10 days from the date of delivery or receipt of a copy of the decision. If for some reason the deadline is missed, then at the request of the person filing the complaint, it can be restored by a judge or an official authorized to consider the complaint. A ruling shall be issued on the rejection of a petition for the restoration of the term for appealing against a decision in a case concerning an administrative offense. An appeal against a decision in a case concerning an administrative offense is subject to consideration within ten days from the date of its receipt with all the materials of the case to the court, body, official authorized to consider the appeal. A complaint against a decision on administrative arrest is subject to consideration within XNUMX hours from the date of its filing, if the person brought to administrative responsibility is serving an administrative arrest. The legislator determines that one of the following decisions can be taken on the complaint: 1) on leaving the resolution unchanged, and complaints without satisfaction; 2) on changing the decision, if this does not increase the administrative penalty or otherwise worsen the situation of the person in respect of whom the decision was made; 3) on the annulment of the decision and on the termination of the proceedings on the case due to its insignificance or under the circumstances mentioned earlier when explaining why the proceedings on the case may be terminated or may not be started at all, as well as if the circumstances on the basis of which the decision was made were not proved; 4) on the cancellation of the decision and on the return of the case for a new consideration to the judge, body, official authorized to consider the case, in cases of significant violation of procedural requirements, if this did not allow for a comprehensive, complete and objective consideration of the case, as well as in connection with the need to apply the law on an administrative offense entailing the appointment of a more severe administrative penalty, if the victims in the case filed a complaint about the leniency of the applied administrative penalty; 5) on the cancellation of the decision and on sending the case for consideration according to jurisdiction, if during the consideration of the complaint it is established that the decision was issued by an unauthorized judge, body, official. Decision not entered into legal force in the case of an administrative offense and (or) subsequent decisions of higher authorities on complaints against this decision can be appealed in accordance with Art. 30.10 of the Code of Administrative Offenses only by the prosecutor. Thus, the lawyer can send a complaint to the prosecutor, who, if he considers the arguments convincing, can appeal against the decision. This generally narrows the right to protection on the part of those brought to administrative responsibility, making it dependent on a state official, such as a prosecutor. Author: Nevskaya M.A. << Back: Activities of a lawyer in constitutional proceedings (Participation of a lawyer in constitutional proceedings. Participation of a lawyer in a meeting of the Constitutional Court of the Russian Federation and in legal proceedings to clarify the decision taken) >> Forward: Legal services of a lawyer (The concept and types of representation in tax legal relations. 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