As part of the legal education of citizens and raising awareness among the population, the Ombudsman provides clarifications about an appeal against a decision on bringing to administrative responsibility.
Bringing to administrative responsibility is carried out on the basis of a decision issued following the results of consideration of the protocol on administrative responsibility.
In case of disagreement with bringing to administrative responsibility for an offense provided for by the Code of Ukraine on Administrative Offenses, the person, in respect of whom it was decided, has the right to appeal against it.
The decision on an administrative offense only is subject to appeal, and not a protocol or an inspection report, during which it was revealed.
The provisions of Chapter 24 of the Code of Ukraine on Administrative Offenses provide for two appeal mechanisms. A complaint can be filed through a court or addressed to the prosecutor’s office, which, if there are grounds, can apply to the court with a submission for a decision on bringing to administrative responsibility.
When appealing against a decision in the case of an administrative offense, one should remember the short deadline for filing a complaint. According to the provisions of Article 289 of the Code of Ukraine on Administrative Offenses, the complaint is submitted within ten days from the date of the decision. If the specified period is missed for valid reasons, this period, at the request of a person, in respect of whom the decision was made, can be restored by the body (official) competent to consider the complaint.
Filing a complaint or submission of a protest from a prosecutor suspends execution of the order prior to their consideration.
The grounds for cancelling the decision on bringing to administrative responsibility are:
– failure to a procedure for bringing to administrative responsibility;
– the missed deadline for bringing to administrative responsibility, prescribed in Article 38 of the Code of Ukraine on Administrative Offenses;
– the rights, prescribed in Article 268 of the Code of Ukraine on Administrative Offenses, were not clarified to a person, who is brought to administrative responsibility;
– drawing up a protocol in the absence of a person, who is brought to administrative responsibility;
– the article or clause of the article on an administrative offense, which provides for responsibility, is incorrectly indicated;
– a protocol was drawn up in relation to a person who is not the subject of an administrative offense;
– the essence of the offense is incorrectly stated;
– absence of events and elements of an administrative offense;
– lack of signature on the decision by the official, who made the decision on bringing to administrative responsibility.
A complaint about the cancellation of a decision on bringing to administrative responsibility must contain:
– the name of the court (body) to which the complaint is submitted;
– last name, first name and patronymic (if any) of the person filing the complaint, residential address and contact telephone number;
– the decision that is being appealed;
– a statement of the facts by which an applicant substantiates his claims;
– a complaint contains, if necessary, a petition for requiring of additional evidence, to appoint a forensic examination, to question witnesses in the case.
A complaint is also accompanied by documents and evidence regarding bringing to administrative responsibility (protocol on an administrative offense, a decision on bringing to administrative responsibility).
A complaint is signed by an applicant indicating the date of signing. If the complaint is submitted by a representative of the applicant, at the same time a power of attorney is submitted to confirm the authority of the representative.
The body (official), when considering an appeal against a decision on an administrative offense, checks the legality and validity of bringing a person to administrative responsibility and makes one of the following decisions:
– leaves the decision without changes, and a complaint is not satisfied;
– cancels the decision and sends the case for new consideration;
– cancels the order and closes the case;
– changes the penalty within the limits provided for by the normative act on liability for an administrative offense.
The term for consideration of a complaint against a decision on an administrative offense is 10 days from the date of application.