Конституционный суд признал норму о выборе способа отказа в возбуждении дела конституционной, так как она не позволяет должностному лицу выносить решение об отказе в иной форме, кроме определения, независимо от того, как проверялись изложенные в обращении факты.
Не противоречит Конституции норма о порядке судебного контроля за законностью формы отказа. Она не запрещает обжаловать вынесенный не в форме определения отказ по правилам соответствующей главы АПК во взаимосвязи с положениями КоАП. Оспорить такой отказ можно и по правилам другой главы АПК в связи с несоответствием его формы требованиям КоА
Документ: Постановление Конституционного Суда РФ от 30 марта 2021 г. N 9-П «По делу о проверке конституционности части 5 статьи 28.1 Кодекса Российской Федерации об административных правонарушениях и части 3 статьи 201 Арбитражного процессуального кодекса Российской Федерации в связи с жалобой гражданки О.С. Яковенко»
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