In today's world, eyewitnesses who would confirm the absence of a violation or the fact of a violation of traffic rules are talked about all the time. In our article, we would like to tell you what the difference is between eyewitnesses and attesting witnesses when drawing up a protocol. I would like to immediately remind you that according to the article of the Russian Federation on the Administrative Offenses, “any person who knows anything about a particular case can give testimony in a case.” These persons include a traffic police inspector, close relatives, and other persons.
The situation is a little more difficult with witnesses. Therefore, it is necessary to decide who can be attesting witnesses, what their role is and in what circumstances the presence of attesting witnesses is mandatory or if there are violations.
What is the difference between eyewitnesses and witnesses? Based on the articles of the Russian Federation on administrative violations in the production of measures to ensure the safety of a traffic police officer, in whose proceedings there was a case about the administrator. offense, any adult who is not interested in the outcome of the case may be involved. This particular person is called a witness. In the protocol, the witness certifies with his own signature the fact of the commission of procedural actions in his presence, their results and content.
In the proceedings regarding the participation of witnesses, an entry is made in the protocols. The most common violations occur when it comes to recruiting witnesses when confiscating a driver’s license, because sometimes a separate protocol is drawn up about the confiscation of a driver’s license. Therefore, a record of the confiscation of a driver’s license is made in the protocol of the administrator himself. offense.
To prevent a probable statement from the judge, when you file a complaint against a decision or an explanation of the case, that when drawing up a protocol on an offense, the presence of attesting witnesses is not required. It should be noted that if a driver violates traffic rules, he is liable, for which the sanction “deprivation of the right to drive a car” is provided - the driver’s driver’s license is taken away until a decision is issued.
Based on the Article of the Russian Federation on Administrative Offenses, the seizure of things that were the subjects of an administrative offense or instruments of commission, and documents that have the value of evidence in the case of an administrator. offense and found at the scene by the administrator. offenses are carried out by persons specified in the Code, in the presence of a pair of witnesses.
When committed by the administrator. an offense that entails deprivation of rights, the driver will be asked to obtain a driver’s license and will be issued a temporary permit to drive a car for the period until a decision is made in the case of the administrator. offense, but this period cannot exceed more than two months .
A separate protocol will be drawn up about the seizure of documents or an entry will be made in the protocol about the administrator. offense, in our case this was done. Witnesses must certify with their signature the fact that procedural actions were performed in their presence, their results and content. Such paper must be signed by less than two witnesses.
In addition, there must certainly be the presence of witnesses when such measures are taken against a person, such as referral for a medical examination and removal from management. As the article of the road code says, when examining the state of intoxication, removing someone from driving a vehicle of some kind, sending for a medical examination on suspicion of intoxication, it should be carried out by officials who are given the right of municipal control and supervision over the operation of the vehicle and traffic safety. The protocol must be drawn up in the appropriate form in the presence of a pair of witnesses.
In addition, the Resolution of the Plenum of the Road Inspectorate of our country from 2008 states that witnesses must certainly be present when drawing up a protocol on referral for a medical examination, and in this case, if there is no information about witnesses in the protocol, then this document must be considered in accordance with the law.
Therefore, if there are no witnesses, recruitment to the administrator. liability cannot be legitimate, because the presence of witnesses during all procedural actions is a guarantee of ensuring the rights of a person who has been brought to administrative responsibility; this is done in order to eliminate any doubts regarding the correctness and completeness of recording in the contents of the protocol the results of procedural actions of police officers . Also, a traffic police officer should not be involved as a witness when working on administrative cases. offenses stipulated by the head of the Code of Administrative Offenses of our country “Administrative offenses regarding traffic on the roads.”
In turn, the witness can make comments in the protocol of the procedural actions that were performed. It is also worth noting that, if necessary, the witness will be called for questioning as an eyewitness.
In conclusion, I would like to say that if you were stopped by a traffic police inspector and asked to sign a protocol as a witness or an eyewitness, think about signing the protocol and diagram and acting as an eyewitness if you did not see the coercive measures taken or this violation.
Be honest and attentive!
Fortunes on the roads!
Witnesses
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(more details on this page) .
official forgery
Witnesses
According to the Code of Administrative Offenses of the Russian Federation4, any adult who is not interested in the outcome of the case can be brought in as a witness.
The number of witnesses must be at least two. The witness certifies in the protocol with his signature the fact of the commission of procedural actions in his presence, their content and results. The participation of witnesses in proceedings regarding an administrative offense is recorded in the protocol.
witnesses .
1. Changes to the protocol were made without the driver’s knowledge
- Officials do not have the right to independently, unilaterally correct procedural documents (protocols, acts, etc.). In paragraph 4 of the resolution of the Plenum of the Armed Forces of the Russian Federation “On some issues that arise for courts when applying the Code of Administrative Offenses of the Russian Federation” dated March 24, 2005, it is stated that if a protocol on an administrative offense is drawn up or other materials are drawn up incorrectly, the judge must make a ruling on the return of these documents to body or official who compiled them (clause 4, part 1, article 29.4 of the Code of Administrative Offenses). The data in the protocol did not allow us to draw a conclusion about the specific place where the offense was committed. The traffic police clarified the address, signing on the documents “to believe the corrected one.” The driver did not was present, and he was also not informed - which violates the requirements of the Code of Administrative Offenses of the Russian Federation (Parts 4, 4.1, 6, Article 28.2) (case of the Supreme Court of the Russian Federation No. 82-AD16-3). Near the notes there are stamps of the traffic police department and “corrected believe” , but there are no signatures of the alleged violator. The traffic police inspector independently “reclassified” the driver’s violation. Thus, the person against whom proceedings are being conducted for an administrative offense was deprived of the guarantees provided by law for the protection of his rights, since he could not competently object and give explanations for the essence of the changes made to procedural acts.
- A copy of the protocol on the offense differs from the document presented by the traffic police: already in the absence of the driver, the traffic police inspector entered the word “repeated” into the protocol, accordingly correcting the record of the violation - from part 1 to part 4 of Art. 12.8 Code of Administrative Offences. At the same time, there is no evidence that they tried to hand over the corrected protocol to the driver. This was confirmed by the testimony of a traffic police officer.
- The content of the administrative offense protocol in the case does not correspond to the copy of the same protocol handed to him by the traffic police officer; the protocol on referral for a medical examination and the magistrate’s ruling on accepting the case for proceedings and scheduling a court hearing were not signed.
- The protocol was lost, and a duplicate protocol was not drawn up in the presence of the driver; he was notified of the document in the proper manner, which violates the norms of the Code of Administrative Offenses of the Russian Federation (Parts 4, 4.1, 6 of Article 28.2). There is no reason to believe that the duplicate protocol was drawn up in compliance with the requirements of the code, which means that the copy of the protocol available in the case cannot be considered as evidence of the driver’s guilt (case No. 44-AD16-17).
2. The protocol was drawn up without witnesses
- In Part 2 of Art. 25.7 of the Code of Administrative Offenses states that traffic police officers must carry out an examination for alcohol intoxication and a referral for a similar examination to a medical institution in the presence of 2 witnesses (who certify the completion of procedural actions with their signatures in the protocol) or using a video recording (which is also recorded in the protocol) . If there were no witnesses, a video taken by a traffic inspector should be attached to the case file.
Witnesses and witnesses
When the case materials do not contain such a record or information about witnesses, the judge is obliged to return them to the official who drew up the protocol (clause 4, part 1, article 29.4 of the Code of Administrative Offenses);
- The witness explained to the court that traffic police officers did not show him the driver who refused to blow through the breathalyzer, and that he did not remember whether they told him that this citizen refused to go for a medical examination at the hospital. The second witness was not called to court. At the same time, the protocol contains an entry made by the traffic police inspector, “he refused to undergo a medical examination,” not certified by the driver’s signature, and there is no note “he refused to sign.” The protocols received under such circumstances on suspension from driving a vehicle and on sending for a medical examination were recognized as unacceptable evidence in the case as obtained in violation of the requirements of the Code of Administrative Offenses of the Russian Federation.
3. The protocol does not contain mandatory information
- The inspector did not indicate on what basis he sent the driver for a medical examination. This can be done if you refuse to undergo an on-site examination, disagree with its results, or if there are signs of intoxication with negative breathalyzer readings.
- The driver’s agreement or disagreement with the results of the examination did not appear in the report; there was not a single driver’s signature there - in all the columns where its presence was required, there was a “refused” mark. The protocol by which the driver was sent for examination to a drug dispensary did not obtain the driver’s consent to undergo this procedure, there are no signatures of the driver and witnesses. At the same time, the protocol was drawn up earlier than the certificate of examination for alcohol intoxication, in violation of the order established by clause 1.1 of Art. 27.12 Code of Administrative Offenses of the Russian Federation. The above circumstances do not allow us to conclude that the traffic police official complied with the procedure prescribed by law for establishing the fact that the person driving the vehicle is intoxicated, and indicate the presence of irremovable doubts about the guilt of E. A. in committing the administrative offense imputed to him.
Witnesses
Before starting a conversation about the role of witnesses in administrative proceedings, it would not be amiss to define the very concept of “witness”.
The Code of the Russian Federation on Administrative Violations1 states the following:
A person who may be aware of the circumstances of the case to be established may be called as a witness in a case of an administrative offense.”
This means that a witness can be any adult passenger in your car, husband, wife, brother, sister, friend, mother-in-law, etc., if they can testify in a criminal case.
Very often, inspectors do not take into account the testimony of passengers, citing the fact that they are interested parties and cannot be witnesses. In such a situation, read the text of Article 25.6 of the Code of Administrative Offenses to the inspector (see above), and also be sure to reflect your complaints in the explanation column in the protocol (for more details, see the section “Procedure for drawing up an administrative protocol”) , in the future this will simplify the process of appealing the decision in court (for more details, see the section “Appealing the decision”) .
There are cases when information about witnesses appears in the protocol after it has been signed. To prevent such illegal entry of information into a document, make sure that all empty columns of the protocol contain the “Zorro sign” (Z).
If such an unpleasant situation nevertheless happened to you - in the “Witnesses” column you unexpectedly discovered new names - then when appealing the decision in court (more details on this page) petition to call these “witnesses” into the courtroom to testify. You will be pleasantly surprised how difficult it is to answer the judge’s questions for a person who has not seen the offense itself, and who is obligated to appear in court by the same Article 25.6 of the Code of Administrative Offenses of the Russian Federation (it is shown on this page) .
You should know that if a traffic police inspector enters “fake” witnesses into the protocol or refuses to indicate the passengers of your car as witnesses, then he commits a criminal offense - official forgery, liability for which is provided for by the Criminal Code of the Russian Federation2 and provides for punishment in the form of a fine, compulsory labor, correctional labor, forced labor, arrest for up to six months or imprisonment for up to two years.
Report this to the inspector, perhaps his conscience will awaken and he will begin to act as he should - within the framework of the Law.
Also, “fake” witnesses and witnesses can be exposed by contacting a lawyer. He can submit a request to the address bureau and thus verify the fact of registration of these people at the address recorded by the inspector. A lawyer has many other techniques that he can use to protect your interests.
No less common is a situation on the road when an inspector, drawing up a protocol, stops another car and asks the driver of this car to act as a witness and sign the protocol. What’s offensive is that many people sign without thinking, rejoicing that they weren’t stopped for a violation, but simply to sign. In this case, inform the pseudo-witnesses that you will request that they be subpoenaed to testify.
Who can be a witness: his status and characteristics
Explain to them that by law they will be required to appear at the court hearing. And also remind you that giving knowingly false testimony is a crime for which the article of the Code of Administrative Law Violations of the Russian Federation3 provides for punishment - the imposition of an administrative fine.
Witnesses
According to the Code of Administrative Offenses of the Russian Federation4, any adult who is not interested in the outcome of the case can be brought in as a witness. The number of witnesses must be at least two. The witness certifies in the protocol with his signature the fact of the commission of procedural actions in his presence, their content and results. The participation of witnesses in proceedings regarding an administrative offense is recorded in the protocol.
Witnesses can also act as witnesses 5 according to the circumstances of the correctness of the actions of officials when drawing up procedural documents, for example, when a police officer conducts a procedure for examining a driver for alcohol intoxication using special technical means (section “Alcohol intoxication”) .
When considering a case of an administrative offense, the court was deprived of the opportunity to interrogate witnesses to verify the legality of removing the driver from driving a vehicle and conducting an examination for alcohol intoxication. The statement of the person against whom proceedings were conducted for an administrative offense that he did not drink alcohol and that the traffic police inspector’s witnesses were not involved in participating in the procedural actions was not refuted.
Proceedings in the case of driving while intoxicated were terminated due to the absence of an administrative offense.
P O S T A N O V L E N I E
on termination of proceedings
about an administrative offense
Yekaterinburg (Date removed)
Judge of the Yekaterinburg Garrison Military Court Shargorodsky I.G., with secretary Dubova E.A., with the participation of the traffic police inspector of the traffic police regiment of the State Traffic Safety Inspectorate for the municipality "City of Yekaterinburg" Maslova A.V., the person against whom proceedings are underway for an administrative offense , Ya. and defender A.A. Krupenko, having considered the case of an administrative offense under Art. 12.8, part 1 of the Code of Administrative Offenses of the Russian Federation, in relation to Ya. (personal data withdrawn),
U S T A N O V I L:
Ya. is accused of (date withdrawn) at 0:25 a.m. in Yekaterinburg, near house No. ... on Lyapustina Street, he was driving a car ..., state registration plate ... in a state of intoxication. In this regard, a case was initiated against him for an administrative offense under Part 1 of Art. 12.8 Code of Administrative Offenses of the Russian Federation.
Confirming the existence of the offense imputed to Ya. and his guilt, the traffic police authority presented protocols on the administrative offense and on the suspension from driving a vehicle, the certificate of examination for intoxication and the paper attached to it, as well as the report of the traffic police inspector Maslov. These materials contain information that at 0:25 a.m. (date removed) Ya., driving a car ..., state registration plate ..., was stopped by a traffic police squad at the house ... on Lyapustina Street in Yekaterinburg. From the protocol on removal from driving a vehicle and the certificate of examination for intoxication, it follows that in the presence of witnesses M1 and M2, inspector Maslov removed Ya. from driving the car and examined the latter for intoxication due to the presence of signs of alcohol intoxication: the smell of alcohol on the breath, instability postures, behavior inappropriate to the situation. From the examination report and the paper data, it follows that during the examination of Ya. using the Alkotektor measuring device, the concentration of alcohol vapor in the air exhaled by the named person was 0.540 mg/l, which gave the inspector grounds to state the state of intoxication. In the same act, Y. made a note that he agreed with the results of the examination, and in the protocol on the administrative offense he indicated in the explanation that he drank 0.33 liters of beer before driving the car.
When the judge considered the case, Ya. did not admit guilt. At the same time, he explained that in the first hour (date withdrawn) on Lyapustina Street in Yekaterinburg, while driving a car, he was actually stopped by traffic police officers. At the inspector's suggestion, he performed an examination test, and the device determined the state of intoxication. Then the inspector drew up protocols and a report, copies of which were not given to him. There were no witnesses during the examination and drawing up reports. Considering that it was useless to argue with the traffic police officers, he also signed the protocols, indicating that he agreed with the violation. He did not drink alcohol before driving.
At the court hearing, traffic police inspector Maslov explained that when he stopped Ya, he realized from the smell emanating from the latter and his behavior that he was intoxicated. To remove Ya. from driving and conduct an examination, he stopped arriving citizens, whom he brought in as witnesses. He established the identity of the witnesses from their own words and did not check the documents of these citizens. Having examined Ya using a measuring instrument and received data that the permissible concentration of alcohol vapor was exceeded, he drew up the necessary act in the presence of witnesses. Ya. did not dispute the results of the examination and did not deny his guilt.
In accordance with Art. 25.7 of the Code of Administrative Offenses of the Russian Federation, a witness is an adult person who is not interested in the outcome of the case, who certifies in the protocol with his signature the fact of the commission of procedural actions in his presence, their content and results. Article 27.12 of the Code of Administrative Offenses of the Russian Federation provides that removal from driving a vehicle and examination for alcohol intoxication is carried out in the presence of two witnesses.
To eliminate contradictions in resolving this case, the judge, having granted the defense lawyer’s request, decided to call and interrogate M1 and M2 as witnesses, attracted, as indicated in the protocol and the act, by inspector Maslov as witnesses. Meanwhile, it was not possible to call the named persons. From the certificates and explanations of citizen D. received from the chief of staff of the department of internal affairs for the Talitsky city district, it follows that citizen M1 in the city of Talitsa on the street ..., house ... apartment ... does not live and there is no information about his registration in the OUFMS. From the testimony of inspector Maslov it follows that the police were unable to establish the location of witness M2 for two days. During the inspection, it was found that M2 in Yekaterinburg on the street ..., house ..., apartment ... is not inhabited. Maslov testified that the traffic police do not have any other information regarding M1 and M2.
It should be concluded that the judge is deprived of the opportunity by questioning witnesses to verify the fact of the examination, the content and results of this procedural action. Having no other way to eliminate the contradictions, it is necessary to conclude that it is impossible to verify the legality of the examination and the reliability of the results obtained and doubts about Ya’s guilt, based on his explanation during the consideration of the case, cannot be eliminated. Ya.’s statement that he did not drive a vehicle while intoxicated, as well as that he was removed from driving without witnesses and was examined for intoxication by the examined evidence, is not refuted by the examined evidence.
In coming to this conclusion, the court also takes into account the provisions of Art. 1.5 of the Code of Administrative Offenses of the Russian Federation states that a person brought to administrative responsibility is not obliged to prove his innocence, and irremovable doubts about the guilt of a person brought to administrative responsibility are interpreted in favor of this person. As for Y.’s fulfillment of the above entries in the administrative offense protocol and the examination report, they themselves cannot serve as sufficient evidence of the existence of the offense imputed to him and his guilt, since they were obtained in the absence of a real opportunity to use the help of a defense lawyer.
In accordance with Art. 2.1 of the Code of Administrative Offenses of the Russian Federation, an administrative offense is recognized as an unlawful, guilty action (inaction) of an individual or legal entity for which administrative liability is established by the Code. In this particular case, the court states that the evidence examined at the court hearing did not at all establish the fact that Ya was intoxicated while driving and comes to the conclusion that there was no event of the administrative offense charged against him.
Guided by Art. Art.
Witnesses and attesting witnesses when registering road accidents and violations - what is the difference?
24.5, 26.11, 29.9, 29.10 Code of Administrative Offenses of the Russian Federation,
P O S T A N O V I L:
Terminate the proceedings in the case of an administrative offense under Part 1 of Art. 12.8 of the Code of Administrative Offenses of the Russian Federation in relation to Ya. on the basis provided for in paragraph 1 of Part 1 of Art. 24.5 of the Code of Administrative Offenses of the Russian Federation, due to the absence of an administrative offense event.
Upon entry into force of the decision, the driver’s license in the name of Ya. shall be returned to the named person.
The resolution may be appealed to the Ural District Military Court within ten days from the date of delivery (receipt) of a copy of the resolution.
Genuine with proper signature.
Copy is right:
Judge of Yekaterinburg
garrison military court I.G. Shargorodsky
Protocol on administrative offense of the traffic police
Mandatory requirements for the accident protocol
Participation of witnesses in drawing up a protocol on an accident
Rights of persons held accountable
Appealing a protocol on an administrative offense
One of the reasons for stopping a driver by a traffic police officer is to establish a violation of the Traffic Rules (TRAF), for which administrative liability is provided. Let's consider the procedure for drawing up an accident report when a driver violates traffic rules. The possibility of bringing the culprit to justice depends on how correctly the protocol on the case is drawn up. A protocol drawn up with procedural violations can serve as one of the grounds for terminating the proceedings.
In accordance with the requirements of Articles 23.3, 28.3 of the Code of Administrative Offenses of the Russian Federation, the following are authorized to draw up protocols on administrative offenses for violations of traffic rules:
- head of the state road safety inspection, his deputy;
- head of the center for automated recording of administrative offenses in the field of traffic police, his deputy;
- commander of a regiment (battalion, company) of the road patrol service, his deputy;
- traffic police officers with a special rank.
In accordance with the requirements of the Code of Administrative Offenses of the Russian Federation, the Administrative Regulations of the Ministry of Internal Affairs of the Russian Federation for the execution of the state function of control and supervision of compliance by road users with requirements in the field of ensuring road safety, approved by Order of the Ministry of Internal Affairs of Russia dated March 2, 2009 N 185 (registered with the Ministry of Justice of Russia on June 18 .2009 N 14112) the grounds for drawing up a protocol on an administrative offense are:
- identification of an administrative offense, if the consideration of the case of this administrative offense is not within the competence of the employee;
- challenging by the person against whom the case has been initiated the existence of an administrative offense and (or) the administrative punishment imposed on him;
- identification of an administrative offense committed by a minor who has reached the age of sixteen;
- identification of an administrative offense that does not entail a warning, committed by a sergeant, sergeant major, soldier, sailor undergoing military service on conscription, or a cadet of a military educational institution of vocational education before concluding a contract with him for military service.
When a determination is made to initiate a case of an administrative offense and conduct an administrative investigation, a protocol on the administrative offense is drawn up at the end of the administrative investigation.
Mandatory requirements for the accident protocol
In accordance with the provisions of Art. 28.2 of the Code of Administrative Offenses of the Russian Federation, the protocol on an administrative offense indicates the date and place of its preparation, position, special rank, surname and initials of the employee who compiled the protocol, information about the person against whom the case of an administrative offense was initiated, surnames, first names, patronymics, and residential addresses , telephone numbers of witnesses and victims, if any, place, time of commission and event of an administrative offense, article of the Code of Administrative Offenses of the Russian Federation or the law of a constituent entity of the Russian Federation, providing for administrative liability for this offense, paragraph of the Road Traffic Rules (TRAF) or other regulatory legal act, violation of which admitted, explanation of the person against whom the case was initiated, other information necessary to resolve the case.
A universal sample accident protocol has been developed for use by traffic police officers (see below).
Participation of witnesses in drawing up a protocol on an accident
If witnesses participate in proceedings in a case of an administrative offense, a record of this, indicating their last name, first name, patronymic, residential address, telephone number, information about an identity document, is made in the appropriate protocol. Any adult who is not interested in the outcome of the case may be brought in as a witness. The number of witnesses must be at least two. The observations of the witness must be entered into the protocol.
According to the requirements of the Code of Administrative Offenses of the Russian Federation, the presence of witnesses is mandatory when applying the following measures in the case (provided that video recording is not used):
- delivery;
- administrative detention;
- personal search, search of things, search of a vehicle in the possession of an individual; inspection of premises, territories, things and documents located there;
- seizure of things and documents;
- suspension from driving a vehicle of the relevant type;
- examination for alcohol intoxication;
- medical examination for intoxication;
- detention of a vehicle;
- seizure of goods, vehicles and other things;
- drive unit;
- inspection of the place where the administrative offense was committed.
The witness certifies in the protocol with his signature the fact of the commission of procedural actions in his presence, their content and results.
New. With the amendments made to the Code of Administrative Offenses of the Russian Federation, the presence of attesting witnesses has become optional in cases where video recording of a procedural action is used.
In the case of the use of special technical means, their testimony is reflected in the protocol on the administrative offense. In this case, the name of the special technical means and its number are indicated.
Rights of persons held accountable
When drawing up a protocol on an administrative offense, it is mandatory to explain procedural rights to drivers (or other persons) held accountable.
Such rights are provided for in Article 25.1 of the Code of Administrative Offenses of the Russian Federation, according to which a person against whom proceedings are being conducted for an administrative offense has the right to familiarize himself with all the materials of the case, give explanations, present evidence, file petitions and challenges, and use the legal assistance of a defense lawyer
Consideration of a petition when drawing up a protocol on an accident
Most often, drivers exercise their powers to submit petitions. The request must be submitted in writing. Petitions of persons participating in the proceedings on an administrative offense are attached to the case and are subject to immediate consideration by the employee within his competence. The decision to refuse the application is made by the traffic police officer in the form of a ruling. When filing a petition for consideration of the case at his place of residence, this petition may be reflected in the protocol on the administrative offense.
Receiving explanations
When drawing up a protocol on an administrative violation, before receiving explanations, the person against whom a case of an administrative offense has been initiated, as well as other participants in the proceedings in the case, must be explained the rights and obligations provided for in Article 51 of the Constitution of the Russian Federation, which is recorded in the protocol.
For reference:Article 51 of the Constitution of the Russian Federation. No one is obliged to testify against himself, his spouse and close relatives, whose circle is determined by federal law. Relatives include: spouse, parents, children, adoptive parents, adopted children, siblings, grandparents, grandchildren.
Familiarization with the accident protocol
The person in respect of whom a protocol on an administrative offense has been drawn up must be given the opportunity to familiarize himself with it. A person has the right to provide explanations and comments on the contents of the protocol, which are reflected in it or attached to it. The driver must sign the protocol for familiarization.
The protocol on an administrative offense is signed by the employee who compiled it and the person in respect of whom it was drawn up.
Witnesses when drawing up a protocol on administrative offenses of the traffic police
If the specified person refuses to sign the protocol, a corresponding entry is made in it.
The person in respect of whom the accident report was drawn up, as well as the victim, is given a copy of this protocol against signature.
Map of the location of the accident
If it is necessary to provide additional information that may be important for the correct resolution of the case of an administrative offense, the employee who identified the administrative offense draws up a detailed report and (or) a diagram of the place where the administrative offense was committed, which are attached to the case. The diagram of the place where the administrative offense was committed is signed by the employee who compiled it and the person against whom the administrative offense case was initiated. If the specified person refuses to sign the diagram, a corresponding entry is made in it.
Appealing a protocol on an administrative offense
The current legislation does not provide for the procedure for appealing the protocol in an accident case. The Code of Administrative Offenses of the Russian Federation establishes the possibility of appealing only decisions in cases of administrative offenses.
At the same time, as a general rule, it is not the document itself (the protocol on an accident) that can be appealed, but the actions of the traffic police officer who compiled it. In this case, the complaint must indicate specific actions with which the applicant does not agree. You can appeal the actions of a traffic police officer to a higher official, or to the court, as well as to the district prosecutor's office.
Prepared by "Personal Prava.ru"
1. In the cases provided for by Articles 115, 177, 178, 181 184, part five of Article 185, part seven of Article 186, Articles 193 and 194 of this Code, investigative actions are carried out with the participation of at least two witnesses, who are called to certify the fact of the investigation action, its progress and results, except for the cases provided for in part three of this article.
(as amended by Federal Law dated July 4, 2003 N 92-FZ)
(see text in the previous edition)
2. In other cases, investigative actions are carried out without the participation of witnesses, unless the investigator, at the request of participants in criminal proceedings or on his own initiative, makes a different decision.
3. In hard-to-reach areas, in the absence of proper means of communication, as well as in cases where the implementation of an investigative action is associated with a danger to the life and health of people, the investigative actions provided for in part one of this article can be carried out without the participation of witnesses, as indicated in the investigative protocol actions, a corresponding record is made. If an investigative action is carried out without the participation of witnesses, technical means of recording its progress and results are used. If it is impossible to use technical means during an investigative action, the investigator makes a corresponding entry in the protocol.
4. Before starting an investigative action, the investigator, in accordance with part five of Article 164 of this Code, explains to the witnesses the purpose of the investigative action, their rights and responsibilities provided for in Article 60 of this Code.
In the mornings, I am often stopped by State Traffic Inspectorate officers and asked to be an attesting witness when drawing up a report on the arrest of a drunk driver. I am sure that every driver has acted as a witness at least once in his life. But they have long been talking about abolishing the institution of witnesses, as new means of video recording have appeared that are accepted by courts as evidence. Have the long-awaited changes appeared in the Code of Administrative Offenses of the Russian Federation?
Vladimir SOROKIN.
Since November 15, 2014, changes have been made to the Code of the Russian Federation on Administrative Offenses, the press service of the Russian Ministry of Internal Affairs reported.
in the Magadan region.
On October 15, 2014, the Federal Law of October 14, 2014 No. 307-FZ “On Amendments to the Code of the Russian Federation on Administrative Offenses and Certain Legislative Acts of the Russian Federation and on the recognition as invalid of certain provisions of legislative acts of the Russian Federation in connection with the clarification of the powers of state bodies and municipal bodies in terms of the exercise of state control (supervision) and municipal control,” which came into force on November 15, 2014.
From this date, the federal law introduces a number of significant changes to the Code of the Russian Federation on Administrative Offenses (CAO RF).
One of the main changes to the Code of Administrative Offenses of the Russian Federation, provided for by this federal law, concerns the exclusion of the obligation of the so-called institution of witnesses. Thus, the new edition of Article 25.7 of the Code of Administrative Offenses of the Russian Federation provides that in the case of using video recording to record the performance of procedural actions (with the exception of a personal search), these procedural actions will be carried out in the absence of witnesses, which will be recorded in the appropriate protocol or the certificate of examination for alcohol intoxication . In this case, a video recording of the performance of procedural actions will be attached to the protocol or act.
Another significant change is the exclusion from Article 27.13 of the Code of Administrative Offenses of the Russian Federation of such a measure to ensure proceedings in a case of an administrative offense as prohibiting the operation of a vehicle. This measure has so far been implemented by removing state registration plates from the vehicle. However, since currently the owner of a vehicle has the opportunity to produce duplicates of state registration plates at any manufacturer of registration plates, the further use of this measure to ensure proceedings in an administrative offense case is considered inappropriate.
Article 11.23 of the Code of Administrative Offenses of the Russian Federation has been clarified that this norm applies both for driving a vehicle for transporting goods and (or) passengers without a tachograph or with a non-working tachograph, and for releasing such a vehicle onto the line. It should be noted that for officials for this offense the Code of Administrative Offenses of the Russian Federation provides for the imposition of an administrative fine in the amount of 5,000 to 10,000 rubles.
Due to the fact that to drive mopeds and scooters it is currently required to obtain a driver’s license of category “M” (or have a driver’s license with any other open category), a change is being made to the note to Article 12.1 of the Code of Administrative Offenses of the Russian Federation, extending all elements of administrative offenses provided for by Chapter 12 of the Code of Administrative Offenses of the Russian Federation.
An amendment has been made to Part 2 of Article 12.2 of the Code of Administrative Offenses of the Russian Federation, clarifying that it is punishable to drive a vehicle not only with state registration plates equipped with the use of materials that prevent or complicate their identification, but also with modified state registration plates, as well as with state registration plates , equipped with the use of devices or materials that allow them to be modified or hidden. Liability for this administrative offense remains the same - an administrative fine in the amount of 5,000 rubles or deprivation of the right to drive vehicles for a period of 1 to 3 months.
The Federal Law introduced the responsibility of technical inspection operators for issuing a diagnostic card confirming the admission to participation in road traffic of a vehicle for which a technical inspection has not been carried out or during the technical inspection of which it was revealed that the vehicle does not comply with mandatory vehicle safety requirements, as well as for the transfer into a unified automated information system for technical inspection of information about the technical inspection of a vehicle for which no technical inspection was carried out. For these acts, legal entities will be subject to an administrative fine in the amount of 100,000 to 300,000 rubles. The court will consider cases of this category.
The law establishes that for failure to pay administrative fines within the period established by the Code of Administrative Offenses of the Russian Federation, military personnel, citizens called up for military training, and employees of internal affairs bodies with special ranks, bodies and institutions of the penal system, the State Fire Service, drug control agencies and psychotropic substances and customs authorities will be held liable on a general basis (until now, these persons were subject to disciplinary liability for failure to pay administrative fines).
Another change regarding liability for failure to pay an administrative fine within the prescribed period was made to Article 20.25 of the Code of Administrative Offenses of the Russian Federation. Thus, a person who fails to pay a fine on time for an offense that was recorded using automatic video recording devices will no longer be subject to punishment in the form of administrative arrest. Such a person will be punished with double the amount of the unpaid fine or with compulsory labor for up to 50 hours.
The Federal Law specifies the procedure for the actions of police officers in the event of an administrative offense related to the driving of a vehicle by an individual who has not reached the age provided for by the Code of Administrative Offenses of the Russian Federation for bringing to administrative responsibility - in this case, the proceedings on the administrative offense will be terminated only after the application of measures security necessary to suppress the illegal action, that is, after the specified person is removed from driving a vehicle and the vehicle is detained.
It is established that copies of the resolution in a case of an administrative offense and materials obtained using automatic video recording means can be sent to the person against whom the case of an administrative offense has been initiated, not only by mail, by registered mail in the form of a copy of the resolution on paper. , but also in the form of an electronic document signed with an enhanced qualified electronic signature of an authorized official, using the Unified Portal of State Services.
In addition, it is established that after the expiration of the period of deprivation of the right to drive vehicles, a driver’s license or a tractor operator’s (tractor operator) license is returned not only after checking knowledge of the Traffic Rules, but also after paying in the prescribed manner all administrative fines for administrative offenses in the field of traffic movements.
The federal law also introduced a number of other changes to the Code of Administrative Offenses of the Russian Federation, both editorial in nature and clarifying its individual provisions.
Please note once again that Federal Law No. 307-FZ of October 14, 2014 came into force on November 15, 2014.
Decision on an administrative case
Case No. 3-266/15
RESOLUTION
Magistrate of judicial district No. 15 of Nalchik Toguzaev M.M.
having considered the administrative case against M.A. Makhov, born, citizen of the native not working, living in
Installation:
From the administrative case received by the court, it follows that M.A. Makhov, following the state registration number of the region in a vehicle, was detained in the village. , 02/27/2015 at 00:05 am. for driving a vehicle while intoxicated, thereby committing a violation of paragraph. 2.7 of the Traffic Regulations, the responsibility for which is provided for in Part 1 of Article 12.8 of the Code of Administrative Offenses of the Russian Federation - driving a vehicle by a driver who is intoxicated.
M.A. Makhov, at the court hearing, explained that on February 27, 2015, he was stopped by police officers to check his documents, during which he was asked to undergo an examination for intoxication, to which M.A. Makhov, agreed, was sure that he was absolutely sober, since he did not drink alcohol that day. He was asked to blow into the breathalyzer-pro-100 device to establish his state of intoxication, without explaining to him the right to an examination, without changing the mouthpiece, without inviting witnesses. Attesting witnesses were not present during the examination for intoxication; they did not see the examination itself and did not see the entire procedure.
M.A. Makhov was also not informed about his rights, simply indicating the place for the painting in the protocol, without explaining them. The murals were placed by M.A. Makhov, in the places where the police officers indicated, in order to avoid an escalation of the conflict, and the very possible onset of much more serious consequences. M.A. Makhov explained that after consuming the energy drink, it might have seemed to the police that he was drunk. Makhova M.A., they did not familiarize themselves with the integrity of the breathalyzer brand, did not change the tip on the breathalyzer, i.e. mouthpiece.
Based on the above, he asked to terminate the administrative case against him due to the fact that during the preparation of the administrative material, the police officers grossly violated the established standards for registering an administrative offense. In particular, the examination for the state of alcoholic intoxication is carried out in the presence of two witnesses, who, according to M.A. Makhov, were not present during the examination for the state of intoxication.
Witness A.F. Tishkov gave an explanation that he was brought in as a witness during the examination of M.A. Makhov’s state of intoxication. He further explained that his rights were not explained to him, and the rights of M.A. Makhov were also not explained. He also did not see the examination procedure itself and he also did not see the second witness. He saw M.A. Makhov himself in the darkness from afar. He signed the protocol while sitting in his car, which was handed to him by a police officer through the driver’s side window. He did not see the second witness.
It was not possible to attract the attesting witness R.B. Kardanov, indicated in the protocol, to testify; a notification was sent to him at the address indicated in the protocol. According to the report of the assistant justice of the peace at this address, it was not possible to notify the witness, according to information from neighbors R.B. Kardanov. left for the city, they don’t know when he will return.
By virtue of the current Law, the obligation to properly notify the participants in the process, including the person against whom proceedings are being conducted for an administrative offense, is assigned to the court and is a guarantee of their right to a fair trial.
Only proper notification of the participants in the process, including the person against whom proceedings for an administrative offense are being conducted, gives the court the right to consider the case of an administrative offense in their absence.
Thus, the court took all measures to ensure the attendance of witnesses at the court hearing and to consider the administrative material on its merits and in full.
Having listened to M.A. Makhov, a witness, and having studied the presented materials of the administrative case, the court comes to the conclusion that M.A. Makhov’s guilt has not been proven in committing an administrative offense under Part 1 of Art. 12.8 Code of Administrative Offenses of the Russian Federation, on the following grounds:
The employees violated the requirements of clause 36 of Order No. 185 of the Ministry of Internal Affairs of Russia dated March 2, 2009 “On approval of the administrative regulations of the Ministry of Internal Affairs of the Russian Federation for the execution of the state function of control and supervision of compliance by road users with requirements in the field of ensuring road safety.”
Referring to paragraph 18 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 24, 2005 No. 5, part 3 of Article 26.2 of the Code of Administrative Offenses of the Russian Federation, the provisions of Art. 1.5 (clause 4) Code of Administrative Offenses of the Russian Federation, clause 2 of Art. 24.5 of the Code of Administrative Offenses of the Russian Federation, obtained during pre-trial proceedings in strict accordance with the requirements of the Law, there is no objective and reliable evidence of the fact of his driving while intoxicated.
Taking into account the above, the traffic police officers violated the procedure for examining the state of intoxication and the legal rights of M.A. Makhov.
In the administrative violation protocol 07AA No. 694599 dated March 28, 2015, there is no record of the use of special equipment, its number, and there is no certificate of verification of the technical equipment “ALKTOTEKTOR-PRO-100”.
Thus, the protocol on an administrative offense was drawn up without complying with the requirements of Article 28.2 of the Code of Administrative Offenses of the Russian Federation.
According to Part 2 of Art. 28.2 of the Code of Administrative Offenses of the Russian Federation, a protocol on an administrative offense is one of the types of evidence, since in the protocols according to Art. Art. 28.1, 28.3, 28.5 contain information that allows you to correctly resolve a case of an administrative offense.
If one or both witnesses were absent when drawing up the protocol, then when considering the case, the protocol is subject to assessment according to the rules of Art. 26.11 of the Code of Administrative Offenses of the Russian Federation, taking into account the requirements of Part 3 of Article 26.2 of the Code of Administrative Offenses of the Russian Federation, i.e. It is not allowed to use evidence in a case of an administrative offense, including the results of an inspection carried out during the implementation of state control (supervision) and municipal control, if the specified evidence was obtained in violation of the law.
In assessing the administrative case, the court finds that the police officers committed numerous and significant violations of the procedure for drawing up an administrative offense and the procedure for examining M.A. Makhova for the state of intoxication.
The court also evaluates the testimony of M.A. Makhov. and a witness, on the basis of which it can be assumed that the police officers violated the rights of M.A. Makhov. based on the Constitution of the Russian Federation, Decree of the Government of the Russian Federation of June 26, 2008 No. 475 “On approval of the rules for examining a person who drives a vehicle for alcohol intoxication and registration of its results”, Order of the Ministry of Internal Affairs of the Russian Federation No. 185 of March 2, 2009 “Administrative regulations of the Ministry of Internal Affairs of the Russian Federation for the execution of the state function of control and supervision of compliance by road users with requirements in the field of ensuring road safety."
According to Article 26.11 of the Code of Administrative Offenses of the Russian Federation, the judge conducting proceedings in a case of an administrative offense evaluates the evidence according to his inner conviction, based on a comprehensive, complete and objective study of all the circumstances of the case in their totality. No evidence can have predetermined validity.
According to Article 1.6. of the Code of Administrative Offenses, a person brought to administrative responsibility cannot be subjected to administrative punishment and measures to ensure proceedings in a case of an administrative offense other than on the grounds and in the manner established by law.
Based on Art. 1.5 of the Code of Administrative Offenses of the Russian Federation, a person is subject to administrative liability only for those administrative offenses in respect of which his guilt has been established. A person brought to administrative responsibility is not required to prove his innocence, except for the cases provided for in the notes to this article. Irremovable doubts about the guilt of a person brought to administrative responsibility are interpreted in favor of this person.
Based on Art. In the Russian Federation, recognition, observance and protection of human and civil rights and freedoms is the responsibility of the state.
The circumstances established by the court are valid and correspond to the written explanation of the witness given during the consideration of the administrative case.
When assessing the evidence in this case, the court is guided by the rules of Article 26.11 of the Code of Administrative Offenses of the Russian Federation and paragraph 7 of Resolution of the Plenum of the Armed Forces of the Russian Federation No. 5 of March 24, 2005.
Based on the provisions of Part 1 of Article 1.6 of the Code of Administrative Offenses of the Russian Federation, ensuring legality when applying administrative coercive measures presupposes not only the existence of legal grounds for applying an administrative penalty, but also compliance with the procedure established by law for bringing a person to administrative responsibility.
Testimony of M.A. Makhov are not refuted by the case materials, but on the contrary are confirmed by them and the explanation of the attesting witness has no reason for the court not to trust the testimony of M.A. Makhov.
Considering that Art. 12.8 Part 1 of the Code of Administrative Offenses of the Russian Federation provides for administrative liability for driving a vehicle by a driver who is in a state of intoxication, and also taking into account the requirements set out in the Rules for examining a person who drives a vehicle for alcohol intoxication and recording its results, sending the said person for medical examination for the state of intoxication, a medical examination of this person for the state of intoxication and registration of its results, approved by Decree of the Government of the Russian Federation No. 475 of June 26, 2008 (as amended on November 18, 2013), and also taking into account that in accordance with the principle of the presumption of innocence provided for Art. 1.5 of the Code of Administrative Offenses of the Russian Federation, irremovable doubts about the guilt of a person brought to administrative responsibility are interpreted in favor of this person, and also that the shortcomings made in drawing up the protocol on an administrative offense in relation to M.A. Makhov grossly violate the provisions provided for in Article 25.1 of the Code of Administrative Offenses RF rights of a person brought to administrative responsibility, the court has doubts regarding the circumstances, evidence, the reliability and admissibility of which raise doubts about the commission of an administrative offense by M.A. Makhova, provided for in Art. 12.8. Part 1 of the Code of Administrative Offenses of the Russian Federation and considers it necessary to terminate the administrative case against him due to the absence of corpus delicti in his actions.
Based on the above, in accordance with Art. 1.5, paragraph 2 of Art. 24.5, guided by paragraphs. 2 clause 1 art. 29.9 Code of Administrative Offenses of the Russian Federation,
DECIDED:
Terminate administrative proceedings against M.A. Makhov. due to the absence in his actions of an administrative offense under Part 1 of Art. 12.8 Code of Administrative Offenses of the Russian Federation.
The decision can be appealed within 10 days to the Nalchik City Court, from the date of delivery or receipt of a copy of the decision.
Magistrate M.M. Toguzaev
By the decision of the magistrate, Hovhannisyan was found guilty of committing an administrative offense under Part 1 of Article 12.8 of the Code of Administrative Offenses - the Code of Administrative Offenses of the Russian Federation and was punished by deprivation of the right to drive vehicles for a period of one year and six months.
I, as Hovhannisyan’s defense attorney in the second instance, did not agree with the resolution and asked for it to be canceled on the grounds that the resolution was made in violation of the norms of substantive and procedural law.
The court, having examined the case materials and listened to our arguments, found the complaint to be satisfied on the following grounds:
Oganesyan F. did not admit guilt in committing an administrative offense.
The protocol on sending F. Oganesyan for a medical examination for alcohol intoxication was drawn up in violation of the requirements of administrative legislation, as a result - the procedure for undergoing a medical examination was violated. Namely, the procedure for sending a driver for a medical examination is provided for by Decree of the Government of the Russian Federation of June 26, 2008 No. 475 and the Code of the Russian Federation on Administrative Offenses.
Based on Art. 25.7 of the Code of Administrative Offenses of the Russian Federation, in cases provided for by the Code of Administrative Offenses of the Russian Federation, the official in charge of the case of an administrative offense may bring in as a witness any adult person who is not interested in the outcome of the case. The number of witnesses must be at least two.
The presence of witnesses is mandatory in cases provided for by Chapter 27 of the Code of Administrative Offenses of the Russian Federation. The witness certifies in the protocol with his signature the fact of the commission of procedural actions in his presence, their content and result.
Based on Art. 27.12 of the Code of Administrative Offenses of the Russian Federation, a protocol on referral for a medical examination and a protocol on removal from control of a vehicle are drawn up with mandatory participation of two witnesses
.
From the materials of the administrative case it follows that the protocol on sending F. Oganesyan for a medical examination and the protocol on his removal from management of the vehicle were drawn up without the participation of witnesses.
Under such circumstances, the protocol on sending F. Oganesyan for a medical examination and the protocol on his removal from management of the vehicle cannot be admissible evidence in the case, since they were obtained in violation of the law.
The court's reference in the decision to impose an administrative penalty is that Oganesyan F.'s guilt is confirmed by a body of evidence: a protocol on an administrative offense, which is not contested by Oganesyan F., an intoxication examination certificate and a medical examination certificate for the intoxication of the person who is driving the vehicle. c, is only a list of compiled documents that give an understanding of their quantitative criteria. However, replacing a qualitative indicator with a quantitative indicator of evidence in a case is unacceptable.
Moreover, administrative legislation does not provide for a mandatory procedure for appealing a protocol on an administrative offense, which means that not challenging the protocol in no way confirms the state of alcohol intoxication F. Oganesyan.
The certificate of examination for the state of alcoholic intoxication also does not prove the presence of alcoholic intoxication Oganesyan F., since the examination was not carried out on the spot, which is confirmed by the certificate.
The act of medical examination for the state of intoxication of the person who is driving cannot be admissible evidence in the case, since it was obtained in violation of the requirements of the law due to a violation of the procedure for sending for a medical examination