Official website of the Supreme Court of the Russian Federation
A driver cannot be punished for an administrative offense if the protocol does not indicate which road sign he violated, the Supreme Court of the Russian Federation indicated. He also noted that if the data in this document differs from the circumstances established during the trials, all doubts are interpreted in favor of the motorist.
An improper description of the event of an administrative offense may entail a violation of the right to defend the person held accountable and deprive the driver of objectively objecting and presenting evidence on the merits of the charged offense, the highest authority explains its position.
The crux of the matter
A resident of Bashkiria, found guilty of violating traffic rules that led to minor harm to the health of the victim (Part 1 of Article 12.24 of the Code of Administrative Offenses of the Russian Federation), filed a complaint with the Supreme Court of the Russian Federation.
According to the case file, in the city of Sterlitamak there was a collision between two cars, as a result of which the passenger of one of them received minor injuries. The author of the complaint to the RF Armed Forces was found guilty of the accident. The traffic police inspector found that the woman, in violation of the requirements of paragraph 8.4 of the Traffic Rules, did not give way to the left lane when changing lanes and collided with another car.
The judge of the Sterlitamak City Court came to the conclusion that the driver lost control of the vehicle and hit a curb, and the court also pointed out that the car owner violated paragraph 9.4 of the traffic rules, which led to injury to the passenger.
Subsequent courts took into account the expert’s opinion and established the fact that the driver violated the requirements of road sign 1.20.1 “Narrowing of the road” and paragraph 10.1 of the traffic rules, as well as a cause-and-effect relationship between this violation and causing minor harm to health to the passenger.
First, the car owner was fined 2.5 thousand rubles, and during the second trial, she was deprived of the right to drive vehicles for a period of 1 year. Subsequently, the Supreme Court of Bashkortostan overturned this decision, returning to the punishment in the form of a fine. However, the driver was not satisfied with the mitigation of the punishment and complained to a higher authority.
The Supreme Court of the Russian Federation considered that the judicial acts taken in the case cannot be recognized as legal.
Position of the Armed Forces
Article 24.1 of the Code of Administrative Offenses establishes that the objectives of the proceedings are a comprehensive, complete, objective and timely clarification of the circumstances of each case, its resolution in accordance with the law, ensuring the execution of the issued decision, as well as identifying the causes and conditions that contributed to the commission of administrative offenses, reminds the Supreme Court RF. To substantiate the conclusion that the driver is guilty, the appealed acts indicate that the fact of committing an offense is confirmed, among other things, by the protocol, he points out. Indeed, Article 26.1 of the Code of Administrative Offenses classifies the protocol on an administrative offense as evidence in administrative cases.
At the same time, Part 2 of Article 28.2 of the Code of Administrative Offenses regulates the information that must be indicated in this document, including the event of an administrative offense, the RF Armed Forces recall. The law also obliges to find out and prove all circumstances related to the event of an administrative offense, the resolution says.
Meanwhile, the protocol on the controversial case contains a description of the event of the administrative offense that does not coincide with that established by the courts, explains the highest authority.
In the protocol, the driver is charged with violating paragraph 8.4 of the traffic rules, but this document does not contain information about violation of the requirements of the road sign 1.20.1 “Narrowing of the road” and paragraphs 9.4, 10.1 of the traffic rules, which, in the opinion of the courts, resulted in minor harm to health. .
A protocol on an administrative offense is a procedural document that records the unlawful act of a person against whom proceedings have been initiated, and formulates the charge against this person, notes the RF Armed Forces.
By virtue of the provisions of Article 28.2 of the Code of Administrative Offenses, those who are brought to administrative responsibility must be given the opportunity to familiarize themselves with the protocol, provide explanations and comments on the content of the protocol, the essence of the charged administrative offense, he reminds.
“Based on the meaning and content of this norm, a person against whom proceedings have been initiated for an administrative offense must be given the opportunity to implement guarantees of protection, give explanations on the merits of the charged administrative offense, qualifiedly object to its essence and circumstances, including with a presentation evidence to support your position.
Failure to comply with the requirements of Article 28.2 of the Code of Administrative Offenses for the content of the protocol on an administrative offense, an improper description of the event of an administrative offense may entail a violation of the right to defense of the person against whom proceedings have been initiated, deprive him of the opportunity to objectively object and present relevant evidence on the merits of the offense charged,” - the court emphasizes.
Meanwhile, the courts ignored this violation, just as they did not pay attention to the fact that in the process they established circumstances that differed from those described in the protocol.
In such a situation, the courts should have returned the protocol to the traffic police to eliminate the shortcomings, the decision stated.
Since the provisions of parts 1 and 4 of Article 1.5 of the Code of Administrative Offenses guarantee that administrative liability can be brought only for those offenses for which the offender’s guilt has been established, and all irremovable doubts are interpreted in favor of the accused, the driver cannot be punished if there is a discrepancy between the data in the protocol and those established in the courts
In addition, according to paragraph 4 of part 2 of Article 30.17 of the Code of Administrative Offenses, based on the results of consideration of a complaint against a decision that has entered into legal force, a decision is made to cancel it and to terminate the proceedings in the case if at least one of the circumstances provided for in Articles 2.9, 24.5 of the Code of Administrative Offenses of the Russian Federation is present, as well as if the circumstances on the basis of which the decision was made are not proven, the RF Supreme Court recalls.
In this regard, the highest court canceled all decisions made in the case, and terminated the proceedings in the case due to the lack of proof of the circumstances on the basis of which the decisions were made.
Expert opinion
Many of the points set out in the decision deserve attention and can be used by drivers who find themselves in a similar situation, and should be taken into account by lower courts when considering such disputes, notes Alexey Rumyantsev, a member of the Russian Lawyers Association, deputy chairman of the OSA Motorists Protection Society.
“The Supreme Court has repeatedly indicated the inadmissibility of such violations when preparing administrative material. Traffic police officers often ignore this requirement, not bothering to describe the event of the alleged violation in the administrative protocol, which, in turn, sometimes makes it difficult for the court to correctly qualify the act committed by the driver,” the expert emphasizes.
Considering that irremovable doubts about the guilt of a person brought to administrative responsibility must be interpreted in favor of this person, the proceedings in such cases are justifiably terminated, Rumyantsev points out.
However, according to him, based on practice, local courts often ignore the legal position of their senior colleagues, making decisions that ultimately lead to such results.
“As for the driver herself, in this case, in my opinion, a number of procedural violations committed by the court of first instance when considering the case allowed her to evade responsibility. If we do not touch upon the violation of clauses 9.4, 10.1 of the Traffic Regulations of the Russian Federation, but taking into account the proven fact of an alleged violation of clause 8.4 of the Traffic Regulations of the Russian Federation, consisting of a causal connection with the consequences that occurred (causing harm to the health of a passenger), moreover, which was not disputed by the driver, then, taking into account all the circumstances, the court correctly qualified the driver’s actions under Article 12.24 of the Code of Administrative Offenses of the Russian Federation and imposed a fine. The fact that the driver avoided a fine will not relieve him of financial responsibility to the victim for causing moral harm and harm to health,” believes a member of the Law Firm.
Alice Fox
Any doubt in favor of the accused
The trial attracted close attention from local and federal media not because of the large amount of damage caused to the enterprise, but rather because of the story itself: according to the defense, the victim herself was in the dock.
“Several years ago, the Saberzyanov couple decided to open a complex for the provision of paid medical services in Kazan on the territory of one of the local hospitals. We built a building and purchased an expert-class tomograph, which at that time did not exist either in the republic itself or in neighboring regions. The amount of investment amounted to several tens of millions of rubles,” says criminal lawyer Sergei Gorshkov.
The construction of a modular complex to house the tomograph was entrusted to a contractor who worked as an individual, without concluding a contract and for cash. The current director believed that construction this way would cost much less, although the opposite turned out to be the case. Ultimately, the services cost twice as much as the market value, which is confirmed by the appraiser’s report.
“The general meeting of the founders of High Technologies of Medicine LLC decided to remove the director from the position for numerous financial violations. His place was taken by Asiya Sabirzyanova, who had just begun to get into the details of the activities of the former leadership and learned about the problems hanging over her brainchild. The contractor, knowing that payment for the work performed had been received in full, and that the company did not have documents confirming receipt of the money, developed his own plan, which consisted of receiving the funds again,” says criminal lawyer Sergei Gorshkov.
The contractor filed a claim for unjust enrichment in court, claiming that he built the facility, but did not receive payment for the work performed. Themis took his side. Soon, based on statements from one of the co-founders and the contractor, several criminal cases were initiated against Asiya Sabirzyanova. According to the investigation, she, having taken the post of director, stole money from the enterprise. Law enforcement officers chose not to think about the fact that it all belonged to the woman’s family.
“This can be called a classic raider takeover of a business, when one of the parties, taking advantage of connections in law enforcement agencies, tries to initiate a criminal case against former partners. The goal is simple - to seize control of an enterprise in which the accused have invested much more than the applicants themselves. The defendant believes that she became a victim of her gullibility, and the victims were able to take advantage of this. It's a custom case. This is confirmed by numerous violations committed by law enforcement agencies during its investigation. We are confident that the court must understand all the circumstances and issue an acquittal,” says criminal lawyer Sergei Gorshkov.
Presumption of innocence
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Article 49 of the Constitution of the Russian Federation proclaims:
"1. Everyone accused of committing a crime is considered innocent until his guilt is proven in the manner prescribed by federal law and established by a court verdict that has entered into legal force.
2. The accused is not required to prove his innocence.
3. Irremovable doubts about a person’s guilt are interpreted in favor of the accused.”
This article enshrines one of the most important principles of a democratic constitutional state, which is reflected in a number of international normative legal acts (Article 11 of the Universal Declaration of Human Rights, Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 14 of the International Covenant on Civil and political rights) - the presumption of innocence.
The principle of the presumption of innocence determines the nature of the relationship between the state, its bodies, officials and citizens, on the one hand, and the person against whom suspicion or accusation of committing a crime has been brought, on the other. Although this principle is formulated as a criminal procedural principle, its effect goes beyond the scope of the criminal process itself and requires everyone - not only from the bodies carrying out criminal proceedings (investigator, prosecutor, court), but also from other persons - to treat the person whose guilt the commission of a crime was not proven in a final verdict, as to an innocent person.
This constitutional norm found its implementation in Part 2 of Art. 1 of the Criminal Code of the Russian Federation, according to which the Criminal Code of the Russian Federation is based on the Constitution of the Russian Federation and generally recognized principles and norms of international law, as well as in Art. 14 of the Criminal Procedure Code of the Russian Federation, which reproduces this constitutional norm almost verbatim.
A number of legal consequences follow from the principle of the presumption of innocence, which are enshrined, among other things, in other parts of Article 49 of the Constitution of the Russian Federation.
One of these consequences is the release of the accused from the obligation to prove his innocence. Guilt must be proven by the bodies of inquiry, preliminary investigation and court. Failure to comply with this requirement of the law leads to the termination of the criminal case, the termination of criminal prosecution against the suspect (accused), and the acquittal of the defendant. Even the accused’s admission of guilt (which was previously considered the “queen of evidence”) is not enough to reach a guilty verdict; it can only be taken into account if it is confirmed by a body of evidence.
The presumption of innocence also implies the rule that irreducible doubts about a person’s guilt are interpreted in favor of the accused. Doubts are considered irremovable in cases where reliable evidence obtained by legal methods does not allow one to come to an unambiguous conclusion about the guilt of a person, and legal methods of collecting evidence have been exhausted. The court's guilty verdict should not be based on assumptions, but on precisely established facts and proven circumstances.
Article 50 of the Constitution of the Russian Federation proclaims:
"1. No one can be convicted twice for the same crime.
2. In the administration of justice, the use of evidence obtained in violation of federal law is not permitted.
3. Every person convicted of a crime has the right to have his sentence reviewed by a higher court in the manner prescribed by federal law, as well as the right to ask for pardon or commutation of punishment.”
The provision formulated in the first part of this constitutional norm is reflected in the principle of justice enshrined in criminal legislation, one of the elements of which is the rule by virtue of which no one can be held criminally liable twice for the same crime (Part 2 of Article 6 of the Criminal Code). Code of the Russian Federation). The constitutional consolidation of this rule indicates increased protection of human rights when bringing him to criminal responsibility and conviction.
The main meaning of this constitutional provision is fixed in the norms of criminal procedural law, based on which criminal prosecution against a suspect or accused is subject to termination if there is a verdict against the suspect or accused that has entered into legal force on the same charge or a court ruling or a judge’s decision to terminate criminal case on the same charge, as well as the presence of an unrescinded resolution of the inquiry body, investigator or prosecutor to terminate the criminal case on the same charge or to refuse to initiate a criminal case (clauses 4, 5, part 1, article 27 of the Criminal Procedure Code Code of the Russian Federation).
From the constitutional provision in question it also follows that it is inadmissible to conduct parallel proceedings accusing the same person of the same crime, regardless of the presence or absence of a final decision in any of these cases.
Fixed part 2 tbsp. 50 of the Constitution of the Russian Federation, the principle of the inadmissibility of using evidence obtained in violation of the requirements of the federal law - the Criminal Procedure Code of the Russian Federation, means that such “evidence” is recognized as having no legal force and cannot be used as the basis for an accusation, or used to prove any of the circumstances , subject to proof in accordance with Art. 73 of the Criminal Procedure Code of the Russian Federation.
This provision is one of the most important aspects of the presumption of innocence: despite the fact that this evidence may indicate the actual commission of a crime, it is impossible to formulate it, for example, as the basis for a conviction because the illegality of its receipt casts doubt on its reliability.
Illegal, for example, may include evidence obtained in violation of the right to defense: untimely admission of a lawyer to participate in the process, absence of an interpreter, etc.
In Part 3 of Art. 50 of the Constitution of the Russian Federation speaks of the right to review a sentence, suggesting that each sentence can be verified by a higher court on the basis of a complaint from the convicted person (acquitted), his defense attorney (legal representative), the victim, or the presentation of the prosecutor by the competent authority (appellate or cassation), although this is not means that every verified sentence must be canceled or changed.
The procedure for reviewing a sentence by a higher court is established by Chapters 45.1, 47.1, 48.1 and 49 of the Criminal Procedure Code of the Russian Federation.
The right to review a sentence is an additional guarantee against the illegal or unfounded prosecution of a person, as it provides additional verification of the legality and validity of the conviction.
In addition to the right to review a sentence, the norms of the Constitution of the Russian Federation provide for the right of a convicted person to ask for pardon or commutation of punishment. A pardon is a release from punishment or its replacement with another, milder punishment. According to paragraph “c” of Article 89 of the Constitution of the Russian Federation, pardon is carried out by the President of the Russian Federation, who has the right to pardon any convicted person who has committed a crime, regardless of its severity. In the act of pardon, the President of the Russian Federation has the right to release a person convicted of a crime from further serving a sentence, or reduce the imposed punishment, or replace it with a more lenient type of punishment, or remove the criminal record from a person who has served the sentence.
The issuance of a decree on pardon does not mean making changes to the court sentence or its cancellation - this act only changes the nature of the execution of the sentence. Therefore, the fact of pardoning a convicted person does not deprive him of the right to seek annulment or change of sentence in the manner established by the criminal procedural law.
The right of a convicted person to ask for a mitigation of punishment can be exercised both by reviewing the sentence or pardon, and by making decisions by the court in the execution of the sentence.
Article 51 of the Constitution of the Russian Federation proclaims:
"1. No one is obliged to testify against himself, his spouse and close relatives, whose circle is determined by federal law.
2. Federal law may establish other cases of exemption from the obligation to give testimony.”
The right of any person, regulated by this article, not to testify in court or another body against himself, his spouse and close relatives is one of the inalienable human rights. This right serves as a guarantee that ensures the dignity of a person, the inviolability of his private life, personal and family secrets, the protection of his honor and good name, the possibility of him defending his rights and freedoms, and the consideration of cases in courts on the basis of the presumption of innocence and adversarial law.
Although the Constitution does not limit the application of this constitutional provision to any sphere of legal relations, it is of vital importance in the sphere of criminal law and procedure.
A person, no matter what legal position he is in (witness, victim, suspect, accused, etc.), has the right not to testify against himself and his loved ones, which current legislation includes his spouse, parents, children , adoptive parents, adopted children, siblings, grandparents and grandchildren (Article 5 of the Criminal Procedure Code of the Russian Federation).
Several conclusions follow from the above:
First, any person has the right to decide at his own discretion whether to testify in relation to himself, his spouse and close relatives, or to refuse to testify.
Secondly, courts and other law enforcement agencies cannot oblige the interrogated person to testify in one form or another against himself, his spouse and close relatives.
Thirdly, evidence that was obtained from the suspect, accused, or their close relatives forcibly or due to failure to explain the right to refuse to testify cannot be used as the basis for conclusions and decisions in a criminal case.
Fourthly, refusal to testify, and in relation to the accused (suspect), also giving knowingly false testimony cannot entail criminal or other liability for them.
Exemption from the obligation to testify is also possible in other cases established by federal law. This refers to cases where certain persons may have the right not to testify based on other circumstances, which may include, for example: the person’s holding a position, the person’s performance of certain types of activities related to obtaining information that constitutes a secret (for example , lawyer, doctor, priest), etc.
According to the provisions of the criminal procedural legislation, the right to be exempt from giving testimony belongs to the lawyer, the defender of the suspect (accused), who cannot be questioned about the circumstances that became known to them in connection with the application to them for legal assistance or in connection with its provision; judge, juror who are not required to testify about the circumstances of the criminal case that became known to them in connection with their participation in the proceedings in this criminal case; a clergyman who cannot be held accountable for refusing to testify about circumstances that became known to him from confession; member of the Federation Council, deputy of the State Duma, who have the right not to testify about circumstances that have become known to them in connection with the exercise of their powers.
The Constitution of the Russian Federation does not contain a complete list of cases of exemption from the obligation to give testimony, otherwise the current legislation, which should not contradict the Constitution, could not expand this list.
Date of publication: 01/12/2015 Date of modification: 14/12/2016
