Video recording as evidence of an administrative offense

When video recording of an administrative offense is evidence in the case

On November 15, 2018, the Supreme Court, as part of the panel of judges of the Cassation Administrative Court, in the framework of case No. 524/5536/17, administrative proceedings No. K / 9901/1403/17 (USRSR No. 77860158), examined the issue of video recording of an administrative offense as evidence in the case.

Article 245 of the Code of Administrative Offenses establishes that the objectives of proceedings in cases of administrative offenses are: timely, comprehensive, complete and objective clarification of the circumstances of each case, its resolution in strict accordance with the law, ensuring the execution of the decision made, as well as identifying the reasons and conditions conducive to the commission of administrative offenses, crime prevention, education of citizens in the spirit of observance of laws, strengthening the rule of law.

Article 280 of the Code of Administrative Offenses establishes the duty of an official, when considering a case of an administrative offense, to find out whether an administrative offense has been committed and whether the person is guilty of committing it.

In accordance with Article 251 of the Code of Administrative Offenses, evidence in a case of an administrative offense is any factual data on the basis of which, in the manner prescribed by law, the body (official) establishes the presence or absence of an administrative offense, the guilt of a given person in committing it and other circumstances relevant to correct resolution of the case.

These data are established by the protocol on the administrative offense, explanations of the person brought to administrative responsibility, victims, witnesses, expert opinion, material evidence, testimony of technical instruments and technical means that have the functions of photography and filming, video recording or means of photography and filming, video recording, which are used in monitoring the implementation of rules, norms and standards related to road safety, protocols on the seizure of things and documents, as well as other documents.

So, bringing a person to administrative responsibility is possible only if there is an event of an administrative offense and the person’s guilt in committing it, which is confirmed by appropriate evidence.

Thus, on April 26, 2018, the Supreme Court, as part of the panel of judges of the Cassation Administrative Court in case No. 338/855/17, administrative proceedings No. K / 9901/18195/18 (USSR No. 73700356), indicated that an analysis of the provisions of the articles of the Code of Administrative Offenses allows us to make conclusion that the content of the resolution in the case of an administrative offense must comply with the requirements provided for in Articles 283 and 284 of the Code of Administrative Offenses.

In it, in particular, it is necessary to provide evidence on which the conclusion that a person has committed an administrative offense is based and indicate the reasons for rejecting other evidence referred to by the offender or the arguments expressed by the latter.

Separately, it should be noted that the Supreme Court, in its decision dated April 26, 2018 in case No. 338/1/17, explained that visual observation of compliance with traffic rules by employees of the National Police can serve as evidence in the case only if it is recorded in the established law order.

And to confirm the plaintiff’s violation of the Traffic Rules of Ukraine, the defendant, in accordance with Art. 251 of the Code of Administrative Offenses must provide, in particular, a video recording of the event and photographs.

The description of an administrative offense in itself cannot be adequate evidence that a person has committed such an offense.

According to Article 31 of Law No. 580-VIII, the police can take preventive measures, including: checking a person’s documents; interviewing a person; stopping a vehicle; the use of technical instruments and technical means that have the functions of photography and filming, video recording, photo and filming equipment, and video recording.

Article 40 of Law No. 580-VIII establishes that the police, in order to ensure public safety and order, can attach automatic photo and video equipment to uniforms, official vehicles, install/place automatic photo and video equipment on the outer perimeter of roads and buildings, as well as use information received from automatic photo and video equipment in someone else’s possession for the purpose of:

1) prevention, detection or recording of an offense, protection of public safety and property, ensuring the safety of persons;

2) ensuring compliance with traffic rules.

In accordance with Article 77 of the CAS of Ukraine, in cases of challenging decisions, actions or inaction of a subject of power, the responsibility for proving the legality of his decision, action or inaction rests with the defendant.

In accordance with Article 283 of the Code of Administrative Offenses, having considered a case of an administrative offense, the body (official) makes a decision on the case.

The decision on the case must contain:

name of the body (official) that issued the decision, date of consideration of the case;

information about the person against whom the case is being considered;

description of the circumstances established during the consideration of the case;

indications of the normative act providing for liability for this administrative offense;

decision made in the case.

A resolution in a case of an administrative offense in the field of road safety, in addition to the data specified in Part 2 of this article, must contain information about:

date, time and place of the administrative offense;

a vehicle that was recorded at the time the offense was committed (make, model, license plate);

technical means used to record photos or videos;

the amount of the fine and the procedure for its payment;

legal consequences of failure to comply with an administrative penalty and the procedure for appealing it;

a tear-off receipt indicating the details and possible methods of paying the administrative penalty in the form of a fine.

The video recording presented by the police to confirm the fact that the driver violated traffic rules cannot be considered adequate evidence due to the fact that the appealed series decision on administrative liability does not contain references to the technical means with which this video recording was made.

At the same time, the complainant’s arguments are groundless that information about the technical means with which a photo or video recording was made must be indicated in the resolution on an administrative offense only in the case of recording an offense carried out in automatic mode, since part three of Article 283 of the Code of Administrative Offenses directly stipulates that the resolution on the case about an administrative offense in the field of ensuring road safety, in addition to the data specified in part 2 of this article, must contain information, in particular about the technical means with which a photo or video recording of the violation was made.

Should the traffic police inspector present evidence of a violation?

The content of the article

According to current legislation, and in particular, Part 1 of Art. 25.1 of the Code of Administrative Offenses of the Russian Federation, the traffic police inspector who stopped the driver for violating traffic rules and drew up the appropriate protocol on such violation is obliged to familiarize the driver of the stopped vehicle with all the materials of the case. It is worth considering the fact that the traffic police inspector, until a case of administrative offense is initiated, can only indicate on what basis the vehicle was stopped, and is not obliged to provide evidence in this case. Only after an administrative case has been initiated, familiarization of the driver with his rights and case materials becomes the direct responsibility of the inspection officer.

Important! An administrative case is considered initiated from the moment a protocol of inspection of the scene of the incident is drawn up regarding an administrative offense.

Evidence is an integral part of the case of an administrative offense, therefore, at the first request, the traffic police officer who drew up the report is obliged to provide it to the driver. Taking into account this fact and the direct instructions of Art. 25.1 of the Code of Administrative Offenses of the Russian Federation, the driver also has the right to file petitions and challenges, use the legal assistance of a defense attorney, and give explanations. If the inspector refuses to provide the driver with evidence in the case, then this fact must be written down before signing the protocol on the administrative offense. Please indicate, referring to Art. 25.1 of the Code of Administrative Offenses of the Russian Federation, that you requested to provide evidence, but the traffic police inspector refused without explanation. It should also be mentioned that it is necessary to immediately request a copy of the decree after it has been signed.

How should a traffic police officer prove your violation?

Despite the fact that the inspector is obliged to present the driver with evidence of the violation, he is not at all obliged to justify it. No matter how paradoxical it may sound, it is true. The presumption of innocence of the Code of Administrative Offenses of the Russian Federation in terms of traffic violations does not apply. The driver has the right to appeal the decision to bring him to administrative responsibility within 10 days, but he will have to prove his innocence independently in court. This category of cases is not subject to state duty.

Thus, in the Ruling of the Constitutional Court of the Russian Federation dated March 22, 2011 No. 391-О-О, the court explained in detail the special procedure for an alleged traffic violator to prove his innocence.

It is worth taking into account the fact that in all cases of restriction of the driver’s rights and freedoms, the traffic police officer is obliged to explain to him the basis and reason for such a restriction, as well as his rights and obligations arising in connection with this. This rule was established by Order of the Ministry of Internal Affairs of Russia dated March 2, 2009 No. 185 “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.”

Sometimes violations of traffic rules are recorded using video or photography, which are sent to the traffic police department, where, based on the materials provided, a decision is made on an administrative violation in the absence of the driver. If the driver received a decision to bring him to administrative responsibility with attached photo or video evidence by mail, you should pay attention to the date when the offense was committed. If another person was driving a car owned by the driver and recorded on a photo or video at the time of violation of traffic rules, then you should file a claim in court to challenge the decision on an administrative violation. To do this, the driver must ensure that the traffic violator appears in court, who can confirm his arguments.

If the driver does not want to frame the violator, then you don’t have to worry, since the statute of limitations for bringing to administrative responsibility is 3 months (with the exception of Articles 12.8, 12.24, 12.26, 12.27, 12.30 of the Code of Administrative Offenses of the Russian Federation - here the statute of limitations is 1 year).

Often, traffic police inspectors themselves violate federal law by refusing to provide the driver with evidence contained in the administrative violation case file. In such cases, you should not give in to emotions, but simply indicate in the protocol that you do not agree with the violation charged to you, take a copy and go to court with a statement of claim.

If the violation is recorded on a photo or video recorder, the traffic police officer is obliged to indicate in the protocol that the violation was recorded using technical means of video recording of violations, be sure to indicate the name of the device, its number and the validity period of the verification certificate, which he is also obliged to show to the driver for verification. If the traffic police inspector evades these actions, then this circumstance must be recorded in the protocol.

Considering that regulation No. 185 in clauses 24 and 25 allows both the driver and the traffic police officer to record the conversation, if evidence is not provided at the driver’s request, especially if video recording was mentioned, the conversation may be ended.

If the driver refused to sign the protocol because the traffic police officers did not provide evidence, then such an action in court will be perceived as a sign of the driver’s guilt. It is better to sign the protocol, but indicate that the driver does not agree with the specified offense.

If, during a conversation with a traffic police inspector, the driver assumes that the reason for the stop is illegal, the traffic police officer should be reminded of his responsibility in accordance with Art. 12.35 Code of Administrative Offenses of the Russian Federation.

Proof is the most difficult action in a court hearing, which in most cases is beyond the power of a person without a legal education. But at the same time, it is worth remembering that a clear knowledge of the law will help, when stopping a vehicle, not only to act competently when communicating with a traffic police officer, but also to point out violations on his part in order to challenge the decision made on an administrative offense. If you have a similar situation, immediately contact a car lawyer who will help resolve the conflict situation and help defend your legitimate interests in court. Our specialists are ready to come to your aid. Fill out the feedback form or contact the phone numbers listed on our website.

ATTENTION! Due to recent changes in legislation, the information in this article may be out of date! Our lawyer will advise you free of charge.

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Photo and video recording as evidence

On May 7, Federal Law No. 114-FZ of April 26, 2016 “On amending Article 26.7 of the Code of the Russian Federation on Administrative Offenses regarding the mandatory inclusion of photographic and film materials, sound and video recordings as evidence in a case of an administrative offense” came into force. .

All major media outlets mentioned what happened, for some reason focusing on the fact that it was the President who signed the law:

Russian President Vladimir Putin signed a law according to which courts will have to take into account photography and filming, as well as sound and video recordings as evidence in cases of road accidents.

Russian President Vladimir Putin signed a law obliging courts to take into account photo and film materials, sound and video recordings, including video recorders, as evidence when considering cases of administrative offenses.

President Vladimir Putin signed a new edition of the Code of Administrative Offenses of the Russian Federation, obliging courts to consider photographs and video recordings submitted by the parties as evidence. Until now, the law left the inclusion of such evidence to the discretion of judges. The Kremlin says that the amendment is primarily aimed at protecting the rights of drivers when considering disputes about traffic violations. Other plaintiffs may also take advantage of the new opportunity, particularly in litigation alleging election irregularities.

Leaving journalists to blame for obvious blunders such as the fact that plaintiffs can somehow take advantage of changes in the Code of Administrative Offenses of the Russian Federation, let’s try to understand the essence of the law. So, open it and read:

Amend Part 2 of Article 26.7 of the Code of the Russian Federation on Administrative Offenses (Collection of Legislation of the Russian Federation, 2002, No. 1, Art. 1) by replacing the words “may be attributed” with the word “relate”.

We open the amended article of the Code of Administrative Offenses in the previous edition and see:

2. Documents may contain information recorded both in writing and in another form. Documents may include materials from photography and filming, sound and video recordings, information databases and data banks and other media.

At first glance, it is clear that something does not agree with what the journalists write: we are not talking about evidence, but about documents. What's the difference? Let's understand further.

Code of Administrative Offenses of the Russian Federation. Article 26.2. Proof

1. Evidence in a case of an administrative offense is any factual data on the basis of which the judge, body, official in charge of the case establishes the presence or absence of an administrative offense event, the guilt of the person brought to administrative responsibility, as well as other circumstances, important for the correct resolution of the case.
2. These data are established by the protocol on an administrative offense, other protocols provided for by this Code, explanations of the person against whom proceedings are being conducted for an administrative offense, testimony of the victim, witnesses, expert opinions, other documents , as well as testimony of special technical means, material evidence.

As you can see, documents are one type of evidence. Go ahead.

Code of Administrative Offenses of the Russian Federation. Article 26.7. Documentation

1. Documents are recognized as evidence if the information stated or certified in them by organizations, their associations, officials and citizens is important for the proceedings in the case of an administrative offense.

That is, not any document is recognized by the court as evidence, but only one that (in the opinion of the judge!) is important for the case (sign of relevance).

Finally, the most important point, completely ignored by journalists:

Code of Administrative Offenses of the Russian Federation. Article 26.11. Evaluation of evidence

A judge, members of a collegial body, or an official conducting proceedings in a case of an administrative offense evaluate the evidence according to their 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.

Summarize. The whole essence of the changes comes down to a technical correction: now a video recording does not “may be a document, or may be an unknown thing,” but is always considered a document. However, at the same time:

1. The law does not oblige a judge, traffic police inspector or other official to recognize them as evidence and attach them to the case materials.
A refusal to include, for example, may look like this: “It is not clear from the video recording that it was made on the day of the alleged offense.” 2. Even if a judge or inspector recognizes the relevance of the video recording and attaches it to the case file, the law does not oblige them to make it a priority when considering the case. So, for example, a judge can ignore a video recording and make a judicial act in accordance with witness testimony that contradicts it, justifying this by the fact that “the source and circumstances of obtaining the recording are unknown” (a sign of admissibility), “it is impossible to establish the place/time of the video recording” (a sign of relevance ), “there are doubts about the authenticity of the recording, since the information contained on it contradicts other evidence” (a sign of reliability), etc.

Thus, with the introduction of amendments to the Code of Administrative Offenses of the Russian Federation, essentially nothing has changed: if the judge does not want to base the decision on the video recording, then he will not do so. And how lawyers will call this record - a “document” or something else - the average driver does not care at all.

Reckless behind the scenes

The essence of the problem is that it is for car owners that an exception has been made to the inviolable rule of the presumption of innocence. That is, if he is fined, he must prove that he did not violate anything. The practice of punishing drivers is developing in a rather strange way, and some traffic police inspectors, as well as judges, believe that the burden of proving innocence when violating the rules lies with the driver himself. However, the Supreme Court looked at this situation differently.

Let's say the photo shows a driver driving on the wrong side of a double solid line. He definitely breaks the rules. Or the photograph shows how the driver turns around through a solid road. These are indisputable cases. But what to do in situations where nothing is visible in the photographs except the car itself?

Where is the evidence of violation of the rules? And most importantly, which ones specifically? If we are talking about speeding, these are radar readings. What if we are talking about violation of markings or signs? The Supreme Court considered that in controversial situations, judges must study all the circumstances of the case.

This happened to Denis Astashin, who received a “letter of happiness” from the Center for Automated Photo and Video Recording of the State Traffic Safety Inspectorate of the Samara Region. In the photo the car is driving in a straight line. And the resolution states that he committed a violation provided for in Part 2 of Article 12.16 of the Administrative Code, that is, turning left or making a U-turn in violation of the requirements prescribed by road signs or markings. For which he was fined one thousand rubles.

Since there was no explanation in the letter of what exactly Astashin violated, he decided to appeal this decision.

But the court of first instance considered that the driver made a left turn in violation of the requirements prescribed by road sign 5.15.1 “Driving directions along lanes.” At the same time, he referred to the written review of the center inspector.

The inspector pointed out that “the photographic material stored in the official database shows that the driver allowed passage from the right lane to the left, ignoring the requirements prescribed by road signs and road markings.”

The court also pointed out the obligation to prove the innocence of the owner of the car. But he did not provide such evidence. The appellate court also agreed with the court of first instance. However, the Supreme Court disagreed.

He noted that from the photographs presented in the case, it can only be seen that the car of the alleged offender is moving straight, crossing the stop line.

The driver's alleged left turn or U-turn in the wrong place or in violation of the rules is not captured in the photographs.

In addition, the resolution does not indicate exactly what violation Astashin committed: what specific requirements did he violate? What signs or what markings prohibited him from performing this maneuver at this place on the road? There is only a link to the review of the TsAFAP inspector. Also in the pictures there are no signs that the traffic inspector refers to.

At the same time, the court of first instance, as well as the appellate court, did not request the location of road signs and markings on this section of the road.

Moreover, he did not question the inspector. And the review of this inspector was added to the file in the form of a copy that was not properly certified. That is, such a document cannot serve as evidence and could not be included in the case at all.

As for the exception to the presumption of innocence, the trial of the case does not negate the need for the court to clarify all the circumstances that are important for the correct resolution of the case. The Code of Administrative Offenses is not limited to one article on excluding the need to prove who was driving. For example, there are requirements of Articles 24.1, 26.1 of the Code of Administrative Offenses regarding the clarification of all circumstances relevant for the correct resolution of the case, as well as requirements of Articles 26.2, 26.11 of the Code regarding the directness of the examination of evidence. So, when considering the case in lower instances, they were not observed. And there are other articles of the Code of Administrative Offences, aimed at ensuring a comprehensive, complete, objective and timely clarification of all circumstances and a fair resolution of cases of administrative offenses. And the Constitutional Court has repeatedly pointed this out in its rulings.

This distribution of responsibilities for proving the fact of violation of the rules, as the Supreme Court indicated, does not relieve either the authorized bodies, that is, the traffic police, or the courts from collecting and providing the necessary evidence of violation of the rules.

The Supreme Court also recalled that any doubt about the guilt of a person is interpreted in favor of the accused.

But all these statutory requirements were not fulfilled by either the trial court or the appellate court.

Therefore, the Supreme Court overturned all decisions of lower courts in this case, as well as the decision on the fine itself. But the proceedings in the case were terminated due to the lack of proof of the circumstances.

The Supreme Court once again clarified that a photograph alone is not enough to decide on a violation. Other evidence needs to be examined. And since they are not there, then all doubts should be interpreted in favor of the accused. When appealing chain letters, courts are obliged to examine all the circumstances of the case.

It is clear that because of a fine of 500 rubles, not every driver will complain. But even a small number of complaints should be a serious signal to local authorities and the traffic police that something is not working correctly.