How to invalidate a traffic police report
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The Supreme Court (SC) of the Russian Federation again sided with drivers, pointing out to traffic police inspectors the need to draw up protocols without errors and fill out all fields of the document: any mistake by a traffic inspector is interpreted in favor of motorists and is a reason to restore their right to drive.
A Moscow resident, who was stopped by traffic police officers on Rublevskoye Highway, reached the highest authority with a complaint. They drew up a report on the driver of the Land Rover Freelander II about his refusal to undergo a medical examination, and on the basis of this document, first the magistrate court of the capital’s Kuntsevo district deprived him of his driving privileges and fined him 1.5 thousand rubles, and then the Moscow City Court recognized this decision as legal. Then the car enthusiast filed a complaint with the Supreme Court of the Russian Federation, and Judge Sergei Nikiforov discovered a whole bunch of violations in the protocol, which he analyzed in detail.
Temporary glitch
The Supreme Court reminds that evidence in a case of an administrative offense includes a protocol on an administrative offense, which, according to Part 2 of Article 28.2 of the Code of Administrative Offenses of the Russian Federation, must reflect:
- event of an administrative offense,
— place and time of commission of the administrative offense.
“Establishing the place and time of an administrative offense is essential for the correct consideration of a case of an administrative offense, in particular for the protection of a person brought to administrative responsibility.
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 charges against this person,” notes the Supreme Court.
At the same time, in the case of the Moscow driver, the protocols contained different data on the time the offense was committed: according to one document, the offense occurred at 2 hours 40 minutes, and according to another - forty minutes later (at 3 hours 20 minutes).
The judge of the Supreme Court of the Russian Federation considered this error to be significant.
Clarification of rights
According to Part 3 of Article 28.2 of the Code of Administrative Offenses of the Russian Federation, when drawing up a protocol on an administrative offense, an individual or a legal representative of a legal entity against whom a case of an administrative offense has been initiated, their rights and obligations are explained, which must be recorded in the protocol.
Ignoring this requirement leads to the fact that the evidence in the case is declared inadmissible by the courts, the highest authority emphasizes. She refers to paragraph 18 of the resolution of the plenum of March 24, 2005 No. 5 - when considering a case, the collected evidence must be assessed from the standpoint of compliance with the requirements of the law upon receipt.
“A violation entailing the impossibility of using evidence may be recognized, in particular, by obtaining explanations from a victim, a witness, a person in respect of whom proceedings are being conducted in a case, who were not previously explained their rights and obligations, provided for in Part 1 of Article 25.1, Part 2 of Article 25.2, part 3 of article 25.6 of the Code of Administrative Offenses of the Russian Federation and article 51 of the Constitution,” the Supreme Court points out.
In this case, the protocol does not indicate that the provisions of Article 25.1 of the Code of Administrative Offenses were explained to the driver: his signature is missing in the corresponding column of the document. There is no receipt in the case explaining the car owner’s rights.
“The foregoing indicates that the person brought to administrative responsibility was not aware of the scope of procedural rights granted to him, which resulted in a violation of his right to defense,” notes the RF Armed Forces.
Witnesses and the Constitution
The highest authority reminds that evidence in the case is any factual data on the basis of which the presence or absence of an administrative offense event, the guilt of the person held accountable, as well as other circumstances that are important for the correct resolution of the case are established (Part 1 of Article 26.2 of the Code of Administrative Offenses of the Russian Federation) .
These data are established by the protocol, explanations of the person brought to justice, testimony of the victim, witnesses, expert opinions, as well as testimony of special technical means, material evidence (Part 2 of Article 26.2 of the Code of Administrative Offenses of the Russian Federation).
The use of evidence is not allowed if it was obtained in violation of the law, and the lack of explanations of the norms of the Code of Administrative Offenses and the Constitution by attesting witnesses refers to such violations, the Supreme Court notes.
He refers to the written explanations of two witnesses, from which it is clear that the provisions of Article 25.1 of the Code of Administrative Offenses and the norms of Article 51 of the Constitution were not explained to them, since the documents do not contain their signature about this.
“Consequently, the protocol on an administrative offense and written explanations of witnesses are unacceptable evidence in the case and could not be used by the court when making a decision,” the judge emphasizes.
Notification of the offender
In addition, in accordance with Part 2 of Article 25.1 of the Code of Administrative Offenses, the case must be considered with the participation of the person held accountable, and the exception is cases when there is evidence of proper notification of the offender about the trial, to which he did not appear voluntarily and without good reason.
But in the materials of the case under consideration there is no information about the proper notification of the Land Rover driver about the upcoming trial.
“Similar information is missing in the report of the automated information system “PC Justices of the Peace.” From the history of the registered mail delivery operation, the notice of notification (to the driver) of the date of the court hearing was in the “processing” stage.
Thus, the procedure for considering a case of an administrative offense was violated, since the case was considered by a magistrate in the absence of (the driver), who was not properly notified of the place and time of the consideration of the case,” considers the RF Armed Forces.
He came to the conclusion that all the mistakes made by the traffic police officers and the courts are significant, which means it cannot be considered that a fair and correct decision was made in the case. In this regard, the Supreme Court not only canceled the decision to deprive the driver of his license and impose a fine on him, but also stopped the administrative prosecution of the motorist due to the lack of proof of the circumstances on the basis of which the decision was made.
Official website
of the Supreme Court of the Russian Federation
Supreme Court of the Russian Federation
The Supreme Court explained when the traffic police protocol is invalid
The Supreme Court (SC) of the Russian Federation again sided with drivers, pointing out to traffic police inspectors the need to draw up protocols without errors and fill out all fields of the document: any mistake by a traffic inspector is interpreted in favor of motorists and is a reason to restore their right to drive.
A Moscow resident, who was stopped by traffic police officers on Rublevskoye Highway, reached the highest authority with a complaint. They drew up a report on the driver of the Land Rover Freelander II about his refusal to undergo a medical examination, and on the basis of this document, first the magistrate court of the capital’s Kuntsevo district deprived him of his driving privileges and fined him 1.5 thousand rubles, and then the Moscow City Court recognized this decision as legal. Then the car enthusiast filed a complaint with the Supreme Court of the Russian Federation, and Judge Sergei Nikiforov discovered a whole bunch of violations in the protocol, which he analyzed in detail.
The Supreme Court reminds that evidence in a case of an administrative offense includes a protocol on an administrative offense, which, according to Part 2 of Article 28.2 of the Code of Administrative Offenses of the Russian Federation, must reflect:
- event of an administrative offense,
— place and time of commission of the administrative offense.
“Establishing the place and time of an administrative offense is essential for the correct consideration of a case of an administrative offense, in particular for the protection of a person brought to administrative responsibility.
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 charges against this person,” notes the Supreme Court.
At the same time, in the case of the Moscow driver, the protocols contained different data on the time the offense was committed: according to one document, the offense occurred at 2 hours 40 minutes, and according to another - forty minutes later (at 3 hours 20 minutes).
The judge of the Supreme Court of the Russian Federation considered this error to be significant.
According to Part 3 of Article 28.2 of the Code of Administrative Offenses of the Russian Federation, when drawing up a protocol on an administrative offense, an individual or a legal representative of a legal entity against whom a case of an administrative offense has been initiated, their rights and obligations are explained, which must be recorded in the protocol.
Ignoring this requirement leads to the fact that the evidence in the case is declared inadmissible by the courts, the highest authority emphasizes. She refers to paragraph 18 of the resolution of the plenum of March 24, 2005 No. 5 - when considering a case, the collected evidence must be assessed from the standpoint of compliance with the requirements of the law upon receipt.
“A violation entailing the impossibility of using evidence may be recognized, in particular, by obtaining explanations from a victim, a witness, a person in respect of whom proceedings are being conducted in a case, who were not previously explained their rights and obligations, provided for in Part 1 of Article 25.1, Part 2 of Article 25.2, part 3 of article 25.6 of the Code of Administrative Offenses of the Russian Federation and article 51 of the Constitution,” the Supreme Court points out.
In this case, the protocol does not indicate that the provisions of Article 25.1 of the Code of Administrative Offenses were explained to the driver: his signature is missing in the corresponding column of the document. There is no receipt in the case explaining the car owner’s rights.
“The foregoing indicates that the person brought to administrative responsibility was not aware of the scope of procedural rights granted to him, which resulted in a violation of his right to defense,” notes the RF Armed Forces.
Witnesses and the Constitution
The highest authority reminds that evidence in the case is any factual data on the basis of which the presence or absence of an administrative offense event, the guilt of the person held accountable, as well as other circumstances that are important for the correct resolution of the case are established (Part 1 of Article 26.2 of the Code of Administrative Offenses of the Russian Federation) .
These data are established by the protocol, explanations of the person brought to justice, testimony of the victim, witnesses, expert opinions, as well as testimony of special technical means, material evidence (Part 2 of Article 26.2 of the Code of Administrative Offenses of the Russian Federation).
The use of evidence is not allowed if it was obtained in violation of the law, and the lack of explanations of the norms of the Code of Administrative Offenses and the Constitution by attesting witnesses refers to such violations, the Supreme Court notes.
He refers to the written explanations of two witnesses, from which it is clear that the provisions of Article 25.1 of the Code of Administrative Offenses and the norms of Article 51 of the Constitution were not explained to them, since the documents do not contain their signature about this.
“Consequently, the protocol on an administrative offense and written explanations of witnesses are unacceptable evidence in the case and could not be used by the court when making a decision,” the judge emphasizes.
In addition, in accordance with Part 2 of Article 25.1 of the Code of Administrative Offenses, the case must be considered with the participation of the person held accountable, and the exception is cases when there is evidence of proper notification of the offender about the trial, to which he did not appear voluntarily and without good reason.
But in the materials of the case under consideration there is no information about the proper notification of the Land Rover driver about the upcoming trial.
“Similar information is missing in the report of the automated information system “PC Justices of the Peace.” From the history of the registered mail delivery operation, the notice of notification (to the driver) of the date of the court hearing was in the “processing” stage.
Thus, the procedure for considering a case of an administrative offense was violated, since the case was considered by a magistrate in the absence of (the driver), who was not properly notified of the place and time of the consideration of the case,” considers the RF Armed Forces.
He came to the conclusion that all the mistakes made by the traffic police officers and the courts are significant, which means it cannot be considered that a fair and correct decision was made in the case. In this regard, the Supreme Court not only canceled the decision to deprive the driver of his license and impose a fine on him, but also stopped the administrative prosecution of the motorist due to the lack of proof of the circumstances on the basis of which the decision was made.
Invalidation of the traffic police protocol
Good afternoon. I would like your advice on the following issue. IDPS stopped me and incriminated me at 12.15. Part 4, showed unclear video footage and drew up a protocol. In the protocol, the witness indicated a partner; I was alone. I do not agree with the protocol, I demand legal assistance and point out that I did not violate traffic rules and the car cannot be unambiguously identified as mine.
I was moving along the highway from Ivanovo to N. Novgorod, stopped at 256 km, and in the protocol in the column “place of violation” it is indicated that N. Novgorod - Ivanovo 165 km. Those. This is a designation of one place, but the direction of movement is different. Is it fundamental in indicating the location of the violation, and is it possible to apply for the cancellation of the protocol on this basis?
No, this reason is not fundamental.
It will be fundamental, for example, to incorrectly indicate the direction of movement in the description of the offense.
A photo-video recording device, unless it is connected to a radar, is not a technical measuring device that is subject to any verification.
Therefore, the protocol should not contain any such information. The name of the video recording complex and its number may be indicated there. Maybe, but shouldn't.
Provisions of Art. 26.8 of the Code of Administrative Offenses does not apply to a video recording system without a radar, which is essentially a video recorder.
Dear Elena, if a traffic violation protocol has ALREADY BEEN DONE, then there is a chance to challenge the protocol only in court, with such “clarity” of the photo, you should pay attention to the following legal facts; the protocol must indicate the type and brand of the means with which the violation was recorded; in addition, the protocol must indicate According to the Code of Administrative Offenses of the Russian Federation, the date of state verification of the technical device and information that it is included in the register of means approved for use for these purposes MUST BE INDICATED. Only if these circumstances are met, photographic recording in court can be recognized as acceptable evidence, otherwise the protocol can be challenged. You need to involve local lawyers in your dispute with the traffic police.
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Kudryavtsev Vadim Anatolievich
Your reliable lawyer
“Civilization has led to the fact that it no longer matters who is right and who is wrong, what matters is whose lawyer is better”
How to invalidate a traffic police report.
The traffic police report is one of the main evidence in administrative cases in case of violation of road transport rules. But unfortunately in Russia the practice has developed that judges do not pay attention to how the traffic police protocol is drawn up and often make illegal decisions. Traffic police officers take advantage of this and draw up protocols that do not comply with the law. Therefore, a lot depends on how far a person is ready to go in defending his rights, because the higher the court, the easier it is to make a decision.
I would like to share with you the practice of the RF Armed Forces in cases of this category, which indicate how the traffic police protocol should be drawn up and how the court should react to the protocols. Although we do not have case law in Russia, lawyers and citizens can refer to this practice of the Supreme Court of the Russian Federation.
The Supreme Court of the Russian Federation sided with drivers, pointing out to traffic police inspectors the need to draw up protocols without errors and fill out all fields of the document: any mistake by a traffic inspector is interpreted in favor of motorists and is a reason to restore their right to drive.
A Moscow resident, who was stopped by traffic police officers on Rublevskoye Highway, reached the highest authority with a complaint. They drew up a report on the driver of the Land Rover Freelander II about his refusal to undergo a medical examination, and on the basis of this document, first the magistrate court of the capital’s Kuntsevo district deprived him of his driving privileges and fined him 1.5 thousand rubles, and then the Moscow City Court recognized this decision as legal. Then the car enthusiast filed a complaint with the Supreme Court of the Russian Federation, and Judge Sergei Nikiforov discovered a whole bunch of violations in the protocol, which he analyzed in detail.
The Supreme Court reminds that evidence in a case of an administrative offense includes a protocol on an administrative offense, which, according to Part 2 of Article 28.2 of the Code of Administrative Offenses of the Russian Federation, must reflect:
- event of an administrative offense,
— place and time of commission of the administrative offense.
“Establishing the place and time of an administrative offense is essential for the correct consideration of a case of an administrative offense, in particular for the protection of a person brought to administrative responsibility.
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 charges against this person,” notes the Supreme Court.
At the same time, in the case of the Moscow driver, the protocols contained different data on the time the offense was committed: according to one document, the offense occurred at 2 hours 40 minutes, and according to another - forty minutes later (at 3 hours 20 minutes).
The judge of the Supreme Court of the Russian Federation considered this error to be significant.
According to Part 3 of Article 28.2 of the Code of Administrative Offenses of the Russian Federation, when drawing up a protocol on an administrative offense, an individual or a legal representative of a legal entity against whom a case of an administrative offense has been initiated, their rights and obligations are explained, which must be recorded in the protocol.
Ignoring this requirement leads to the fact that the evidence in the case is declared inadmissible by the courts, the highest authority emphasizes. She refers to paragraph 18 of the resolution of the plenum of March 24, 2005 No. 5 - when considering a case, the collected evidence must be assessed from the standpoint of compliance with the requirements of the law upon receipt.
“A violation entailing the impossibility of using evidence may be recognized, in particular, by obtaining explanations from a victim, a witness, a person in respect of whom proceedings are being conducted in a case, who were not previously explained their rights and obligations, provided for in Part 1 of Article 25.1, Part 2 of Article 25.2, part 3 of article 25.6 of the Code of Administrative Offenses of the Russian Federation and article 51 of the Constitution,” the Supreme Court points out.
In this case, the protocol does not indicate that the provisions of Article 25.1 of the Code of Administrative Offenses were explained to the driver: his signature is missing in the corresponding column of the document. There is no receipt in the case explaining the car owner’s rights.
“The foregoing indicates that the person brought to administrative responsibility was not aware of the scope of procedural rights granted to him, which resulted in a violation of his right to defense,” notes the RF Armed Forces.
The highest authority reminds that evidence in the case is any factual data on the basis of which the presence or absence of an administrative offense event, the guilt of the person held accountable, as well as other circumstances that are important for the correct resolution of the case are established (Part 1 of Article 26.2 of the Code of Administrative Offenses of the Russian Federation) .
These data are established by the protocol, explanations of the person brought to justice, testimony of the victim, witnesses, expert opinions, as well as testimony of special technical means, material evidence (Part 2 of Article 26.2 of the Code of Administrative Offenses of the Russian Federation).
The use of evidence is not allowed if it was obtained in violation of the law, and the lack of explanations of the norms of the Code of Administrative Offenses and the Constitution by attesting witnesses refers to such violations, the Supreme Court notes.
He refers to the written explanations of two witnesses, from which it is clear that the provisions of Article 25.1 of the Code of Administrative Offenses and the norms of Article 51 of the Constitution were not explained to them, since the documents do not contain their signature about this.
“Consequently, the protocol on an administrative offense and written explanations of witnesses are unacceptable evidence in the case and could not be used by the court when making a decision,” the judge emphasizes.
In addition, in accordance with Part 2 of Article 25.1 of the Code of Administrative Offenses, the case must be considered with the participation of the person held accountable, and the exception is cases when there is evidence of proper notification of the offender about the trial, to which he did not appear voluntarily and without good reason.
But in the materials of the case under consideration there is no information about the proper notification of the Land Rover driver about the upcoming trial.
“Similar information is missing in the report of the automated information system “PC Justices of the Peace.” From the history of the registered mail delivery operation, the notice of notification (to the driver) of the date of the court hearing was in the “processing” stage.
Thus, the procedure for considering a case of an administrative offense was violated, since the case was considered by a magistrate in the absence of (the driver), who was not properly notified of the place and time of the consideration of the case,” considers the RF Armed Forces.
Supreme Court of the Russian Federation, Magistrate Court, Supreme Court
The Supreme Court explained when the traffic police protocol is invalid
The Supreme Court (SC) of the Russian Federation again sided with drivers, pointing out to traffic police inspectors the need to draw up protocols without errors and fill out all fields of the document: any mistake by a traffic inspector is interpreted in favor of motorists and is a reason to restore their right to drive.
A Moscow resident, who was stopped by traffic police officers on Rublevskoye Highway, reached the highest authority with a complaint. They drew up a report on the driver of the Land Rover Freelander II about his refusal to undergo a medical examination, and on the basis of this document, first the magistrate court of the capital’s Kuntsevo district deprived him of his driving privileges and fined him 1.5 thousand rubles, and then the Moscow City Court recognized this decision as legal. Then the car enthusiast filed a complaint with the Supreme Court of the Russian Federation, and Judge Sergei Nikiforov discovered a whole bunch of violations in the protocol, which he analyzed in detail.
Temporary glitch
The Supreme Court reminds that evidence in a case of an administrative offense includes a protocol on an administrative offense, which, according to Part 2 of Article 28.2 of the Code of Administrative Offenses of the Russian Federation, must reflect:
- event of an administrative offense,
— place and time of commission of the administrative offense.
“Establishing the place and time of an administrative offense is essential for the correct consideration of a case of an administrative offense, in particular for the protection of a person brought to administrative responsibility.
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 charges against this person,” notes the Supreme Court.
At the same time, in the case of the Moscow driver, the protocols contained different data on the time the offense was committed: according to one document, the offense occurred at 2 hours 40 minutes, and according to another - forty minutes later (at 3 hours 20 minutes).
The judge of the Supreme Court of the Russian Federation considered this error to be significant.
Clarification of rights
According to Part 3 of Article 28.2 of the Code of Administrative Offenses of the Russian Federation, when drawing up a protocol on an administrative offense, an individual or a legal representative of a legal entity against whom a case of an administrative offense has been initiated, their rights and obligations are explained, which must be recorded in the protocol.
Ignoring this requirement leads to the fact that the evidence in the case is declared inadmissible by the courts, the highest authority emphasizes. She refers to paragraph 18 of the resolution of the plenum of March 24, 2005 No. 5 - when considering a case, the collected evidence must be assessed from the standpoint of compliance with the requirements of the law upon receipt.
“A violation entailing the impossibility of using evidence may be recognized, in particular, by obtaining explanations from a victim, a witness, a person in respect of whom proceedings are being conducted in a case, who were not previously explained their rights and obligations, provided for in Part 1 of Article 25.1, Part 2 of Article 25.2, part 3 of article 25.6 of the Code of Administrative Offenses of the Russian Federation and article 51 of the Constitution,” the Supreme Court points out.
In this case, the protocol does not indicate that the provisions of Article 25.1 of the Code of Administrative Offenses were explained to the driver: his signature is missing in the corresponding column of the document. There is no receipt in the case explaining the car owner’s rights.
“The foregoing indicates that the person brought to administrative responsibility was not aware of the scope of procedural rights granted to him, which resulted in a violation of his right to defense,” notes the RF Armed Forces.
Witnesses and the Constitution
The highest authority reminds that evidence in the case is any factual data on the basis of which the presence or absence of an administrative offense event, the guilt of the person held accountable, as well as other circumstances that are important for the correct resolution of the case are established (Part 1 of Article 26.2 of the Code of Administrative Offenses of the Russian Federation) .
These data are established by the protocol, explanations of the person brought to justice, testimony of the victim, witnesses, expert opinions, as well as testimony of special technical means, material evidence (Part 2 of Article 26.2 of the Code of Administrative Offenses of the Russian Federation).
The use of evidence is not allowed if it was obtained in violation of the law, and the lack of explanations of the norms of the Code of Administrative Offenses and the Constitution by attesting witnesses refers to such violations, the Supreme Court notes.
He refers to the written explanations of two witnesses, from which it is clear that the provisions of Article 25.1 of the Code of Administrative Offenses and the norms of Article 51 of the Constitution were not explained to them, since the documents do not contain their signature about this.
“Consequently, the protocol on an administrative offense and written explanations of witnesses are unacceptable evidence in the case and could not be used by the court when making a decision,” the judge emphasizes.
Notification of the offender
In addition, in accordance with Part 2 of Article 25.1 of the Code of Administrative Offenses, the case must be considered with the participation of the person held accountable, and the exception is cases when there is evidence of proper notification of the offender about the trial, to which he did not appear voluntarily and without good reason.
But in the materials of the case under consideration there is no information about the proper notification of the Land Rover driver about the upcoming trial.
“Similar information is missing in the report of the automated information system “PC Justices of the Peace.” From the history of the registered mail delivery operation, the notice of notification (to the driver) of the date of the court hearing was in the “processing” stage.
Thus, the procedure for considering a case of an administrative offense was violated, since the case was considered by a magistrate in the absence of (the driver), who was not properly notified of the place and time of the consideration of the case,” considers the RF Armed Forces.
He came to the conclusion that all the mistakes made by the traffic police officers and the courts are significant, which means it cannot be considered that a fair and correct decision was made in the case. In this regard, the Supreme Court not only canceled the decision to deprive the driver of his license and impose a fine on him, but also stopped the administrative prosecution of the motorist due to the lack of proof of the circumstances on the basis of which the decision was made.
