Are witnesses needed when drawing up an administrative protocol?

Protocol on administrative offense of the traffic police

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):

1. delivery;
2. administrative detention;
3. personal search, search of things, search of a vehicle in the possession of an individual; inspection of premises, territories, things and documents located there;
4. seizure of things and documents;
5. suspension from driving a vehicle of the relevant type;
6. examination for alcohol intoxication;
7. medical examination for intoxication;
8. detention of a vehicle;
9. seizure of goods, vehicles and other things;
10. drive unit;
11. 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. 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 Rights.ru

Additional information on the topic:

Video recording instead of witnesses when compiling administrative material

8 800 550 58 83 (03.00-12.00 Moscow time) [email protected]

Artem Fedorov

Since October 2014, when applying measures to ensure proceedings in a case of an administrative offense, officials have been given the opportunity to use video recordings instead of witnesses.

Recording the conduct of procedural actions using video recordings, and not in the presence of witnesses, makes it possible to more objectively establish whether officials comply with the entire procedure for bringing a person to administrative responsibility. The presence of a video recording in the case file makes it possible to prove in court the innocence of the person involved.

For example, the driver introduced himself by the name of another person, refused to undergo a medical examination and “set up” an acquaintance for deprivation of the right to drive a vehicle. During the consideration of the case, the judge of the second instance, when appealing the decision, using the video recording available in the case materials, established that a person who was not involved in the events of the offense was brought to administrative responsibility and canceled the decision imposing an administrative penalty.

As the Supreme Court of the Russian Federation indicated in its decision dated January 20, 2017 No. 36-AD16-8, the use of video recording when compiling administrative material is one of the guarantees of ensuring the rights of a person brought to administrative responsibility, in order to eliminate any doubts regarding the completeness and correctness of recording in the corresponding protocol or act of content and results of the ongoing procedural action.

The grounds that served to cancel all judicial acts in this case of an administrative offense were the circumstances that the video recording attached to the case materials actually reflects information about the driver signing the protocols and report drawn up in relation to him, does not contain a procedure for examining the driver for alcohol intoxication, sampling of exhaled air and its results were not recorded on video.

The use of video recordings by officials is regulated by Part 2 of Article 27.12 of the Code of Administrative Offenses of the Russian Federation, which establishes that removal from driving a vehicle of the relevant type, examination for alcohol intoxication, and referral for a medical examination for intoxication are carried out by officials who are granted the right of state supervision and safety control movement and operation of a vehicle of the corresponding type, in the presence of two witnesses or using video recording.

When defending a person brought to administrative responsibility, video recording makes it possible to identify all possible violations committed by the official when applying security measures in the case, which ultimately allows the proceedings to be terminated.

We should not forget about the other side of the coin: a person guilty of committing an administrative offense will be deprived of the opportunity to evade responsibility if the police officers carry out all procedural actions recorded using video recording equipment correctly. Whether the video recording was made using the officials’ regular technical equipment or using their mobile phones does not matter, since it is the content of the video recording itself that has evidentiary value, and not the means with which the video recording was made.

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