"LETTERS OF HAPPINESS": THE PHOTOGRAPHIC IMAGES VIOLATIONS OF THE RULE OF THE ROAD AND PROTECT THE DRIVERS OF THEIR RIGHTS.

The theme of the photograph traffic violations with being "in service" traffic police devices, and then sending mail to the owners of vehicles regulations on administrative offences, is now becoming more urgent. Recently, this practice has become so widespread that in the driving environment such decisions, coming home to a driver or owner of the vehicle, even got the ironic nickname: "letters of happiness". The more pressing issue of protection drivers of their interests in such situations. The principle responsibility of the owner of the vehicle committing the violation of operating in automatic mode special means of photo, film or video introduces Art. 14-1 of the code of administrative offences (hereinafter " the code") (as in force from 16.11.2008,) including 2 of this article contains a provision: under the circumstances, evidence of the Commission of an offence by another person, the owner of a 10-day period from the date of the judgment, has the right to inform the Agency or official who issued the decision. While the execution of the judgment is suspended, and the SAI carries out activities to determine the actual infringer.

Here it should be noted that the law clearly provides for the mandatory suspension of execution of a decree to establish the person who committed the violation. Moreover, article in such a way that if the offender traffic police will not find it won't be a problem owner of the vehicle. Before the establishment of that person to execute the decree is also impossible.

Here follows one of the main possible ways to protect their rights by the owner of the vehicle. If this car manage multiple entities (for example, relatives written in the certificate of incorporation, or just acquaintances or employees on the basis of a power of attorney or a temporary registration card), to the authority of the police, did a "chain letter" is sent to the response letter that follows: I have the car at the time the violation is not operated (if the owner was outside the region of residence, or even abroad, you need to specify, and attach copies of relevant documents, such as tickets, photocopy of passport with visas and stamp of the border, etc.) have the right to control such person (entered in the registration certificate or temporary registration card or by proxy - in this case, it is desirable to specify when and in whose name the power of attorney granted to make a copy of it or at least to indicate what the notary it was formed). To make such a statement should, of course, by registered letter with advice of delivery. In this case, the execution of the judgment is suspended, to survey all potential violators of the traffic police. However, it is not clear how exactly this will happen.

By the way, there is an opportunity for confident owners, studying the photo of "chain letters" and find that it is not obvious who is behind the wheel of a car and how many people in the salon at all to say at the time of the alleged violation I was not driving, he passed control to the friend by the name of, say, Sasha, don't know his name, driver's license he had seen, the policy of liability insurance, if he has the right to control all means of transportation, and pass control to it in his presence, I was entitled on the basis of p. 2.2 SDA. Possible reason to explain: he was drunk, or just felt bad, and asked to drive the car... Upon receipt of such application, the traffic police also certainly required (because the wording of Art. 14-1 of the administrative code simply does not give another chance) to suspend the execution of the order and begin the search of the unknown "Sasha" to its attraction to administrative responsibility. Think to look for him they will be long, rather expires imposing on him an administrative penalty (which in the case of proceedings in the traffic police is 2 months).

Of course, the same can be done by people who long ago sold under power of attorney" your car: you have to tell, to whom, when he was thus transferred, where he executed a power of attorney (and it is better to enclose the photocopy). Then the reaction of the traffic police should be the same: tracing the direct culprit.

By the way, it should also be noted that if the owner of the vehicle is a legal person, is actually to fulfill the requirements of Art. 14-1 Cao impossible: legal entities are not subject to administrative liability.

Finally, for the owner of the vehicle exists, and the opportunity to appeal such decision to the General procedure. Traffic police do not like to admit it. Meanwhile, senior 288 of the administrative code does not make exceptions to appeal against decisions to those made according to the results of the photograph. Appealed the decision can be either vasectomia the head of the person who made the decision, either in the district or an equivalent court.

What could be the grounds for such appeal? A lot of them, both formal and relevant to the circumstances of the breach and its fixation.

First of all, those decisions that have already come to car owners by mail, have often stated as follows. They specify the data owner of the vehicle, and immediately, without any reference to the fact that the penalty imposed on the owner, in accordance with Art. 14-1 of the administrative code, it simply States that the person was driving a vehicle and made a traffic violations.

This decision should be appealed clearly, as adopted with substantial violation of the procedure and wrong in fact. First, no evidence that the car ran exactly the person, the decision is not contained. Secondly, if it were known who drove the car, then a completely different order of execution of the offence. The driver must be stopped, the decision made on the spot, in case it disagrees with the violation must be made adminprotokol. If this is not done then the decision can only be issued to the owner of the vehicle, in accordance with Art. 14-1 of the administrative code, but then there must be indications that the person driving. Then, as they say, one of the two.

In addition, senior 14-1 of the administrative code clearly says that this fixation and "correspondence" orders against the owner of the vehicle is possible, if the violation is committed by means of operating in automatic mode. In other words, without human intervention. If, as is often the case now, the survey was carried out using an instrument called a "Reticle" (or even a regular camera) by the inspector - this order will not comply with the law. You do not need to think that the shooting automatically cannot be used as evidence. You can, but only as an additional, as an Annex to the Protocol, and, obviously, in cases where the driver is contesting the violation. But stop and issue a violation in this case on the spot.

And it is not a coincidence. After all, the task of traffic not only fixing problems, and in the first place - prevention, provision of traffic safety. At least from this point of view, the violation is more profitable to stop. However, traffic policemen this is often forgotten, the impression that they see the goal of their work, otherwise...

You must remember this. To ensure that the decision was lawful, it must be specified the details of the device, which recorded the violation. If this tool measurement equipment one should be aware of the details of the documents for admission type measuring equipment for use in Ukraine, as well as calibration of the specific instance of the device. This is the direct requirements of the law of Ukraine "On Metrology and metrological activity" measurements, the results of which are used as evidence or held by order of the court, law enforcement.

But that's not all. When the resolution of the photo, provided by subordinates, makes the head of any of the traffic police Department, need to be known exactly, exactly who spent the photographic images. Why? Because according to p. 13.2 Instructions for the activities of units of traffic police traffic police of Ukraine (approved by order of Ministry of 13.11.2006 N 1111), to the use of special tools open to employees, who studied the manuals for the devices and passed tests according to the rules of their use. Therefore, the regulation should be reflected, who used the device, if its use was not fully automatic. (However, in this case, as mentioned above, do not make the decision in accordance with Art. 14-1 of the administrative code. But to use as an additional ground of appeal is possible and these circumstances.)

By the way, it is necessary to mention another point. Quite often attached to the resolutions of the photo shows that the survey was carried out from a parked car, and often not even official and private, owned by the very policeman. Now, according to the same Statement, this is invalid. According to p. 12.2 Instructions, supervision of traffic can be either open (when walking patrols or special purpose vehicles with the appropriate color and signals), secretly (by service vehicles without statocracy) is in motion, or mixed. That is Parking the car without statocracy to commit the violations are not provided. This car can only be used in motion. And must be official, not private.

Moreover. P. 12.3 Statement provides an exclusive list of tactical ways to use means of transport: the movement in the transport stream, stopping patrol vehicle in a dangerous accident rate locations, and stop patrol car in its best visibility of the movement with Hiking staff moving on the road. It is easy to see that the favorite method of placement of vehicle "in ambush" is not here. But now we are not about that.

It turns out that to carry the service on neutralinos the vehicle, i.e. on the car without statocracy and signals, generally only in motion! Consequently, any attempt fixing of a parked vehicle without statocracy, especially private, will be illegal. And all these circumstances can be reflected by the driver in the complaint.

Note that most often using the same instruments "Vizir" fixed speed. These cases apply all the rules that have already been discussed in articles on my website, regarding protection under the charges of speeding. Also note that "the Sight", as well as other equipment, may give the speed of the other vehicle, moving close. Moreover, that has an adjustment field of view: it can be specially narrowed at the use of the device so it does not hit another vehicle. This is the instruction manual for this device.) Yes and digital photo - from the point of view of evidence, questionable thing, because they can be mounted on the computer, for example, may change the value of speed.

All these arguments should be specified in the complaint in the case. It should be noted that senior 288 Cao in appeals against decisions of the court requires to be guided by the General principles of the Code of administrative procedure. (Although the code does not apply to cases concerning the imposition of administrative penalties. Here is our cachestvo development of draft laws...) And h 2 tbsp. 71 CAS just establishes that when appealing a citizen of the actions of public authorities, these latter must prove the legality of their actions. This and you want to use and refer to it in the complaint, and in any case not to think that the "chain letter" of the traffic police is tantamount not subject to appeal the verdict.

(C) Vadim Volodarsky, 2008.