PROCEDURAL STANDARDS AND THE SPECIFICITY OF THE CASES ABOUT THE ACCIDENT.
Cases of an accident are one of the most common in the judicial practice. It deals with criminal, civil, and administrative offenses. Depending on the consequences of the accident and the position of the participants and injured, any accident could be the cause of the occurrence of any of these categories. However, when the courts consider these cases (and also when investigating criminal cases by the bodies of pre-trial investigation), the same problems arise, typical for this category of cases and almost never arising in cases of other categories.
How is this explained? A characteristic feature of many cases of road accidents, which is extremely rare in other categories: among other things, they have to be identified, and who of the participants of the incident was his culprit. For the vast majority of other cases, the guilty and injured parties are evident. Take for example the widespread criminal cases of apartment theft, where the guilty and injured party is obvious, and the main task is to identify the person guilty and obtain evidence of the commission of the crime by this person. Approximately the same situation in cases of compensation for damage caused by flooding the apartment. And, naturally, there are many categories of civil cases where the concept of guilt is not used at all (for example, hereditary and many other property disputes), where the court needs to understand only the essence of the legal relationship between the parties. The same situation also exists in the set of categories of cases on administrative offenses.
So, to this particularity of cases of accidents, according to which, as a rule, the composition of the participants of the incident is known, but the culprit is not known, our procedural norms governing the consideration of various categories of cases prove to be completely unsuitable, which in practice causes numerous conflicts in cases when guilt by the participants of the road accident is disputed.
The most serious situation in this respect, of course, is in cases of administrative offenses. This is explained, first of all, by the truncation of the very process of considering such cases in accordance with the Code of Administrative Offenses of Ukraine. The main problem here is that the Administrative Code does not provide for any procedure of administrative inquiry or investigation. Art.254 of the Code of Administrative Offenses provides only the preparation of a protocol on an administrative offense, art. 255 - the direction of the protocol to the body or official who is to consider the case. Finally, st.276-282 regulate the consideration of the case by this official or body (in accordance with Article 124 of the Code of Administrative Offenses, this is a judge of district (city) courts). More than any stages of production in the case of the law in principle does not provide.
It is difficult to say why the legislator thus approached the problem. Perhaps because the cases of administrative offenses were considered so "petty" that it was considered inexpedient to take them much time and attention of the relevant officials. Well, this can be understood when it comes to cases with indisputable guilt. But it turned out that in cases when this moment is unquestionable, the Administrative Code simply does not give either the police or the court sufficient procedural tools to establish the truth in the case. In fact, the law does not define the process of collecting evidence in the case. How exactly should the witnesses be interviewed, and even who should do this, the traffic police authorities or the court? How to install them, if their data are unknown (and, again, who should do this)? Nothing of this Code does not regulate in details. Unlike the Criminal Procedure Code, the procedure for demanding data from certain organizations (for example, about weather conditions at the time of road accidents, the mode of operation of traffic lights and many others that are necessary to establish a true picture of the incident) is not defined. Even the process of inspecting the scene of the accident is not regulated, as a result, the traffic police officers in a number of cases it is conducted very superficially, the inspection protocol is not drawn up, and only the scheme of the scene is compiled, which does not always give a complete picture.
In a number of cases, it is impossible to answer questions about the culpability of an accident without conducting forensic examinations - forensic, avtotransport, transport and investigative, etc. Although Article 251 of the Code of Administrative Offenses includes an expert opinion in the list of evidence, the Code of Administrative Offenses does not clarify who exactly and how examination to appoint, what procedural document it is made out, what are the rights and duties of road accident participants and experts, and many other points. As a result of expertise in this category of cases are very rarely appointed. At the same time, the situation is aggravated by the short terms of imposing the administrative penalty provided for in Article 38 of the Code of Administrative Offenses: in fact, it is not always possible to collect the necessary evidence in two months, especially if there is a need for expertise in the case. And the law does not provide exceptions to these terms.
The result is a depressing picture. The traffic police officers can by law only draw up a record of the alleged infringer. To conduct any investigation, the law, in fact, does not give them authority. (In this regard, it is necessary to remember Article 19 of the Constitution of Ukraine, which requires officials of government bodies to act only within the limits, in the manner and in the manner expressly provided for by law.) The administrative protocols are usually drawn up at the scene by traffic policemen, and far from all of them have the necessary qualifications to identify the perpetrator almost "by sight", without an appropriate investigation, and in some cases this is impossible in principle. In turn, the judge considering this case is not always inclined to a detailed explanation of the circumstances of the case, and many judges do not have the appropriate training (and not even the drivers themselves) in order to evaluate the specific circumstances of the accident. In addition, the judge is bound by the same period as stipulated in Art. 38 of the Code of Administrative Offenses and there is a choice before him: to establish the details of the case in detail and to risk the impossibility of imposing administrative orders, or to make the court speedy and not always right. As a rule, if there are no circumstances, for example, the active position of the participant in the accident, the examination remains extremely superficial, no examinations are appointed, etc.
And meanwhile, - and here we turn to the situation that has developed in civil cases for damages from road accidents - it is in the case of an administrative violation that the main work is carried out to determine the guilty party. This is due to the fact that in the current edition of the CCP of Ukraine there appeared a very dangerous story for this category of cases in the existing situation. According to part 4 of Article 61 of the CCP, not only the sentence in a criminal case and, in a number of circumstances, the decision on another civil case, as it was before, but also the ruling on the case of an administrative violation is mandatory for the court considering the civil case on questions, whether there were any actions or whether they were committed by a specific person.
In principle, the logic is understandable. If the culprit is identified in the investigation of the case of the administrative offense, it would not make sense, it would seem, to go deep into these issues again when considering a civil case. And the situation should be ruled out when two courts in the case of an administrative violation and a civil case on one accident differently identified the guilt. However, there are two circumstances that allow us to look at this quite differently. The first of them is the same truncation of the process of administrative violations, which does not allow to fully establish the truth on the case, which often leads to errors. The second is ignorance about such specificity of the population. Most drivers believe that in the case of an administrative violation only the issue of a relatively small penalty is solved, in the worst case - the deprivation of the right to drive vehicles for up to six months (the sanction of Article 124 of the Administrative Code). And that if he is sued for compensation, he will be able to prove his case in the civil process. Accordingly, does not take measures in the case of an administrative offense. (By the way, such ignorance is supported and used by a number of traffic policemen, and sometimes even ships, to simplify their work on such cases.) And then in the civil process this can not be done ...
As already mentioned, the worst situation here is the position of the person who did not participate in the accident, but according to the Civil Code, it may be obligated to compensate for the damage (for example, the employer of the hired driver): the person involved in the administrative violation process is not at all, and therefore the process of establishing guilt in the case of an accident can hardly affect. As for the hired employee himself, he is, in fact, not interested in proving his innocence, by virtue of limiting his liability under labor law, in proving his innocence. As a result, the ability of the defendant, who was not a direct participant in an accident, to prove his driver's innocence, is severely limited.
Thus, the said story in the current edition of the CCP of Ukraine would not have had such negative consequences, were it not for the truncation of the process in cases of administrative violations. And at the present time it leads to the extreme complexity of proving the innocence of a participant in an accident in a number of cases.
A variant of this problem exists in criminal cases of an accident. This is connected, again, with the fact that often the guilt of participants in an accident is not obvious at first. In the presence of the consequences stipulated by Article 286 of the Criminal Code of Ukraine, the case is usually initiated on the fact of an accident, and not against a specific person (s). The participants of the road accident during almost the entire investigation are not charged, they also do not recognize them and the victims, often even when the investigator already has evidence, and a firm opinion was formed about the guilt of the road accident participants. The purpose of this is usually twofold. First, the investigator tries to avoid a situation where he does not fit within the time frame established by law: according to Article 120 of the Criminal Procedure Code, these terms are calculated from the date of identification of the person who committed the crime. That is, while this person is formally considered unknown, there is no such danger for the investigator. The second (and, as a rule, no less important) reason is that in this case the participants of the road accident are "kept" in the status of witnesses, as a result of which they can not take measures to protect their interests in the case, and information on the progress of the investigation, on essence, are deprived. For example, they can not raise additional questions to experts in the appointment of examinations, file motions in the case, etc. Then one of the participants of the accident is charged, immediately after that, the results of the examinations already conducted, with the rest of the case materials, should be familiarized and the case submitted to the court. If the newly accused defendant makes a petition for any investigative actions, seeking new evidence, appointing new examinations, it usually rejects the case, and the case quickly goes to court, often so quickly that there is no possibility for a full appeal against the investigator's actions. In combination with the accusatory bias, which often exists in this category of cases (perhaps a little like the other) - the consequences are terrible.
Is it possible to counteract all this? In most cases, yes. But only under condition of an active position of the participant of road accident from the very beginning of manufacture on business.
On cases of administrative violations there is little use now. How to translate the proceedings on the basis, often without any evidence, of the protocol on the administrative violation in the plane of a process that is not so truncated? There is such a way. The actions of police officers on the preparation of an accident, as well as the documents drawn up by them, can be subject to appeal, more precisely, to the court with an administrative suit, according to the Code of Administrative Procedure (CAS) of Ukraine. The evidence instruments according to the CAS are close to those given to the participants in the CCP of Ukraine. At the same time, according to part 2 of Article 71 of the CAS, in cases of unlawfulness of the actions of public authorities, the respondent is responsible, that is, to these very bodies, in our case to the police. In other words, when addressing the court, the participant of the road accident, finally, forces the GAI to really prove his guilt!
However, in this case (part 4, article 72 of the CAS), there is a mandatory for the court ruling on the case of an administrative violation. However, this factor can also be neutralized if one applies to an administrative claim before it is submitted to the court and the administrative material itself is examined. If an administrative action is filed, then the person brought to administrative responsibility can file an application to postpone the consideration of the case to a different date, in this case, to the administrative case. The thing is that Article 268 of the Code of Administrative Offenses is formulated in such a way that, in the absence of a person brought to justice, the case of an administrative violation can be considered only if that person, firstly, is notified of the date and time of consideration, secondly, did not file a petition to postpone the case. Those. if such a petition is filed, the case can not be considered at all, regardless of the reasons and grounds for filing the petition. And by the time the case is under consideration for an administrative claim, firstly, the time for imposing an administrative penalty may expire (especially if an examination was conducted in the case). Secondly, if the administrative protocol and other documents, like the actions of the militia, are found to be illegal and void, then there will be nothing to consider in the case of the administrative offense.
By the way, it is paradoxical that in this way you can virtually avoid administrative liability for almost any violation. The filing of an administrative claim and petition to postpone the consideration of the case of an administrative violation allows, even if the violation is proven, in fact make it impossible to impose administrative deadlines.
In civil cases, the defendant can argue the evidence in regard to the circumstances of the accident in this way: without challenging the decision on the case of an administrative violation (and not violating part 4 of Article 61 of the CCP) regarding the guilt of this driver, requesting an expert examination or other procedural actions with a view to proof of guilt also of another participant in the accident, emphasizing the possible decrease in the amount of responsibility or liability in accordance with the degree of fault in the presence of guilt, as well as another participant in the accident. And in the future, if there is evidence, you can file a complaint against the decision on the case of an administrative violation in accordance with art. 294 of the Administrative Code.
In criminal cases it is desirable to take measures to protect themselves from the initial periods of the investigation. It should be remembered that, although the presentation of the accusation and the recognition of the victims depends on the investigator, in accordance with Article 50 of the Code of Criminal Procedure, the person concerned can itself take the initiative, present a civil claim within the criminal case and acquire the status of a civil plaintiff. Since in most accidents vehicles are damaged, this gives grounds for handling such a claim. If the owner of the car was not a participant in the accident, then he can justify the claim with other material damage (up to the missed profit) or moral. The exception is a traffic accident with pedestrians, where the filing of such a claim is futile (and the investigator may refuse to be recognized as a civil plaintiff) due to the specifics of civil law (liability of the vehicle owner without guilt in the civil law context). In this case, if the driver is not the owner of the damaged vehicle, such a claim can be presented by the owner, formally appearing on the other side of the "barricades", but in fact influencing the course of the investigation in the interests of the driver. Of course, the possibilities of such influence for a civil plaintiff (whoever is recognized as such) are limited to a certain extent. But in another case, he has such an opportunity in general, in fact, no.
It is also always necessary to remember that even a witness of Article 63 of the Constitution of Ukraine allows not to give evidence about yourself or close relatives. In some cases, it is very useful to use it; often evidence against the driver is taken directly from his own testimony.
However, in any case, the reform of procedural legislation has matured. First of all, it concerns the process of administrative offenses, which needs to be completely revised: the institution of an administrative inquiry or investigation, a clear procedure for the completion of a number of procedural actions, and the detailed process of handling cases in courts. Ideally, the true competitiveness of the process must be achieved, the duty of the police to prove the guilt of the person brought to administrative responsibility. By the way, in this case, the problem will be solved in cases of violations of traffic rules, not related to causing any damage, for which drivers often contest their guilt.
In civil cases, it is necessary to prove the circumstances of an accident and the culpability in it, regardless of the results of handling cases of administrative violations.
Reform of the criminal process is a big topic that goes beyond the scope of this article, but one of the necessary measures is the introduction of the investigator's duty to indict a person for whom data on his crime was obtained within a certain time after receiving this data, and in the same manner the introduction of a duty to recognize the injured person as a person who has been harmed by a crime within a certain period from the moment of receiving such data.
All this will make it possible to largely avoid judicial errors and a long process of correcting them, which often requires considerable funds for legal costs, which are more frequent in road traffic accident cases than in most other categories of cases.