PROCEDURE NORMS AND SPECIFICITY OF CASES ABOUT ACCIDENTS.
Cases of accidents are one of the most common in judicial practice. It concerns both criminal, and civil, and cases of administrative offenses. Depending on the consequences of the accident and the position of the participants and victims, any accident may be the cause of the occurrence of the case of any of these categories. However, when the courts consider these cases (as well as during the investigation of criminal cases by the pre-trial investigation authorities), the same problems arise, moreover, they are characteristic of this category of cases and almost never arise in other categories of cases.
How is this explained? A characteristic feature of many cases of accidents, which is extremely rare in other categories: among other circumstances, it is necessary to determine them, and which of the participants in the incident was his culprit. In the overwhelming majority of other cases, the guilty and injured parties are obvious. Take, for example, common criminal cases involving burglaries, where the guilty and injured party are obvious, and the main task is to identify the perpetrator and obtain evidence of the crime committed by this person. Approximately the same situation in cases of compensation for damage caused by flooding the apartment. And, of course, 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 legal relations between the parties. The same situation in many categories of cases of administrative offenses.
So, to this particular case of accidents, in which, as a rule, the composition of the participants in the incident is known, but the culprit is unknown, our procedural rules governing the consideration of various categories of cases are completely unsuitable, which in practice causes numerous conflicts in cases where the guilt of the road accident participants is contested.
The most difficult situation in this respect is, of course, in cases of administrative offenses. This is explained, first of all, by the truncation of the process of consideration of such cases in accordance with the Administrative Code of Ukraine. The main problem here is that the Administrative Code does not provide for any administrative inquiry or investigation at all. Article 254 of the Administrative Code provides only for drawing up a protocol on an administrative offense, Article 257 - sending the protocol to an authority or official who is to consider the case. Finally, Articles 276-282 regulate the consideration of a case by this official or body (in relation to Article 124 of the Administrative Code, they are judges of district (city) courts). The law does not provide for any further stages of the proceedings.
It is difficult to say why the legislator thus approached the problem. It may be because the cases on administrative offenses were considered so “minor” that it was considered inexpedient to take them a lot of time and attention of the relevant officials. Well, this can be understood when it comes to cases with undoubted guilt. But it turned out that in cases where this moment is not certain, the Administrative Code simply does not give the police or the court sufficient procedural tools to establish the truth in the case. In fact, the law does not define a process for collecting evidence in a case. How exactly to interview witnesses, and even who should do it - the traffic police or the court? How to install them, if their data is unknown (and, again, who should do this)? Nothing in the CAO does not regulate in detail. Unlike the Code of Criminal Procedure, the procedure for requesting data from certain organizations is not defined (for example, weather conditions at the time of the accident, the mode of operation of traffic lights and many others that are necessary to establish a true picture of the incident). Even the process of inspecting the scene of an incident is not regulated, as a result, the traffic police in some cases, it is carried out very superficially, the inspection report is not drawn up, and only an outline of the scene of an incident is made, which does not always give a complete picture.
In a number of cases, it is impossible to answer questions about guilt in an accident without conducting expert examinations - forensic autotechnical, transport and investigative, etc. Although Article 251 of the CAO includes an expert opinion in the list of evidence, however, the CAO does not clarify who exactly and how examination to appoint, what procedural document it is made out, what are the rights and obligations of the participants of the accident and experts, and many other points. As a result, expertise in this category of cases is appointed extremely rarely. At the same time, the situation is aggravated by the short terms of imposing an administrative penalty, provided for by Article 38 of the Administrative Code: in fact, it is not always possible to gather the necessary evidence in two months, especially if there is a need for expertise in the case. And the law does not provide for exceptions to these deadlines.
The result is a depressing picture. The traffic police according to the law can only draw up a protocol on the alleged offender. Conduct any investigation of 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 state authorities to act only within the limits, in the manner and in the manner expressly provided by law.) Administrative protocols are usually drawn up at the scene of the incident by the personnel who register the accident, far from all of them possess the necessary qualifications to determine the culprit almost “by sight”, without a proper investigation, and in some cases this is impossible in principle. In turn, the judge considering this case is far from always set up to clarify the circumstances of the case in detail, and many judges do not have the appropriate training (and are not even drivers themselves) to assess the specific circumstances of the accident. In addition, the judge is bound by the very period provided for by Article 38 of the Administrative Code, and he has a choice: to establish the circumstances of the case in detail and to risk the impossibility of imposing administrative penalties, or to make a trial soon and not always right. As a rule, if there are no circumstances, for example, an active position of an accident participant, the review remains extremely superficial, no examinations are appointed, and so on.
And meanwhile, - and here we turn to the situation that has developed in civil cases for damages from an accident - it is in the case of an administrative offense that the main work is being carried out to determine the guilty party. This is due to the fact that in the current edition of the Civil Procedural Code of Ukraine there appeared a very dangerous story for this category of cases in the current situation. According to Part 4, Article 61 of the Code of Civil Procedure, not only the verdict in the criminal case and, in some circumstances, the decision in another civil case, as it was before, but also the decision in the case of administrative violation is mandatory for the court considering the civil case. questions about whether any actions took place and whether they were committed by a specific person.
In principle, the logic is clear. If the culprit is identified in the administrative violation case, it would not make sense to delve into these issues again when considering a civil case. And the situation should be excluded when the two courts in the consideration of the case of administrative violation and the civil case of one road accident determined guilt differently. However, there are two circumstances that allow you to look at it completely differently. The first of these is the very truncation of the process in administrative violation cases, which does not allow to fully establish the truth of the case, which often leads to mistakes. The second is the lack of information about such specific features of the population. Most drivers believe that in the case of an administrative violation only the issue of a relatively small fine is resolved, in the worst case - deprivation of the right to drive vehicles for up to six months (sanction of Article 124 of the Administrative Code). And that if he is sued for damages, he will be able to prove his case in civil proceedings. Accordingly, it does not take measures in the framework of an administrative violation case. (By the way, such ignorance is maintained and used by a number of traffic police officers, and sometimes the courts, to simplify their work in such cases.) And then in a civil process this cannot 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 may be obliged to compensate for the damage (for example, the employer of the hired driver): such person is not a participant in the process of administrative offense, and, therefore, the process of establishing guilt in the case of an accident can hardly affect. As for the wage earner himself, by virtue of the limitation of his liability under labor legislation, in fact, he is not interested in proving his innocence. As a result, the possibility of the defendant, who was not a direct participant in the accident, to prove the innocence of his driver, is sharply limited.
Thus, the aforementioned story in the current edition of the Code of Civil Procedure of Ukraine would also not have such negative consequences, if not the truncation of the process on cases of administrative offenses. And now it leads to the extreme difficulty of proving the innocence of a participant in an accident in a number of cases.
His version of this problem exists in criminal cases of accidents. This is due, again, to the fact that often the guilt of the participants in an accident is not obvious at first. In the presence of the consequences provided for by Article 286 of the Criminal Code of Ukraine, the case is usually initiated on the fact of an accident, and not against a particular person (s). The participants of the accident for almost the entire investigation are not charged, they also do not recognize them as victims, often even when the investigator already has evidence, and a firm opinion was formed about the guilt of the participants in the accident. The purpose of this is usually twofold. First, the investigator tries to avoid a situation where he does not fit within the time limits established by the law: according to Article 120 of the Code of Criminal Procedure, these periods are calculated from the day the person who committed the crime was identified. 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 accident are “kept” in the status of witnesses, as a result of which they cannot take measures to protect their interests in the case, as well as information on the progress of the investigation. essentially denied. For example, they cannot raise additional questions to experts when appointing examinations, file motions in a case, etc. Then one of the participants in the accident is charged, immediately after this there is an acquaintance with the results of the examinations already carried out, with the rest of the case materials, and the case is transferred to the court. If the newly accused makes a motion to conduct any investigative actions, search for new evidence, assign new expertise, it is usually rejected, and the case is quickly sent to court, often so quickly that there is no possibility for a full appeal of the actions of the investigator. In combination with the accusatory bias, which often exists in this category of cases (perhaps, little as in any other), the consequences are terrible.
Is it possible to counteract all this? In most cases, yes. But only under the condition of the active position of the accident participant from the very beginning of the proceedings.
In cases of administrative violations there is now a little used path. How to translate the proceedings on the on-site, often without any evidence, protocol on administrative violation to the plane of a not-so-truncated process? There is such a way. The actions of police officers on the registration of an accident, as well as the documents themselves compiled by them may be the subject of an appeal, more precisely, an appeal to the court with an administrative claim, according to the Code of Administrative Procedure (CAS) of Ukraine. The tools of proof according to the CAS are close to those given to participants in the process of the CCP of Ukraine. At the same time, according to part 2 of Article 71 of CAS, in cases of unlawful actions of public authorities rests with the defendant, that is, on these same bodies, in our case, the police. In other words, going to court, a participant in an accident finally forces the traffic police to really prove his guilt!
True, in this case (part 4 of Article 72 of CAS), there is a binding judgment for the court in the case of administrative violation. However, this factor can be neutralized if an administrative claim is filed before the administrative material itself is submitted to the court and considered. If an administrative lawsuit is filed, then the person brought to administrative responsibility may file a petition to postpone the consideration of the case to another date, in this case, before the administrative lawsuit is considered. The fact is that Article 268 of the Administrative Code is formulated in such a way that in the absence of a person held accountable, the administrative violation case can only be considered if this person is first notified of the date and time of the consideration, and, secondly, she did not file a motion to postpone the case. Those. if such a petition is filed - the case cannot be considered at all, regardless of the reasons and grounds for filing the petition. And by the time of consideration of the case on an administrative lawsuit, firstly, the term of imposing an administrative penalty (especially if the case was examined) could have expired. Secondly, if the admin protocol itself and other documents, as well as the actions of the police, are found to be illegal and invalid, there will be nothing for the court in the administrative violation case to consider.
By the way, it is paradoxical that in this way one can in fact avoid administrative liability for practically any violation. The filing of an administrative claim and a motion to postpone the administrative violation case, even if the violation has been proven, makes it practically impossible to impose administrative penalties on the dates.
In civil cases, the defendant can argue in part of the circumstances of the accident in the following way: without disputing the rulings in the administrative violation case (and not violating part 4 of Article 61 of the Code of Civil Procedure) regarding the guilt of the driver, ask for an expert examination or other procedural actions to proving guilt also of another participant in the accident, focusing on a possible reduction in the amount of liability or liability in accordance with the degree of guilt in the presence of guilt of another participant in the accident. And in the future, if there is evidence, you can file a complaint against the decision in the case of administrative violation in accordance with Article 294 of the Administrative Code.
In criminal cases, it is desirable to take measures for their protection from the initial periods of the investigation. It must be remembered here that, although the charge and the recognition of the victim depend on the investigator, in accordance with Article 50 of the Code of Criminal Procedure, the person concerned can take the initiative, file a civil suit in a criminal case and acquire the status of a civil plaintiff. Since in most accidents there are damaged vehicles, this gives grounds for such a claim. If the owner of the car was not a party to the accident, he can substantiate the claim with other material damage (up to a loss of profit) or moral. The exception is an accident with pedestrians, where the presentation of such a claim is unpromising (and the investigator may refuse to be recognized as a civil plaintiff) due to the specifics of civil law (the responsibility of the vehicle owner without fault under civil law). In this case, if the driver does not own the damaged vehicle, the owner may bring such a claim, formally finding himself on the other side of the “barricades”, but actually 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 to a certain extent limited. But in another case, he has no such possibility at all, in fact, no.
You should also always remember that even a witness to Article 63 of the Constitution of Ukraine allows you not to testify about yourself or close relatives. In some cases, it is very useful to use it, because often evidence against the driver is taken directly from his own testimony.
However, in any case, the reform of procedural legislation is overdue. First of all, it concerns the process of cases on administrative offenses, which needs a complete review: the introduction of the institution of administrative inquiry or investigation, a clear procedure for carrying out a number of legal proceedings, and a detailed process for the consideration of cases in courts. Ideally, the true competitiveness of the process should 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 also be resolved in cases of traffic violations, not related to causing any damage, for which drivers often dispute their culpability.
In civil cases, it is necessary to prove the circumstances of the accident and the guilt in it, regardless of the results of the consideration of cases of administrative violations.
Criminal trial reform is a big topic beyond the scope of this article, but one of the necessary measures is the introduction of the duty of the investigator to charge the person in respect of whom information on the commission of a crime has been received, within a certain period of time after receiving these data, and similarly introducing the duty to recognize as a victim a person who has suffered damage as a crime within a certain period of time after receiving such data.
All this will largely avoid judicial errors and a lengthy, often demanding considerable funds for legal costs, the process of their correction, which are more common in cases of accidents than in most other categories of cases.