Cases of an accident are one of the most common in the 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 injured, any accident could be the cause of the occurrence of any of these categories. However, when the courts consider these cases (as well as when investigating criminal cases by pre-trial investigation bodies), the same problems arise, characteristic 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 overwhelming 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 are obvious, and the main task is to identify the person guilty and obtain evidence of the commission of the crime by that 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 legal relations 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 unknown, our procedural rules governing the consideration of various categories of cases prove to be completely unsuited, which in practice causes numerous conflicts in cases when The guilt by the participants in 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 "shallow" 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 on 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 CCP, there is no definition of the procedure for demanding data from certain organizations (for example, about 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 the accident is not regulated, as a result, the traffic police officers in a number of cases it is conducted very superficially, the inspection report 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-motor, transport-investigative, etc. Although Article 251 of the Code of Administrative Offenses includes an expert opinion in the list of evidence, however, the Administrative Code does not clarify who exactly and how this 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 an 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 there are no exceptions to these terms.

The result is a depressing picture. Officers GAI by law can only draw up a record of the alleged violator. 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 by law.) The administrative protocols are usually drawn up at the scene by traffic policemen, and Not all of them have the necessary qualifications to identify the perpetrator almost "by sight", without an appropriate investigation, and in some cases this is not possible in principle. In turn, the judge considering this case is far from 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) to assess 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.

Little of. If the judge determines that the traffic police officers have incorrectly determined the culprit of the accident, he can close the case against the one against whom the administrative protocol was drawn up, for lack of the offense, but is practically deprived of the opportunity to take measures to bring to justice the real culprit. Thus, if due to the insufficient qualification of traffic police officers, a person who is guilty of an accident has not drawn up a report directly at the site of the violation, then such a person is likely to avoid administrative responsibility altogether. The judge simply does not give corresponding powers to the Administrative Code, and the terms for imposing administrative orders for the time of consideration of the case and possible return to the traffic police bodies, as a rule, are already expiring. As a result, it turns out that the culprit is not determined procedurally, and the conclusion of the court as to who is guilty must be "caught" from the text of the resolution, sometimes indirectly. And the situation is aggravated also by the absence of the procedure for appealing against decisions on administrative offenses (unfortunately, the procedure provided for in Article 294 of the Code of Administrative Offenses does not completely replace it).

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 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 affairs 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, according to Questions, whether there were any actions and whether they were committed by a specific person.

In principle, the logic is understandable. If the culprit is identified during the investigation of the administrative offense, it would not make sense, it would seem, to delve into these issues repeatedly 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 about an accident differently identified the guilt. However, there are two circumstances that allow you to look at it 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 this 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 (sanction st.124 CoAP). 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 police officers, 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 may be obliged 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 possibility 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 offenses. And now 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 on road accidents. 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 in 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). Participants of the road accident are not charged for the whole of the investigation, 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 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 to be 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 in 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 when assigning examinations, to file motions in the case, etc. Then one of the participants in the accident is charged, immediately after that, the results of the examinations that have already been carried out, with the rest of the materials of the case should be familiarized, and the case goes to court. If the newly accused defendant submits an application for any investigative actions, searching for new evidence, appointing new examinations, it usually declines, 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.

In cases of administrative violations, there is little use now. How to translate the proceedings according to the protocol on the administrative violation, drawn up on the spot, often without any evidence, into the plane of a less truncated process? There is such a way. The actions of police officers on the execution of accidents, 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 brought to court and the administrative material itself is examined. If an administrative action is filed, then the person brought to administrative responsibility may file an application to postpone the consideration of the case to a different date, in this case - before the administrative case. The fact is that Article 268 of the Code of Administrative Offenses is formulated in such a way that, in the absence of a person being brought to justice, the case of an administrative violation can only be considered 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 examined on an administrative claim, first, 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 police, are found to be illegal and invalid, 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. Submission 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 the administrative violation (and not violating part 4 of Article 61 of the Civil Procedure Code) regarding the guilt of this driver, ask for an expert examination or conduct procedural actions of a different nature with the aim of Proof of guilt also of another participant in the accident, emphasizing the possible decrease in the amount of liability 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, he can justify the claim with other material damage (up to the lost profit) or moral. An exception is an accident involving 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 specificity 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 testimony 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, this concerns the process of administrative offenses, which needs to be completely revised: the introduction of an administrative inquiry or investigation institute, 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 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 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 imposition of the investigator's duty to indict a person for whom a crime has been obtained within a certain time after receiving the data and similarly introducing a duty Recognize as injured a person who is harmed by a crime within a certain period of time from the receipt of such data.

All this will make it possible to largely avoid judicial mistakes and a long process of correcting them, which often requires considerable funds for legal costs, which are more frequent in cases of road accidents than in most other categories of cases.