Violation of the procedure for consideration of the case of committing an administrative offense by the traffic police officers – allows the driver to appeal a fine imposed on the vehicle’s stop location?

Violation of the proceeding leads to the fact that all fines issued by patrol police officers at the place of stop of the vehicle can be canceled in court. The very fact of considering an administrative offense by police officers at the vehicle stop is already a valid reason for filing an administrative claim to a court.

As everyone knows, the Constitutional Court of Ukraine, by its decision of May 26, 2015, prohibited SMI employees from issuing fines at the place of stopping a car. In adopting this decision, the Criminal Code referred to the fact that the drafting of the protocol and the resolution are two different stages of administrative proceedings, between which there should be an interval. Simultaneous drafting of the protocol, and then the immediate adoption of the resolution, is a violation of the law, the rights of citizens, and therefore such fines can not be considered legal.

However, in the future the Verkhovna Rada of Ukraine amended the wording of Art. 258 KUpAP granted the right to a new patrol policeman not to make protocols for violations of the rules of the road, and immediately to make decisions (fines) at the place of stopping the car. In adopting this decision, people's deputies did not amend other articles of the KUpAP, which led to the inconsistency of the new wording of Art. 258 in relation to other articles of the Code, which regulate the process of consideration of the case. It is these contradictions in the legislation that arose, and is the main way to appeal against imposed fines on the part of drivers. I would also mention the fact that the presence of a violation of the driving license by the driver does not in any way affect the court's decision to cancel the imposed fine in the place of stop t / s ...

The Constitutional Court in particular noted that the phrase "at the place of the commission of the offense" and "at the place of deed" contained in art. 258, 276 of the Code, have a different purpose and different legal content. In particular, the phrase "at the place of deed", used in the provision of Part 1 of Art. 276 of the Code, on which the case of an administrative offense is considered at the place of commission, indicates the location of the authority authorized by law to consider the case of an administrative offense.

The current edition of Art. 258 KUpAP is set forth in the following wording: "The protocol does not arise in the case of the commission of administrative offenses, the consideration of which is within the competence of the National Police. In cases provided for in paragraphs 1 and 2 of this article, the resolution of a case concerning an administrative offense in accordance with the requirements of Art. 283 of this Code.

Consequently, the CCU explained that the phrase "at the place of commission of the offense" and "at the place of commission" have different meanings. The first is the place where the violation was committed, and the second is the place where the patrol police department is located in the area where the violation was committed.

The most important thing is that Art. 258 KUpAP requires patrols to make a decision in accordance with the requirements of Art. 283 KUpAP -: "After considering an administrative offense, the authority (official) makes a ruling on the case". Therefore, in order for a ruling to be given, the police officer should first consider the administrative case (examine evidence, witness statements, the accused's explanations, documents, and the position of the lawyer). The resolution can not be made without consideration, otherwise such a decision will be considered illegal.

In Art. 276 KUpAP states that "the case of an administrative offense is considered at the place of its commission", and the phrase "at the place of detention", according to the decision of the CCU, means "the location of the body authorized by the law to consider the case".

Based on the above, it follows from the conclusion: consideration of the case of violation of the SDA can only take place in the building of the appropriate police patrol unit, and not in the place of the vehicle's stop.

For police officers, a situation has arisen when a police officer can issue a decree in place of a car stop. However, a policeman can not order a resolution without consideration of the case, and the case can be considered by the police officer only in the police department. If the policeman will consider the case at the place of the vehicle's stop or not consider it at all, this automatically becomes the main reason for the cancellation of the imposed fine.

In ed. Attorney Dmitry Godzha