Theory of everything. Ulyanovsk regional court 11.23 h 1 violation of traffic police

Alexander, hello!

Currently, the fine under Part 1 of Art. 11.23 of the Code of Administrative Offenses of the Russian Federation can be issued to both the driver and the owner of the vehicle. Depending on who the protocol was drawn up against, the fine will vary - for a driver 1-3 thousand rubles, for an official (individual entrepreneur in your case) - 5-10 thousand rubles.

Since, as I understand it, you work on the owner’s car, the responsibility for equipping it with a tachograph lies with him, accordingly, the protocol ideally should have been drawn up by the individual entrepreneur.

Article 11.23. Driving a vehicle or putting a vehicle on line for the transportation of goods and (or) passengers without a technical means of control, violation of the work and rest regime by the person driving the vehicle for the transportation of goods and (or) passengers (as amended by Federal Law dated 14.10. 2014 N 307-FZ)
(as amended by Federal Law dated June 14, 2012 N 78-FZ)
1. Driving a vehicle or putting a vehicle on line for the transport of goods and (or) passengers without a technical control device that provides continuous, uncorrected recording of information about the speed and route of the vehicle, about the work and rest schedule of the driver of the vehicle (hereinafter referred to as the tachograph) ), in the event that its installation on a vehicle is provided for by the legislation of the Russian Federation, as well as with a non-working (blocked, modified or faulty) tachograph or with a tachograph that does not meet the established requirements, with the exception of the case of a tachograph breakdown after the vehicle is put on line, as well as in violation of the established rules for using a tachograph (including blocking, adjustment, modification or falsification of information registered by it) - (as amended by Federal Law of October 14, 2014 N 307-FZ)
entails the imposition of an administrative fine on citizens in the amount of one thousand to three thousand rubles; for officials - from five thousand to ten thousand rubles.

is an individual entrepreneur legal entity

An individual entrepreneur is not a legal entity, but for the application of the norms of the Code of Administrative Offenses, an individual entrepreneur is considered not so much as a citizen, but as an official.

Article 2.4. Administrative responsibility of officials
An official is subject to administrative liability if he commits an administrative offense in connection with failure to perform or improper performance of his official duties.
Note.
Persons carrying out entrepreneurial activities without forming a legal entity, who have committed administrative offenses, bear administrative responsibility as officials, unless otherwise provided by this Code.

Text of Article 11.23 of the Code of Administrative Offenses of the Russian Federation in a new edition.

(Name as amended, put into effect on November 15, 2014 by Federal Law of October 14, 2014 N 307-FZ.

1. Driving a vehicle or putting a vehicle on line for the transport of goods and (or) passengers without a technical control device that provides continuous, uncorrected recording of information about the speed and route of the vehicle, about the work and rest schedule of the driver of the vehicle (hereinafter referred to as the tachograph) ), in the event that its installation on a vehicle is provided for by the legislation of the Russian Federation, as well as with a non-working (blocked, modified or faulty) tachograph or with a tachograph that does not meet the established requirements, with the exception of the case of a tachograph breakdown after the vehicle is put on line, as well as in violation of the established rules for using a tachograph (including blocking, adjustment, modification or falsification of information registered by it) -
(Paragraph as amended, put into effect on November 15, 2014 by Federal Law of October 14, 2014 N 307-FZ.

entails the imposition of an administrative fine on citizens in the amount of one thousand to three thousand rubles; for officials - from five thousand to ten thousand rubles.

2. Violation of the established work and rest schedule by a person driving a vehicle for the transportation of goods and (or) passengers -
shall entail the imposition of an administrative fine in the amount of one thousand to three thousand rubles.

The note is additionally included by Federal Law of July 23, 2013 N 193-FZ; no longer in force on November 15, 2014 - Federal Law of October 14, 2014 N 307-FZ.

(Article as amended, put into effect on April 1, 2013 by Federal Law of June 14, 2012 N 78-FZ.

N 195-FZ, Code of Administrative Offenses of the Russian Federation, current edition.

Commentary on Article 11.23 of the Code of Administrative Offenses of the Russian Federation

Comments on the articles of the Code of Administrative Offenses will help you understand the nuances of administrative law.

1. The object of the act in question is the rules for driving a vehicle, the rules for its operation. An integral element of committing an offense in this case is a violation of the rules for using a technical control device that ensures continuous, uncorrected recording of information about the movement of the vehicle, i.e. tachograph.

Currently, the requirements for tachographs are regulated by Order of the Ministry of Transport of the Russian Federation dated February 13, 2013 N 36 "On approval of the requirements for tachographs installed on vehicles, categories and types of vehicles equipped with tachographs, rules for the use, maintenance and control of the operation of tachographs installed on vehicles facilities". However, despite the publication of this regulatory act, the majority of vehicles on the territory of the Russian Federation are not equipped with these means. In this regard, the letter of the Ministry of Internal Affairs of the Russian Federation dated May 22, 2013 N 13/5-134 “On the application of part one of Article 11.23 of the Code of Administrative Offenses of the Russian Federation” remains relevant, according to which, in the opinion of the Prosecutor General’s Office of the Russian Federation, the State Traffic Inspectorate does not have sufficient grounds to charge drivers for driving vehicles to be equipped with tachographs, without such technical means of control. In this connection, the implementation of the provisions of the commented article is possible in relation to almost any vehicle, i.e. contributes to violation of the established procedure for the operation of vehicles and transportation. In this regard, the application of the commented article requires suspension until approval of the procedure for equipping vehicles with tachographs, while simultaneously continuing work to communicate the requirements of the legislation of the Russian Federation in this part to the owners (possessors) of vehicles through the media. The provisions of the commented article are subject to full application on the territory of the Russian Federation starting from April 1, 2014. Before the specified period, their implementation was carried out in accordance with the requirements of international treaties only in relation to international road transport.

The objective side of the act in question includes driving a vehicle in the absence of a control device (tachograph), with a device that is not working or does not meet the established requirements, as well as violation of the rules for using the tachograph, for example, by turning it off, blocking it, changing the device, etc. Thus, the objective side of the act in question lies in the implementation of the actions provided for by the disposition of the article.

The objective side of Part 2 of this article is the violation by the driver of the vehicle of the established work and rest schedule, the monitoring of compliance with which is ensured by the tachograph. Thus, this act is also directly related to the use of this equipment.

2. The subjects of this offense are exclusively individuals. In most cases, citizens who drive a vehicle in violation of established requirements are recognized as subjects. At the same time, the law also provides for the possibility of bringing to administrative liability the official responsible for the installation and verification of the tachograph installed on the vehicle. As a rule, the chief mechanic, garage manager, etc. is considered as the responsible official, i.e. the person in charge of the release of vehicles for travel.

The determining indicator of the subjective side of the act in question is the intentional form of guilt. However, the priority of acts committed intentionally does not exclude the possibility of committing this offense through negligence. A reckless form of guilt is allowed in the case of driving a vehicle with a faulty tachograph or violation of the work and rest schedule by the driver of the vehicle. In most cases, the implementation of the objective side of the act in question is associated with a deliberate violation of the established rules for operating vehicles.

The following commentary to Article 11.23 of the Code of Administrative Offenses of the Russian Federation

If you have questions regarding Art. 11.23 of the Administrative Code, you can get legal advice.

1. The object of the offenses specified in the article is public relations in the field of ensuring traffic safety in transport.

Legal regulation of this area of relations is carried out through the Federal Law of July 24, 1998 N 127-FZ “On state control over the implementation of international road transport and on liability for violation of the procedure for their implementation.”

International road transportation is defined as the transportation by an appropriate vehicle of goods and passengers outside the territory of Russia or to its territory, as well as through the territory of Russia. Intercity road transport is carried out by both domestic and foreign carriers in accordance with Russian and multilateral permits.

2. The objective side of the offense in question consists of committing the following illegal actions: driving a cargo vehicle or bus during international road transport without a control device (tachograph) or with the tachograph turned off, as well as with unfilled tachograms or without maintaining registration sheets reflecting the work schedule and drivers' rest; violation of the established work and rest regime by the driver of a cargo vehicle or bus engaged in international road transport.

In accordance with Art. 8 of the above-mentioned Federal Law, drivers of vehicles are obliged to observe the work and rest regime stipulated by the relevant international treaty of the Russian Federation on the work of the crew of vehicles engaged in international road transport (such agreements were concluded with states neighboring Russia, including those included in the CIS). It is provided that control devices (tachographs) must be installed on vehicles to register the work and rest regime of drivers of vehicles belonging to foreign carriers in the member states of the European Agreement on the Work of Vehicle Crews, as well as to foreign carriers in accordance with another international treaty of the Russian Federation.

In addition, the Ministry of Transport of the Russian Federation approved the Rules for the use of tachographs in road transport in the Russian Federation (Order No. 86 of July 7, 1998). The Regulations on state control over the implementation of international road transport (approved by Decree of the Government of the Russian Federation of October 31, 1998 N 1272) establishes that officials of the bodies of the Rostransinspektsiya (now Rostransnadzor) carry out checks of control devices (tachographs), registration of the work and rest schedule of drivers , filling out tachograms or, in established cases, maintaining daily registration sheets for drivers of the work and rest regime, and compliance by drivers with this regime (subclause “e” of clause 9 of the Rules).

3. The subjects of this offense are drivers of a cargo vehicle or bus engaged in international road transportation.

4. The subjective side of the offense is characterized by guilt in the form of intent or negligence.

Due to the fact that all interested parties are interested in this issue in the context of Part 1 of Art. 11.23 of the Code of the Russian Federation on Administrative Offenses (Administrative Offenses Code of the Russian Federation, Codex), namely: for what and who can be held liable in the field of the use of tachographs and who has the right to hold this accountable, we will try to analyze in detail the circumstances associated with each specific subject of legal relations provided for by this article of the Code of Administrative Offenses of the Russian Federation and other provisions of the Code.

For the sake of objectivity, we present the full edition of this article:

Article 11.23. Driving a vehicle or putting a vehicle on line for the transportation of goods and (or) passengers without a technical means of control, violation of the work and rest regime by the person driving the vehicle for the transportation of goods and (or) passengers

entails the imposition of an administrative fine on citizens in the amount of one thousand to three thousand rubles;

for officials - from five thousand to ten thousand rubles.

Based on the text of the article, it is clear that citizens and officials can be held accountable.

Everything is clear with citizens - these are road users (drivers).

Regarding the definition concepts of officials, who may be brought to administrative liability, the Code provides for the following (Article 2.4):

Managers and other employees of organizations, arbitration managers who have committed administrative offenses in connection with the performance of organizational, administrative or administrative functions;

Persons carrying out entrepreneurial activities without forming a legal entity who have committed administrative offenses, unless otherwise established by this Code.

It is clear that the driver is responsible in his part, and the official in his.

In accordance with the provisions of the article in question of the Code of Administrative Offenses of the Russian Federation, DRIVER bears responsibility for driving a vehicle:

We consider it appropriate to provide commentary on each individual point.

According to point 1.

Federal Law No. 196-FZ of December 10, 1995 “On Road Traffic Safety” (Road Traffic Safety Law, paragraph 9, part 1, article 20) places the responsibility for equipping vehicles with tachographs on the OWNERS (owners) of vehicles. Russian legislation does not contain any provisions regarding the imposition of responsibilities for equipping vehicles with tachographs in relation to other persons.

Hence the conclusion that a citizen (driver) who is not the owner (owner) of a vehicle cannot be held responsible for the circumstances under consideration. At the same time, it should be noted that if these circumstances arose due to the actions of a citizen, for example, the driver removed the tachograph, then there is every reason to hold him accountable in accordance with the specified paragraph.

Anticipating a question related to the circumstances of driving a car by the owner (possessor) of the vehicle, we answer that in this case it is possible to involve another subject - an official. If an authorized official draws up a protocol with the following story: he was driving a car…. , and the driver is indicated as the subject of the offense, it can be argued that in this case the initiation of a case for an administrative offense is illegal. More detailed information can be gleaned from the Resolution of the Supreme Court of the Russian Federation dated September 1, 2017 N 34-AD17-3, a commentary to which was given on our website:

According to point 2.

We will leave the first part of the point under consideration without consideration; everything about it is already clear. As for the second part of the paragraph, a significant circumstance here is the presence of regulatory legal support for the very Rules for the use of a tachograph. Currently, regarding the actions of the driver, there is only one act as these Rules - order of the Ministry of Transport of Russia dated February 13, 2013 No. 36, regarding paragraphs 9-12 of Appendix No. 3 to this order.

According to point 3.

This clause does not apply to a citizen (driver). The arguments presented are similar to those given in relation to paragraph 1.

In accordance with the provisions of Part 1 of Article 11.23 of the Code of Administrative Offenses of the Russian Federation, EXECUTIVE bears responsibility for release on line vehicle for transporting goods and (or) passengers:

1. without a technical control device that provides continuous, uncorrected recording of information about the speed and route of the vehicle, about the work and rest schedule of the vehicle driver (hereinafter referred to as the tachograph), if its installation on the vehicle is provided for by the legislation of the Russian Federation;

2. with a non-working (blocked, modified or faulty) tachograph, except in the case of a breakdown of the tachograph after the vehicle was put on line, as well as in violation of the established rules for using the tachograph (including blocking, adjustment, modification or falsification of the information registered by it)

3. with a tachograph that does not meet the established requirements.

In this case, everything is somewhat more complicated, naturally, for officials of authorized bodies, with the exception of cases when the driver is at the same time the owner (owner) of the vehicle, that is, can be considered as an official.

The difficulty for the authorized bodies is that in the case of bringing officials to justice, there is a significant list of conditions that must be met in accordance with the Code of Administrative Offenses of the Russian Federation (identify the subject of the offense, collect evidence of the guilt of his actions, while observing the procedure for initiation and investigation administrative offense and much more). As a rule, in conditions where the possibly guilty person is located at a considerable distance, it is quite difficult to identify a specific person against whom it is possible to initiate a case of an administrative offense (for example, the vehicle belongs to an organization where there is a person responsible for issuing line of cars, but the responsibilities of this person include monitoring the implementation of the Basic Provisions (appendix to the traffic rules), which regulate the only event in relation to the tachograph - working condition, and there is no question of availability and compliance, in this case this person can no longer act as a subject of an offense). A sufficient number of similar circumstances can be cited. On top of everything else, add the lack of ability of supervisory officials to apply measures to ensure proceedings in cases of administrative offenses (Article 27.13 of the Code of Administrative Offenses of the Russian Federation, in the form of detaining a vehicle). All of the above leads to the fact that with the correct understanding of the responsible persons of the organizations that own vehicles of the procedure for bringing them to justice under Article 11.23 of the Code of Administrative Offenses of the Russian Federation, these cases have no real prospects, and if they are initiated, then there is always a chance of their termination for one reason or another grounds, as an option - with the expiration of the time frame for investigating cases of administrative offenses.

The procedure for initiating and considering cases of administrative offenses provided for in Part 1 of Article 11.23 of the Code of Administrative Offenses of the Russian Federation (essential conditions)

Initiation of cases of administrative offense (Chapter 28 of the Code of Administrative Offenses of the Russian Federation).

As a rule, cases under Article 11.23 of the Code of Administrative Offenses of the Russian Federation are initiated:

1. Traffic police officials with special ranks (traffic police inspectors);

2. Officials of the federal executive body exercising federal state transport supervision, authorized to carry out federal state transport supervision (state transport inspectors).

Through the traffic police the initiation of the case is carried out by drawing up a protocol (Article 28.3).

Through Rostransnadzor initiation of a case, as a rule, is carried out by issuing (drawing) a resolution on the case. If the person held administratively liable does not agree with the decision made, the official is obliged to draw up a protocol, attaching the decision made to it (Article 28.6).

A mandatory condition for drawing up a protocol (making a decision) is that these actions are carried out in the presence of the person against whom the case is being initiated (Article 28.2).

The protocol is drawn up immediately (at the place where the administrative offense is detected) (Article 28.5).

The protocol is sent within 3 days to the person authorized to consider the case (Article 28.8).

A person against whom a case has been initiated (a protocol has been drawn up) has the right to petition for consideration of the case at his place of residence (Article 29.5). Through the traffic police The traffic police inspector does not have the right to consider this petition on the spot; it is considered by an official authorized to consider the case on the merits (these persons are listed below), so there is no guarantee that the material will be sent to the driver’s place of residence. It is essential that the fact of such a request be reflected in the protocol. If the request for consideration of the case at the place of residence is not satisfied, the authorized person must formalize his decision in the form of a ruling on refusal to satisfy the request outlining the essential grounds, which can be appealed in the prescribed manner. Through Rostransnadzor this petition is considered on the spot, since state transport inspectors are persons authorized to consider cases on the merits.

The person against whom the case has been initiated (a protocol drawn up) must be notified of the place and time of consideration of the case by registered mail with return receipt requested, a summons with return receipt requested, by telephone or telegram, by facsimile or using other means of communication and delivery that ensure recording a notice or call and delivering it to the addressee (Article 25.15).

Consideration of cases of administrative offense (Chapter 29 of the Code of Administrative Offenses of the Russian Federation).

As a general rule, cases of administrative offenses are considered at the place where the offense was committed. At the request of a person against whom proceedings are being conducted for an administrative offense, the case may be considered at the place of residence of this person (Article 29.5).

Persons authorized to consider cases of administrative offense under Article 11.23 of the Code of Administrative Offenses of the Russian Federation are:

1. Through the traffic police : the head of the traffic police, his deputy, the head of the center for automated recording of administrative offenses in the field of traffic of the traffic police, his deputy, the commander of a regiment (battalion, company) of the road patrol service, his deputy (Article 23.3);

2. Through Rostransnadzor : the head of the federal executive body exercising federal state transport supervision, his deputies, heads of structural divisions of the federal executive body exercising federal state transport supervision, their deputies, heads of territorial bodies of the federal executive body exercising federal state transport supervision, their deputies, other officials of the federal executive body exercising federal state transport supervision, authorized to carry out federal state transport supervision (state transport inspectors) (Article 23.36).

A case of an administrative offense is considered within 15 days from the moment the official authorized to consider the case receives a protocol on the administrative offense. This period, on the grounds set out in the Code, can be extended by no more than 1 month (Article 29.6).

A case of an administrative offense is considered in the presence of the person against whom the case of an administrative offense is being conducted (Article 25.15, Article 29.7). If there is information about proper notification of the person against whom the case of an administrative offense is being conducted, and in the absence of a petition from the said person to postpone the case, the case may be considered in his absence.

A copy of the decision in the case of an administrative offense is handed over against receipt to the individual, or the legal representative of the individual, or the legal representative of the legal entity in respect of whom it was made, as well as the victim at his request, or is sent to these persons by registered mail within three days from the date of the said decision (Article 29.11).

A decision in a case of an administrative offense provided for in Article 11.23 of the Code of Administrative Offenses of the Russian Federation can be appealed to a higher authority, a higher official, or to the district court at the place of consideration of the case (Article 30.1).

A complaint against a decision in a case of an administrative offense may be filed within ten days from the date of delivery or receipt of a copy of the decision. If the deadline provided for by this article is missed, the specified period, at the request of the person filing the complaint, can be restored by a judge or official authorized to consider the complaint (Article 30.3).

A separate procedure for initiating and considering cases of administrative offense.

As mentioned above, in accordance with Article 11.23 of the Code of Administrative Offenses of the Russian Federation, officials (heads of organizations and individual entrepreneurs who own vehicles, as well as other officials of such organizations, including whose competence by virtue of official powers includes responsibility for the release of vehicles onto the line). As a rule, these persons are absent at the time employees of authorized state bodies identify the relevant offenses provided for by the provisions of Part 1 of Article 11.23 of the Code of Administrative Offenses of the Russian Federation. In such cases, the Code allows for a separate procedure for initiating and considering a case of an administrative offense.

Let’s say that an authorized person of a government body, for some reason that no one understands, really wanted to bring an official to justice under Part 1 of Article 11.23 of the Code of Administrative Offenses of the Russian Federation. The subsequent procedure for initiating, conducting an investigation and considering a case in accordance with the Code is not entirely obvious, but in the totality of norms that are somehow related, one can assume the following course of events, subject to the conditions stipulated by the Code.

1. We will leave the collection and documentation of evidence of the existence of an administrative offense event by an employee without comment; such actions will become an important component only at the final stage - consideration of the case. Before that, the employee still needs to accomplish and comply with a lot of things.

2. An authorized person must establish specific person, in respect of whom a case of administrative offense is being initiated. The most obvious thing is that An employee can obtain this information from the person driving the vehicle, as well as from travel documentation, upon request from the Unified State Register of Legal Entities. At a minimum, in relation to this person, it is necessary to know the full name, official position, and address for sending correspondence. If further circumstances are identified that indicate a different official, the case will be subject to termination; changing the person within the framework of initiating the case is impossible.

3. The authorized person must issue (draw up) a ruling on initiating a case (Article 28.1) in relation to a specific person, sending a copy of the ruling within 24 hours to the person against whom the case was initiated.

4. Within the framework of the initiated case, the subsequent administrative investigation is carried out by the official who issued the decision to initiate the case. An investigation may be conducted by another official of the same body, an appointed official authorized to consider the case. An administrative investigation is carried out at the place where an administrative offense was detected or committed.

It is obvious that the traffic police inspector will not be able to conduct an administrative investigation on his own; today and tomorrow he should suppress other offenses in the field of road safety. None of his leadership will make such sacrifices as temporary removal from his duties. Possible options are an inspector of administrative practice of a unit or a state inspector of technical supervision of the traffic police. In this case, no one will send these employees to conduct an administrative investigation at the location of the owner (possessor) of the vehicle - the alleged place where the offense was committed; the limit on travel expenses in the police department is extremely limited. In this case, it is only permissible to use the provisions of Article 26.9 of the Code of Administrative Offenses of the Russian Federation, which provide for the possibility of sending requests to the relevant territorial bodies or ordering an official of the corresponding territorial body to carry out certain actions provided for by this Code. Under certain circumstances, this is, of course, possible to achieve the goals, but it is quite problematic, at least for the reasons that the authorities to whom the request or instruction is sent have their own affairs and concerns. Again, a protocol on an administrative offense can be drawn up exclusively by the official who conducted the investigation, and exclusively in the presence of the person against whom the case was initiated; this condition, obviously, will be extremely problematic to comply with. The situation is similar with regard to the actions of Rostransnadzor officials.

5. The period for conducting an administrative investigation is one month from the date of initiation of the case. This period in exceptional cases may be extended by no more than one month.

Taking into account the above, following the logic of the law, that the case does not end with an administrative investigation, based on its results, a protocol on an administrative offense must be drawn up on the basis of evidence collected in the prescribed manner, with the subsequent transfer of the case to an authorized person, organizing the immediate consideration of the case in the prescribed manner and making a decision on it, it seems that in modern conditions it is LEGAL to initiate and bring the cases under consideration to their logical conclusion, moreover, within the period established by law, is an impossible and futile matter.

The rights of persons against whom a case of an administrative offense has been initiated (is being considered).

A person against whom proceedings are being conducted for an administrative offense has the right to familiarize himself with all the materials of the case, give explanations, present evidence, file petitions and challenges, use the legal assistance of a defense attorney, as well as other procedural rights in accordance with this Code. A case of an administrative offense under Article 11.23 of the Code of Administrative Offenses of the Russian Federation is considered with the participation of a person against whom proceedings are being conducted for an administrative offense. In the absence of the specified person, the case can be considered if there is evidence of proper notification of the person about the place and time of the consideration of the case and if the person has not received a petition to postpone the consideration of the case or if such a petition is left unsatisfied (Article 25.1).

To provide legal assistance to a person against whom proceedings for an administrative offense are being conducted, a defense attorney may participate in the proceedings for an administrative offense, and to provide legal assistance to a victim, a representative. A lawyer or other person is allowed to participate in proceedings regarding an administrative offense as a defense attorney or representative. The powers of a lawyer are certified by a warrant issued by the relevant legal entity. The powers of another person providing legal assistance are certified by a power of attorney issued in accordance with the law. The defense lawyer and the representative are allowed to participate in the proceedings on the case of an administrative offense from the moment the case of the administrative offense is initiated. The defense lawyer and representative admitted to participate in the proceedings on an administrative offense have the right to familiarize themselves with all the materials of the case, present evidence, file petitions and challenges, participate in the consideration of the case, appeal the application of measures to ensure the proceedings in the case, the decision on the case, and use other procedural rights in accordance with this Code (Article 25.5).

The protection of the rights and legitimate interests of a legal entity in respect of which proceedings are being carried out in a case of an administrative offense, or a legal entity that is a victim, is carried out by its legal representatives. The legal representatives of a legal entity in accordance with this Code are its director, as well as another person recognized in accordance with the law or constituent documents as a body of the legal entity. The powers of the legal representative of a legal entity are confirmed by documents certifying his official position. The case of an administrative offense committed by a legal entity is considered with the participation of its legal representative or defense attorney. In the absence of these persons, the case can be considered if there is evidence of proper notification of persons about the place and time of the consideration of the case and if they have not received a petition to postpone the consideration of the case or if such a petition is left unsatisfied (Article 25.4).

Other significant circumstances that you should know and use in order to protect your rights and interests.

1. Provisions of Article 1.5 of the Code of Administrative Offenses of the Russian Federation:

A person is subject to administrative liability only for those administrative offenses for which his guilt has been established.

A person against whom proceedings are being conducted for an administrative offense is considered innocent until his guilt is proven in the manner prescribed by this Code and established by a decision of the judge, body, or official who examined the case that has entered into legal force.

A person brought to administrative responsibility is not required to prove his innocence. It is appropriate to note that the assistance of the persons against whom the case has been initiated in collecting evidence in the case is not considered by law as mitigating circumstances. The above procedure for the operation of tachographs, regarding the duties of drivers (Appendix No. 3 to the order of the Ministry of Transport of Russia dated February 13, 2013 No. 36), does not provide for any actions in relation to state supervisory authorities, the bodies monitoring the implementation of the procedure in accordance with Appendix No. 5 to According to the order of the Ministry of Transport, transport enterprises and workshops are acting. Therefore, there is no need to rush to provide assistance in establishing the circumstances associated with confirming or refuting the events of an administrative offense provided for in Part 1 of Article 11.23 of the Code of Administrative Offenses of the Russian Federation. These circumstances must be established and proven by authorized persons of state supervisory authorities independently, and naturally, exclusively within the framework of the powers granted to them by law. For example, let a traffic police or Rostransnadzor employee independently prove the tachograph’s compliance/non-compliance with the requirements.

Irremovable doubts about the guilt of a person brought to administrative responsibility are interpreted in favor of this person.

2. Provisions of Article 26.2 of the Code of Administrative Offenses of the Russian Federation:

It is not allowed to use evidence in a case of an administrative offense if the said evidence was obtained in violation of the law.

In this part, the scope of powers of employees of state supervisory authorities, enshrined in the regulatory legal acts of the Russian Federation and the regulatory legal procedure for their implementation, is of significant importance. If in one part or another these employees, in the process of establishing the existence of an administrative offense event, provided for in Part 1 of Article 11.23 of the Code of Administrative Offenses of the Russian Federation, went beyond the scope of the powers granted, or carried out actions not provided for by the Administrative Regulations, it can be argued that within the framework of initiating and During the consideration of the case, inadmissible evidence was used, which may serve as a basis for the cancellation of the decision made in the case.

3. Provisions of Article 4.5 of the Code of Administrative Offenses of the Russian Federation.

A decision in a case of an administrative offense cannot be made after two months.(in a case of an administrative offense considered by a judge - after three months) from the date of commission of the administrative offense.

In case of a continuing administrative offense, the terms provided for in Part 1 of this article begin to be calculated from the date of discovery of the administrative offense.

Excerpt from the text of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2005 No. 5: .... A continuing administrative offense (action or inaction) that is expressed in long-term continuous failure or improper fulfillment of the duties provided for by law. It should be taken into account that such duties may be assigned by another regulatory legal act, as well as a legal act of a non-regulatory nature, for example, a proposal from a prosecutor, an order from a body (official) exercising state supervision (control). Failure to fulfill the obligation provided for by the above-mentioned legal acts by the established deadline indicates that the administrative offense is not ongoing. It must be borne in mind that the day of discovery of a continuing administrative offense is considered the day when the official authorized to draw up a protocol on the administrative offense discovered the fact of its commission.

ULYANOVSK REGIONAL COURT

Judge Chernova N.V. Case No. 7-436/2015

Judge of the Ulyanovsk Regional Court Z.A. Tyutkina,

under secretary Voronkova I.A.,

Having considered in open court the complaint of Poukha S*** V*** against the decision of the judge of the Zheleznodorozhny District Court of the city of Ulyanovsk dated July 28, 2015,

INSTALLED:

By the resolution of the chief state inspector of the department of motor transport and road supervision of the State Traffic Safety Inspectorate for the Ulyanovsk region, V.V. Kulishov. dated June 29, 2015 Poukh S.V. brought to administrative responsibility under Part 1 of Article 11.23 of the Code of Administrative Offenses of the Russian Federation and subjected to administrative punishment in the form of an administrative fine in the amount of 1000 rubles.

Blame Pouhu S.V. It was charged that on June 29, 2015, at 10:40 a.m., he transported cargo (sludge sludge from wastewater treatment plants) along the route: Ulyanovsk - solid waste landfill, landfill contract, using a KAMAZ 5511 vehicle, state registration plate ***, not equipped with a tachograph.

Disagreeing with this resolution, Poukh S.V. appealed it to the Zheleznodorozhny District Court of the city of Ulyanovsk.

Having considered the complaint on the merits, the judge of the Zheleznodorozhny District Court of the city of Ulyanovsk issued a decision by which the resolution of the chief state inspector of the department of motor transport and road supervision of the State Traffic Safety Inspectorate for the Ulyanovsk Region dated June 29, 2015 No. 370059 on the involvement of Poukha S.V. to administrative liability under Part 1 of Article 11.23 of the Code of Administrative Offenses of the Russian Federation was left unchanged.

In a complaint sent to the Ulyanovsk Regional Court, Poukh S.V. does not agree with the resolution and the decision made on the complaint, asks to cancel them, citing his lack of obligation to equip a vehicle intended for public utilities and road maintenance with a tachograph, the year of manufacture of which is 1985 (30 years). In this regard, he believes that there is no corpus delicti of an administrative offense in his actions.

Detailed position of Poukha S.V. set out in the complaint.

Having studied the case materials, having heard the explanations of the representative of the State Traffic Safety Inspectorate for the Ulyanovsk region, I.A. Kozlova, who objected to the arguments of the complaint, I come to the following.

Part 1 of Art. 11.23 of the Code of the Russian Federation on Administrative Offenses of the Russian Federation provides for administrative responsibility for driving a vehicle or releasing a vehicle on the line for the transport of goods and (or) passengers without a technical control device that ensures continuous, uncorrected recording of information about the speed and route of the vehicle, about the mode work and rest of the driver of a vehicle (hereinafter referred to as the tachograph), if its installation on the vehicle is provided for by the legislation of the Russian Federation, as well as with a non-working (blocked, modified or faulty) or with a tachograph that does not meet the established requirements, except in the case of breakdown tachograph after the vehicle is put on line, as well as in violation of the established rules for using the tachograph (including blocking, adjustment, modification or falsification of the information registered by it).

From the case materials it follows that on June 29, 2015 at 10:40 a.m., the driver of the UMUP “ Ulyanovskvodokanal" - Poukh S.V. in the village B*** k*** Ulyanovsk, st. L***, d. *** carried out the transportation of cargo (sludge sludge from treatment plants) along the route: Ulyanovsk - solid waste landfill landfill contract on a KAMAZ 5511 vehicle, state registration plate ***, not equipped with a technical control device that ensures continuous, uncorrected registration of information about the speed and route of the vehicle, about the work and rest schedule of the vehicle driver - tachograph.

The above vehicle belongs to the right of ownership of UMUP " Ulyanovskvodokanal».

Appendix No. 2 “Categories and types of vehicles equipped with tachographs” to the Order of the Ministry of Transport of Russia dated February 13, 2013 No. 36 contains a list of categories and types of vehicles equipped with tachographs, put into circulation and in operation on the territory of the Russian Federation.

These include, inter alia, vehicles intended for the transportation of goods, having a maximum weight of more than 12 tons (category N 3), with the exception of public utility vehicles and road maintenance vehicles, as well as vehicles included in the list of types and categories of wheeled vehicles vehicles that are 30 or more years old, that are not intended for the commercial transport of passengers or cargo, have the original engine, body and frame (if any), have been preserved or restored to original condition, and for which no recycling fee is payable , approved by Decree of the Government of the Russian Federation of August 30, 2012 No. 870 “On the recycling fee for wheeled vehicles.”

Appendix No. 6 of the Technical Regulations of the Customs Union “On the adoption of the technical regulations of the Customs Union “On the safety of wheeled vehicles”, approved by decision of the Customs Union Commission dated December 9, 2011 No. 877 (as amended on May 28, 2015), established additional requirements for specialized and special transport means, which include Requirements for vehicles for public utilities and road maintenance.

Also, by this decision of the Commission, a List of standards was approved, as a result of which, on a voluntary basis, compliance with the requirements of the technical regulations of the Customs Union “On the safety of wheeled vehicles” (TR CU 018/2011) is ensured. These include GOST 31544-2012 “Machines for urban utilities and road maintenance.”

Thus, vehicles used for public utilities and road maintenance must be classified as specialized vehicles in accordance with this GOST y .

The above standard applies to specialized vehicles for urban utilities and road maintenance, which include: machines for sanitary cleaning of cities, for winter cleaning of cities, summer cleaning of cities, machines for year-round use for cleaning cities, utility vehicles of various purposes, snow blowers. The standard establishes special safety requirements determined by the characteristics of the technological equipment of machines.

In accordance with clause 2 of the Technical Regulations of the Customs Union “On the safety of wheeled vehicles”: “specialized vehicle” is a vehicle intended for the transportation of certain types of goods (petroleum products, food liquids, liquefied hydrocarbon gases, food products, etc. );

“special vehicle” is a vehicle designed to perform special functions that require special equipment (truck cranes, fire trucks, vehicles equipped with lifts with working platforms, tow trucks, etc.).

Consequently, by virtue of the above standards, the KAMAZ 5511 vehicle, state registration plate P 122 UH 73, belonging to category N3, cannot be recognized as a specialized or special vehicle for public utilities and road maintenance.

It is equally impossible to classify the specified vehicle as one of the vehicles included in the list of types and categories of wheeled vehicles, 30 or more years have passed since the year of manufacture, which are not intended for commercial transportation of passengers and cargo, have an original engine, body and frame (if any) ), preserved or restored to the original condition, and in respect of which the recycling fee is not paid, approved by Decree of the Government of the Russian Federation of August 30, 2012 No. 870 “On the recycling fee in relation to wheeled vehicles”, since this List approved by the Government Decree RF dated December 26, 2013 No. 1291 (as amended on April 2, 2014) includes:

1. Vehicles of category M, including all-terrain vehicles of category G;

2. Vehicles of category N, including all-terrain vehicles of category G.

Vehicles of category N3 are not included in this list.

Therefore, equipping the disputed vehicle with a tachograph in this case is mandatory.

The fact of committing an administrative offense and the guilt of Poukha S.V. are confirmed by a body of evidence, including: a protocol on an administrative offense, a resolution on the case of an administrative offense, a vehicle registration certificate, and other case materials.

All evidence was assessed in the court decision in accordance with the requirements of Article 26.11 of the Code of the Russian Federation on Administrative Offences.

Actions of Poukha S.V. correctly qualified by Part 1 Article 11.23 Code of the Russian Federation on Administrative Offences.

During the consideration of this case, the district court judge comprehensively, completely, objectively and timely clarified the circumstances of the administrative offense committed.

The procedure for proceedings in a case of an administrative offense and the statute of limitations for bringing to administrative responsibility have not been violated.

There were no violations of the norms of substantive and procedural law entailing the reversal of the court decision taken in the case during the proceedings in this case.

The arguments of the complaint do not contain new circumstances that were not the subject of discussion in the court of first instance or would refute the judge’s conclusions, and do not constitute grounds for canceling the judicial act.

Under such circumstances, there are no grounds for satisfying the complaint.

Guided by Art. Art. 30.3 – 30.9 of the Code of the Russian Federation on Administrative Offenses, judge

The decision of the judge of the Zheleznodorozhny District Court of the city of Ulyanovsk dated July 28, 2015 was left unchanged and the complaint of Poukha S*** V*** was not satisfied.

Judge Z.A. Tyutkina

To check fines from cameras photographing and video recording violations.

To check fines issued by the traffic police inspector.

For free notifications about new fines.

Check fines

We check information about fines,
please wait a few seconds

Transport safety is one of the most important aspects of road traffic. At the legislative level, there are many orders and other documents containing requirements to ensure the safety of the driver, passengers and cargo during transportation. The provisions of these laws are mandatory throughout the Russian Federation and even beyond its borders (if we are talking about international transportation).

In order to record compliance with the requirements of the Legislation, vehicles must be equipped with special monitoring devices - tachographs. They are designed to record information about driving speed, route and the driver’s compliance with work and rest schedules.

All rules for the use of these devices and their maintenance, as well as the category and type of machines on which monitoring equipment must be installed, are recorded in the corresponding order of the Ministry of Transport. However, despite this, many buses and trucks that should be equipped with tachographs are still not equipped with them.

In these situations, as well as in cases where a non-functioning or faulty tachograph is installed on a vehicle, administrative liability is provided for unauthorized modifications of the device or its non-compliance with established requirements. It also applies to persons who violate the rules for using the tachograph: if they block, correct or falsify the registered data.

If any of the above cases occur, fines are imposed on violators:

for individuals directly driving a truck or bus with a faulty tachograph or without it at all for the transport of people and/or goods, – from 1000 to 3000 rubles,
for officials , responsible for installing monitoring equipment and checking its serviceability, – from 5000 to 10000 rubles. Most often, this is a mechanic or garage manager who is responsible for releasing vehicles on the route.

The exception is cases of unexpected failure of the device during a trip.

Also on topic

Markowitz portfolio theory - what, where, when?

Pavel Kochkin - trainings on male and female purpose

Dagestan State Technical University

Belgorod State University Health complex "Nezhegol"

Space as a premonition Mukhin Oleg Petrovich Federation of Cosmonautics biography