Annotation of Farkhad Timoshin, advocate of Pen & Paper attorneys at law, to the article «Legalization of auto video». «Rapsi», February 24, 2016
Legislators are trying to warrant the drivers’ right to use event data recorder records as an evidence of their noninvolvement in the Traffic Code violation. A relevant legislative proposal may have come into effect already by this summer, however, in terms of practice it may lead to new disputes.
Video records have become one of the most common ways to prove violation in terms of the road traffic committed by road-users. It is thank to special cameras of the Road Police tens of thousands of speeding notifications, driving the wrong way and other misdemeanors are being sent.
The Road Police instructions recommend recording to a camera drivers decline from medical examination for intoxication, as well as other illegal actions.
Unseen Rules
Meanwhile, any “out-of-paper” materials in an administrative case are still an open issue. Civil procedure code of the Russian Federation recognizes audio- and video records on electronic or another media to be the evidence: submitting person should just explain when and who did the records, as well as circumstances of the records. Additionally, the procedures of storage and returning of media (disks, memory and flesh cards, etc.) have been governed.
Meanwhile, the Administrative Offences Code of the Russian Federation contains smoother expression: materials of photo - and camera recording, audio- and video recording, data of info bases and data bases, other data storage media “may be” referred to documents (i.e. written evidences).
Legislative proposal, submitted in April 2014 and approved on February 16 of this year, recognizes these materials to be the documents. According to its drafters – a group of the Federal Parliament deputies and some senators, a working rule of Administrative Offences Code of the Russian Federation is liable to prevent video records from being recognized as documents and evidences.
Explanatory note to the proposal states, “Mandatory nature of the requirement does not only resolve uncertainties that may act as a factor of corruption, but also dictates to recognize photo- and camera recording, audio- and video records (including the recording materials made by special automated technical devices equipped with photo- and camera recording functions) to be evidences for the purpose of a proceeding.”
"The movie is over"
Experts ambiguously assess the effects of the amendments.
Farkhad Timoshin, a lawyer of Pen & Paper Company, believes the amendments are of a need and sustains the proposal drafters’ reasons, “Current expression provides a court and even administrative official hearing administrative proceedings with an option to withdraw from accepting video records or other digital materials with no line of reasoning or by virtue of speculative circumstances. Should legislative proposal be adopted, such evidences shall be accepted and adduced, “sewed” to a case. After that, they shall be evaluated, including, may be declined, should they be recognized as invalid or irregular. Should a court have a doubt in authenticity of a submitted record, an expertise may be performed with using budget funds,” the lawyer says.
However, Alexander Khokhlov, an active road-users’ rights protector, a member of coordination board of Interregional Public Organization of Road-Users “Svoboda Vybora” /Freedom of Choice/, considers the problem to be inflatable, and the legislative proposal itself to be a populist one, “The current legislation anyway provides a court to evaluated any evidences in terms of their applicability and validity. Thus, proposed amendments do not mean that a record submitted by a driver and evidencing, according to the driver, his or her innocence will be accepted by a court as compelling evidence aforesaid. While data of the Road Police cameras – special technical devices, have special status and are de-facto automatically recognized as violation evidence. Even assumption of innocence does not work in that case.”
Conclusion of Alexander Khokhlov has been proven by practice. In dozens of cases, the courts declined the reasons of the fined for various Traffic Code violations drivers insisted in invalidity of the video records as the evidences. It is a general rule that recognizes an evidence to be “any actual data on the base whereof administrative violation event presence or absence, a person’s culpability, as well as other circumstances material to the proper adjudgement.”
Moreover, the point at issue was explained by the Supreme Court of Russia already at the end of 2014. Through the code of practice, the Court expressly specified that a judge was not entitled to deny a video record from the event data recorder, later to be evaluated along with other collected case evidences, to be deposited. “Another approach means violation of rights of a person under administrative proceedings, as well as rights of an injured”, the country supreme judicial authority stated.
Space surveillance
Besides event data recorders, records recorded by numerous directed surveillance cameras mounted by either private companies (shops, banks, etc.) or by city or town councils will help to defend the case (either in relation with Traffic Code violation cases or other cases). In terms of the cities, almost every second square meter of the streets and courtyards runs into the lens of one or another camera.
Data of Public Action Data Automation “ERA-GLONASS”, as well as on-board systems installed within the program “Umnoe KASKO” /Smart CNC insurance/ may become a new type of evidences. They record the coordinates, speed and vehicle acceleration in three axes provided that certified equipment shall warrant “non-adjustable recording” of such data, i.e. shall exclude any possibility of data counterfeit.
However, the truth is that such introduction of such innovative technologies is delayed.
Pavel Neptunsky, Saint Petersburg (exclusively for RAPSI)