The Constitution guarantees everyone the presumption of innocence, but not in this case...
If a citizen gave his car to someone to use and his friend exceeded the speed limit, the owner will receive a fine. This applies specifically to those fines that are recorded by surveillance cameras (Article 14-2 of the Code of Ukraine on Administrative Offenses).
At the same time, the Constitution guarantees the presumption of innocence to everyone. And it is very symbolic that it was on Constitution Day that the Plenum of the Supreme Court was held, at which the agenda included the issue of appealing to the Constitutional Court of Ukraine regarding the constitutionality of such a rule of law, but the judges did not support this appeal.
However, even without the decision of the Plenum, the Constitutional Court already has five complaints on the same issue pending.
The public initiative “Igla” found out whether in this situation there is a violation of the rights of citizens, in particular the presumption of innocence, which is guaranteed by the Constitution.
Why was automatic commit introduced?
In Ukraine, the first means of automatically recording violations of traffic rules on highways appeared during the time of Viktor Yushchenko (Article 14-1 of the Code of Ukraine on Administrative Offences).
Typically, video cameras are installed on emergency sections of the road in order to reduce emergency situations. An additional goal of introducing the system was also to fill the state budget.
But officially, a full-fledged video recording system using cameras was launched on June 1, 2020. This was announced by the then Minister of Internal Affairs Arsen Avakov.
First Deputy Head of the Patrol Police Department of Ukraine Aleksey Biloshitsky notes that over all the years of operation of this automatic video recording system, the budget received more than UAH 2.1 billion.
Biloshitsky notes: “Speed remains one of the most common causes of road accidents with serious consequences. However, over four years of operation of automatic recording cameras, the number of accidents with serious consequences has decreased threefold in areas where they are present.”
The cameras record not only speeding, but also running a red light, driving on the sidewalk, in the oncoming lane or in the bus lane. The system records violations such as exceeding the permitted speed, running a red light, violating the rules of stopping, as well as driving along the public transport lane, on the oncoming lane or sidewalk.
In recent years, many apps have emerged to help drivers slow down when needed, but these apps can be proactive.
The system never figures out who was driving. It only records information about the vehicle in which the administrative offense was committed.
Therefore, the owners of the car are responsible. And this is where questions arise.
How does the constitutionality test work?
The question of the constitutionality of such a norm in the administrative code arose 14 years ago. It was then that the Constitutional Court received the first complaint filed by citizen Artem Baginsky.
“The provisions of part one of Article 14-1 of the Code presuppose the liability of the owner of the vehicle without the need to prove his guilt in committing an offense. Based on the principle of the rule of law, the constitutional presumption of a person’s innocence also applies to accusing him of committing an administrative offense,” the appeal said.
At that time, both the Speaker of Parliament, the Supreme Court of Ukraine, and the Ministry of Internal Affairs expressed their positions regarding the constitutionality of the norm. They even brought in scientists from the Kyiv National University of Internal Affairs and the National Law Academy of Ukraine named after Yaroslav the Wise. And in the end, the Constitutional Court recognized that the norm of the Code of Ukraine on administrative violations, which provided for video recording and fines, was unconstitutional.
The Constitutional Court made this decision because only an individual can bear responsibility for administrative offenses, and the wording that legislators prescribed at that time – “owners (co-owners) of vehicles” – allowed for the liability of a legal entity.
During the time of Petro Poroshenko, the code was supplemented with another norm (Article 14-2 of the Code of Administrative Offenses), which actually duplicated what had already been written. Lawmakers clarified in the new norm that responsibility for a violation lies with the individual who is the owner or head of the legal entity for which the vehicle is registered.
Kiev resident Nikolai K. passed his license last year and received a temporary certificate, which is issued for two years and during this time you can receive no more than 2 administrative offenses. At the same time, Nikolai is the head of one of the capital’s companies and he will soon have to take the exam again, because several dozen cars are registered to his company. “All fines come to the manager, that is, to me. Accordingly, if you recently received a license and are the head of a company that has cars, then you will automatically have more than two violations per year. You have to waste your time taking the exam again. Now I already have more than 70 fines, of which one is actually mine, and 60 fines were received at a time when I didn’t even have a driver’s license. But there is no time to deal with all this, prove your innocence and burden the company’s lawyers with this, so it’s easier to just retake the driving test,” he explains.
Lawyer Anton Kravchenko, who defends the rights of drivers, notes that the current article of the Code, in fact, duplicates a similar provision of the article, which has already been declared unconstitutional: “At one time, along with the amended article, which the Constitutional Court is considering for constitutionality, penalty points were introduced. This was a compromise free administrative penalty, which formally existed until 2020 and then it was cancelled. Each driver was annually offered a number of points that would be “withdrawn” instead of paying an administrative fine as long as the balance remained positive. Now a monetary fine is applied immediately, although a draft on penalty points has again appeared, but even here they do not plan to determine who exactly was driving.”
Kravchenko is convinced that the law cannot ignore the fact who actually managed: “Responsibility must be strictly individual, and it is unacceptable to presume the guilt of the owner of the property as an offender (Articles 61 and 62 of the Constitution). Back in 2010, Parliament was recommended to bring the entire procedure for automated punishment on the roads into line with the Decision. But since 2015, the Code has already mentioned a new norm, which is similar to the one that was declared unconstitutional. For some reason, courts continue to apply it to car owners who disagree with “automatic” fines - although they should have acted differently a long time ago. The Constitution has supreme legal force and rules of direct action. And any court is obliged to directly apply them. And in case of uncertainty whether the law complies with the Constitution, each court must stop the case and appeal through the Supreme Court to the Constitutional Court.”
The technical parameters of the cameras are often insufficient to remotely recognize the driver's face. To fine the violator specifically, you can go for better quality video recording. This, of course, will cost more, but in the explanatory note of the project back in 2015 they noted: “The implementation of the project will not require expenses from the State Budget of Ukraine.”
A member of the profile committee of the Verkhovna Rada, which is also responsible for transport issues, Yulia Klimenko (“Voice”) notes that now it is really impossible to identify the driver, and therefore, in accordance with adopted laws, the owner of the vehicle bears responsibility: “This is a generally accepted world practice. For example, in the United States of America, where the same system is in place, if someone regularly uses your car, you can sign declarations between the owner and driver of the vehicle stating that the driver is responsible for fines. Then all fines that come to the owner are legally redirected to the driver.”
Another part of the changes to Article 14-2 of the Code owes its appearance to the boom in the import of cars from abroad, the so-called “Europlates”.
The legislator additionally provided that if a vehicle is registered outside of Ukraine, the person who imported such a vehicle into the territory of Ukraine will be held administratively liable for offenses in the field of road safety recorded automatically.
Therefore, all these companies involved in importing cars from abroad acted at their own peril and risk, because they could become hostage to “other people’s” fines for a very long time.
But all changes to legislation must comply with the Constitution, which provides for the presumption of innocence, which remains unchanged even during martial law. When it comes to criminal or administrative offenses, the burden of proving that you are the violator rests with the state.
The Code itself states that when imposing a penalty, the nature of the offense committed, the identity of the offender, the degree of his guilt, property status, mitigating and aggravating circumstances are taken into account.
But in a situation with automatic recording of violations, everything works quite the opposite. The above norms do not apply, which creates the possibility of bringing vehicle owners to administrative liability even if these persons have not committed an administrative offense.
This discrepancy in approaches to various categories of administrative offenses creates a demand in society for their revision and changes in the existing system. But when considering the issue at the Plenum of the Supreme Court, Judge Vasily Krat explained his position on why there are no grounds for filing an appeal to the Constitutional Court: “In accordance with Article 3 of the Constitution, human life is the highest social value. And human safety is the highest social value. I saw no basis for appealing the submission, and this issue concerns only enforcement. Where automatic recording cameras operate, there are statistically significantly fewer violations than human life and health are preserved.”
But despite the fact that the judges of the Supreme Court did not support this issue, it has been under consideration in the Constitutional Court since 2020.
All these appeals and complaints were combined by the court into one case, in which the Constitutional Court has already moved to the closed part of the plenary session to make a decision. Therefore, there is a chance that an explanation on this matter will appear in the near future.
In the meantime, car owners must understand what to do when they receive fines.
How to prove that you are not a violator?
Within 20 calendar days from the date of commission of the offense or from the date the resolution in the case of an administrative offense comes into force, you can provide the police with documents confirming the disposal of the vehicle or the fact of illegal use of your own license plates.
Or “personal appearance of the violator” is possible. That is, the driver of the car who was driving it at the time the violation was committed can personally contact the police with a statement admitting his guilt and a receipt for payment of the fine.
It was also possible to enter information about the proper user (a person who legally uses a vehicle) into the Unified State Register of Vehicles. Such a user could be a company employee or a person who rented a car.
This can be done through the Driver’s Electronic Account.
If information about the appropriate user is entered into the register, he will already be held responsible for committing administrative offenses recorded automatically.
