The case of the tractor driver reached the Constitutional Court – Newspaper Kommersant No. 53 (7498) dated 03/29/2023

The norms of the Code of Administrative Offenses, which allow punishing an employer for allowing drivers without a license to drive, do not contradict the Constitution. This conclusion was reached by the Constitutional Court (CC), which was approached by the road company, which was trying to challenge the fine of the traffic police. The road workers argued that they were prevented from checking the validity of the employee’s driver’s license by the legislation on personal data. The Constitutional Court actually recommended that the State Duma amend the Code of Administrative Offenses by specifying the obligations of companies to verify the identity of hired personnel.

The Constitutional Court examined the incident in Zelenograd on March 10, 2020, when the traffic police stopped a tractor driven by Valentin Kargin, who was deprived of his license, for inspection. Since he worked as a driver in the state budgetary institution (GBU) “Highways” of Zelenograd, the traffic police fined the organization for allowing a driver to drive a tractor without documents (under Article 12.32 of the Code of Administrative Offenses). Lawyers of the State Budgetary Institution unsuccessfully tried to cancel the fine in the courts, after which they turned to the Constitutional Court.

Representatives of the State Budgetary Institution claim that they could not check the rights of Valentin Kargin. He was indeed deprived of his driver’s license in 2014, but the driver’s driver’s license (issued by the technical supervision of the Ministry of Agriculture) remained in the driver’s hands, although he had to hand it over. The driver presented them when applying for a job at the State Budgetary Institution in 2017. The road workers tried to check the document by making a request to the technical supervision, but they refused, referring to the prohibition to disclose the driver’s personal data without his consent. Thus, according to the lawyers of the State Budgetary Institution, one law contradicts another: it is impossible to force the disclosure of the driver’s personal data, it was also impossible not to hire Valentin Kargin on this basis, it was forbidden to allow an employee without a license to drive. The State Budgetary Institution asked the Constitutional Court to recognize Art. 12.32 of the Code of Administrative Offenses, which describes the mechanism for punishing a legal entity for allowing a driver without a driver’s license to drive.

The Constitutional Court, having studied the materials of the case, noted that the courts are not obliged to notify anyone about the deprivation of the rights of drivers, including employers. Since 2022, an open information system of the Ministry of Agriculture has been operating, allowing any organization to check the issued rights of a tractor driver (the traffic police has a similar service) by number, series and date of issue. However, the GBU hired Valentin Kargin before the creation of this base, the court notes. “Prior to the introduction of the system, the automatic imposition on the employer of responsibility for allowing a person to drive a self-propelled machine who presented a certificate of a tractor driver-driver, but at the same time was deprived of a driver’s license, would be in conflict with the Constitution,” the press service of the Constitutional Court explained. But now there are no contradictions – everything is legal. The court nevertheless decided to send the decision made against the road organization for review. In addition, the Constitutional Court notes that the federal legislator has the authority (but is not obliged) to amend the rules, specifying the obligations of legal entities-employers to check the driver’s licenses of their employees.

“We are satisfied with the decision, but we need more time to study it,” commented the decision in the State Budgetary Institution “Automobile Roads ZelAO.” keep the employer to confirm the absence of intent in the admission to driving a vehicle of an employee deprived of the relevant right and concealed this fact. It is necessary to additionally find out how often the information in the specified system is updated, whether there are any failures in its operation.”

“The ordinance hasn’t changed much. Its meaning lies in the fact that in each case, bringing the employer to responsibility for admitting a person deprived of his rights to management should be carried out only in accordance with the principle of the presumption of innocence, – Sergey Radko, lawyer of the Freedom of Choice movement, explained to Kommersant. the fault of this organization was proved, expressed in the failure to take all the necessary due (and most importantly, available) measures to verify that a potential employee has a driver’s license. When considering such cases, it is necessary to find out exactly what specific measures were taken to verify these circumstances and what exactly was not done if the employer had the appropriate opportunity.

Ivan Buranov