The traffic police fine will be compared with the Constitution

The Kostroma Regional Court requested the position of the Constitutional Court on whether it is possible to cancel the fines paid by the violator, but not yet in force, referring to the law mitigating liability. The reason for the appeal was the case around the abolition of a fine of 100 thousand rubles. to the owner of the truck one year after its payment. The traffic police considered the decision to annul the sanction illegal. The dispute that arose became the reason for the highest judicial body to make a judgment on the correctness of the application of the relevant norms of the Code of Administrative Offenses.

The request of the Kostroma Regional Court received by the Constitutional Court concerns the case of the cargo company Avtoprofi (Tatarstan). On November 29, 2021, a road train owned by the company passed a weight and dimensional control point, which automatically set the truck’s permissible weight to be exceeded by 5.96% (44.62 tons with an allowable 40 tons). On December 24 of the same year, the traffic police fined the company for 100 thousand rubles. according to part 1 of Art. 12.21.1 of the Code of Administrative Offenses. On December 30, the fine was paid with a 50% discount provided for promptness.

Six months later, in June 2022, amendments to the Code of Administrative Offenses came into force, abolishing the penalty for exceeding the mass of a truck by less than 10% (previously, the threshold was 2%). The State Duma adopted this law to reduce the burden on carriers amid sanctions. Lawyers of Avtoprofi appealed to the Dimitrovsky District Court of Kostroma, where they first restored the appeal period (proving a mistake in the work of the post office a year ago – the “letter of happiness” was stored in the department for less than seven days). At the same court session, the carrier also asked to annul the penalty order, referring to the law that abolished liability (this is allowed by Part 1, Clause 5, Article 24.5 of the Code of Administrative Offenses). And although a year has passed since the payment, the court canceled the fine. The traffic police, in response, turned to the Kostroma Regional Court, referring to another norm – Part 2 of Art. 1.7 of the Code of Administrative Offenses. It says that the law mitigating the responsibility of the violator has retroactive effect only if at the time of its entry into force the decision had not yet been executed (that is, not paid).

In March, the Kostroma Regional Court suspended the consideration of the case and sent a request to the Constitutional Court. Judicial practice contains several alternative interpretations of Art. 1.7 of the Code of Administrative Offenses, the request says (“Kommersant has read the text”), this contradicts the principle of legal certainty enshrined in the Constitution.

From a literal reading of Part 2 of Art. 1.7 of the Code of Administrative Offenses, it is said in the appeal of the regional court, it really follows that if the decision has not entered into force, but has already been executed, the law has no retroactive effect. Back in 2013, the Supreme Court of the Russian Federation pointed out in a resolution of the plenum that this should be taken into account when considering complaints. However, the Constitution says that guilt is established only by a resolution that has entered into force, the Kostroma Regional Court drew attention. In addition, back in 2017, the Constitutional Court, considering the case of one of the motorists, came to the conclusion that the fact that the fine was paid before it came into force (a common case for those using a discount – today 90% of traffic police fines are paid at a discount) does not mean that the driver recognized guilt and cannot appeal against the decision. In addition, the period during which a citizen is considered punished (during this time, increased fines for repeated offenses are applied) starts from the date the decision comes into force, and not from the date of payment, the Constitutional Court indicated in 2020. The Kostroma Regional Court asks the Constitutional Court to investigate and establish whether there is a contradiction between Art. 1.7 of the Code of Administrative Offenses and the Basic Law.

Timofeev, Gusev & Partners, partner in the practice of criminal law protection of business and dispute resolution, Anton Gusev expects that the Constitutional Court will clarify the constitutional and legal meaning of Part 2 of Art. 1.7 of the Code of Administrative Offenses of the Russian Federation. The lawyer of the Freedom of Choice movement Serhiy Radko calls the topic of consideration “quite interesting”: “The Constitutional Court must unambiguously speak out on the application of the law mitigating liability to the person who executed the decision to punish.”

Art. 1.7 of the Code of Administrative Offenses globally does not need clarification, there is some gap that can be closed, says lawyer, ONF expert Katerina Solovyova. “After all, for example, the fact that a punishment is executed by paying a fine at a discount does not deprive a person of the right to appeal, and if the punishment is canceled, the money is returned,” she recalls. “So why exactly the same execution should restrict the application of the law that cancels the punishment?” Katerina Solovieva notes that courts of general jurisdiction have recently begun to more often shift their duties on interpreting the Code of Administrative Offenses to higher-level courts, referring to various “legal uncertainties”: “It is a pity that the court today is bombarded with requests due to unwillingness or inability to apply administrative law “. In fact, the real reason that served as the reason for the request to the Constitutional Court, the expert believes, is the unwillingness to return the fine already paid by the company.

Ivan Buranov