You still have to pay – Newspaper Kommersant No. 234 (7435) dated 12/16/2022

Companies that have entrusted their employees with the management of official vehicles do not have the right to “rewrite” traffic police fines for them. The Constitutional Court (CC) came to this conclusion, checking the request of the Yekaterinburg court regarding the “uncertainty” of one of the articles of the Code of Administrative Offenses, which allows exempting car owners from liability if there is evidence that “another person” was driving. The use of a vehicle by an employee is identical to its use by the employer, the Constitutional Court pointed out in its decision.

The decision of the Constitutional Court, published yesterday, concerns a case, one of the parties to which is a structural unit of Uralsib Bank. On May 27, 2022, the financial institution received a fine from the traffic police of the Sverdlovsk Region in the amount of 5 thousand rubles. for the repeated passage of a Lada Granta bank owned by a traffic light prohibition sign (part 3 of article 12.12 of the Code of Administrative Offenses). The owner of the car appealed to the Oktyabrsky District Court of Yekaterinburg with a complaint in which he demanded that the penalty order be canceled and the proceedings be terminated. At the time of the violation, it was said in the appeal to the court, a staff member of the bank, working under an employment contract, was driving. The complaint was also accompanied by an internal order to transfer control of the machine due to “need to know”. The bank referred to Part 2 of Art. 2.6.1 of the Code of Administrative Offenses, according to which the owner (owner) of the vehicle is released from liability if it is proved that at the time of the violation the car was in the possession of “another person”. This is a fairly common practice among companies with a large fleet of cars or trucks: a fine for a legal entity is canceled and “rewritten” to a specific driver.

The Oktyabrsky District Court, however, questioned the legitimacy of such a practice, seeing in the content of Art. 2.6.1 of the Code of Administrative Offenses “uncertainty”. The mechanism of exemption from liability, the court suggested, does not apply to cases when the car is driven by a driver who has an employment contract with a legal entity that owns the car and performs his official duties. In this case, it is the employer who should be held responsible for the possible risks and “improper control” over the actions of the employee, who in fact transferred the right to own the car. In connection with this conclusion, the proceedings on the case were suspended, and a complaint was sent to the Constitutional Court to verify the constitutionality of the norm.

The CC, having considered it, drew attention to the fact that earlier, in 2019, it had already considered a similar case on the responsibility of companies owning trucks for compliance with traffic rules by their drivers, but certain parts of Art. 12.21.1 of the Code of Administrative Offenses “Violation of the rules for the movement of a heavy and large vehicle.” Then the court explained: when a hired driver is driving a service truck on the basis of an employment contract with the owner (owner), “possession rights in relation to the vehicle” do not pass to him. This position is based on labor law: if the driver performs “a labor function in the interests, under the direction and control of the employer”, the employee’s use of the vehicle is “identical to the employer’s use of it.” The driver in this case is not the owner of the car. A similar approach applies to other violations provided for by the Code of Administrative Offenses when they are recorded by automatic cameras, the Constitutional Court pointed out in a resolution published yesterday.

“The nature of labor relations, including the employer’s powers to ensure labor discipline, as well as the employer’s ability, as the owner of the vehicle, to decide on the procedure for using it, allows him to influence the employee who violated traffic rules and minimize the risk of their subsequent commission,” the COP believes. Part 2 Art. 2.6.1, according to the court, does not contain any uncertainty, excludes any other interpretation and does not contradict the Constitution.

“Now an employer who owns a vehicle will not be able to avoid a fine if a violation is detected while an employee of the organization is driving it with the help of a camera,” Sergey Radko, a lawyer for the Freedom of Choice movement, explained to Kommersant. violations the car was in the possession of another person will not work. The organization will still be the owner of such a vehicle, since it transferred it to its employee to carry out his labor duties.

Note that the punishment for legal entities for a number of violations can be seriously different from the sanctions for citizens. For example, according to Art. 8.25 of the Code of Administrative Offenses of Moscow, for parking a car on a lawn, a legal entity is obliged to pay a fine of 300 thousand rubles, an individual – 5 thousand rubles.

Ivan Buranov