Recognition of illegal actions of the inspector of the battalion of traffic police on drawing up the protocol on an administrative offense

    The Zhitikarinsky district court of the Kostanay region, composed of the presiding judge Korchinskaya L.A., with the secretary of the court session Dusugalieva A.A., with the participation of the applicant R.O.V., the official N.S.T., having considered the complaint of R.O.V. in open court in Russian, using audio and video recordings, date of birth: March 11, 1985, place of residence: Gitikara city, ....., house ..., apartment 36, place of work:  individual entrepreneur, identity document: identity card no. ... dated April 20, 2015, issued by the Ministry of Internal Affairs of the Republic of Kazakhstan, IIN...., in accordance with Chapter 44 of the Administrative Code on the recognition of illegal actions of the inspector of the battalion of traffic police of the Police Department of Kostanay region N.S.T. on drawing up a protocol on an administrative offense under Article 592 of Part 4 of the Administrative Code and the termination of proceedings in administrative case No. 223900030047820, with a private verdict resolutions addressed to the head of the Kostanay region Police Department for gross violation by Inspector N.S.T. of the norms of the Administrative Code, thus R.O.V. She appealed to the court in accordance with Article 44 of the Administrative Code to declare illegal the actions of the inspector of the battalion of the traffic police of the Kostanay region Police Department, N.S.T., in drawing up a protocol on an administrative offense under Article 592 of Part 4 of the Administrative Code and the termination of proceedings in administrative case No. 223900030047820, with a private decision addressed to the head of the Kostanay region Police Department for gross violation by Inspector N. of the norms of the Administrative Code. At the court hearing, R.S.T. She supported the arguments set out in the complaint and explained to the court that on July 4, 2022, at 10:19 a.m., traffic police inspector N.S.T. drew up an electronic protocol against her under Article 592 of Part 2 of the Administrative Code for speeding. She agreed with a violation, signed the protocol. She was fined 15,315 tenge (50% of the fine amount), which she had to pay within seven days. After drawing up the protocol, she went to the city of Kostanay.  On July 4, 2022, in the evening, Inspector N.S.T. called her on the phone, who asked her to drive up again, as he had made a mistake in drawing up the protocol. When she drove up to him in the evening, he said that it was necessary to draw up a protocol under Article 592 of part 4 of the Administrative Code. She did not attach importance to this, deciding that the inspector had simply made a mistake in drawing up the first report. On July 4, 2022, at 18:25 p.m., an electronic protocol No. 223900030047820 was drawn up under Article 592 of Part 4 of the Administrative Code. However, the inspector did not say that this worsens her situation. In addition, he said that the amount of the fine of 15,315 tenge would remain the same. Also, the inspector told her that he couldn't fine her. The inspector misled her, so she signed the second report and left. Then, a few days later, she received messages from the KASPI application that she had to pay fines in the amount of 15,315 tenge and 45,945 tenge according to two protocols. On July 8, 2022, she paid a fine under the first protocol in the amount of 15,315 tenge, as N.S.T. told her.  After that, on July 8, 2022, the inspector called her and said that the fine was 15,315 tenge, but 45,945 tenge had to be paid. It so happened that she was twice brought to administrative responsibility for the same violation.

 

She does not agree with the protocol on part 4 of Article 592 of the Administrative Code, her inspector misled her. By virtue of Article 12 of the Administrative Code, no one can be repeatedly brought to administrative responsibility for the same offense. Requests to satisfy the complaint, to recognize as illegal the actions of the inspector of the battalion of traffic police of the Police Department of Kostanay region N.S.T. on drawing up a protocol on an administrative offense under Article 592 of part 4 of the Administrative Code and to terminate proceedings in administrative case No. 223900030047820 on the basis of Article 741 of the Administrative Code. He believes that N.S.T. was negligent. For the violations committed, he asks for a private ruling. The official N.S.T. testified to the court that he works as an inspector of the battalion of the Kostanay region traffic police.  On July 4, 2022, at 10:19 a.m., he drew up an electronic protocol No. 223900046773 against R.O.V. under Article 592 of Part 2 of the Administrative Code for the following speeding violation. After a while, he discovered that R.O.V. had been involved for a year under Article 592 of the Administrative Code. He realized that he had made a mistake in qualifying R.O.V.'s actions, that they should have been qualified under part 4 of Article 592 of the Administrative Code. When drawing up this protocol, he did not pay attention to the fact that R.O.V. was brought to administrative responsibility in September 2021, namely, to administrative responsibility under Article 592 of the Administrative Code. He called R.O.V., telling her that he had made a mistake in drawing up the protocol and asked her to drive up to him. In the evening, R.O.V. drove up to him. He told her that he had made a mistake and it was necessary to draw up a protocol on part 4 of Article 592 of the Administrative Code. After that, on July 4, 2022, at 6:25 p.m., he drew up an electronic protocol No. 223900030047820 against R.O.V. under Article 592 of Part 4 of the Administrative Code for the same violation as under Article 592 of Part 2 of the Administrative Code, indicating in the protocol the repetition of the administrative offense. At the same time, he told her that he could not impose a fine on her himself, as the fine should be imposed by his superiors. On July 5, 2022, he wrote an explanation addressed to his boss, stating that he had made a mistake in his qualifications when drawing up the first protocol. Stating that he had restated the protocol on part 4 of Article 592 of the Administrative Code and that it was necessary to delete the first protocol on part 2 of Article 592 of the Administrative Code. He called RO.V. on July 7, 2022 and said that the fine under the first protocol in the amount of 15,315 tenge should not be paid. However, on July 8, 2022, she paid this amount. On July 15, 2022, the administrative proceedings for No. 223900046773 (electronic protocol) against R.O.V. under Article 592 of Part 2 of the Administrative Code were terminated by the head of the UMPS of the Kostanay region. Requests to dismiss the complaint. Having studied the complaint materials, watched the video, and listened to the applicant, the court comes to the following conclusion. According to part 1 of Article 827 of the Administrative Code, a person whose rights and freedoms are directly affected by an action (inaction) and (or) a decision of the body (official) conducting proceedings on an administrative offense has the right to file a complaint with a higher body (official) and (or) to court for violation of the law on drafting the protocol on an administrative offense, the application of measures to ensure the proceedings in the case, the appointment and procedure for conducting an expert examination, other actions (inaction) and decision-making, with the exception of decisions taken based on the results of consideration of an administrative offense case and on a complaint (protest) against a ruling on an administrative offense case.

 A preliminary appeal to a higher authority (official) is not a prerequisite for filing a complaint with the court and its acceptance by the court for consideration and resolution on the merits. In accordance with Article 828 of the Administrative Code, a person has the right to file a complaint with a higher authority (official) and/or a court within two months from the day he became aware of the violation of his rights, freedoms and legitimate interests. The deadline for filing a complaint has not expired. According to the materials submitted to the complaint, it follows that on July 4, 2022, at 10:19 a.m., the inspector of the battalion of the traffic police of the Kostanay region Police Department, N.S.T., drew up an electronic protocol No. 223900046773 against RO.V. under Article 592 of Part 2 of the Administrative Code for the following violation " July 4, 2022, 10:05 hours, R.O.V. driving a Toyota g\n 8.. ... 10 at A\d A-22 Kostanay – K.. in the area of 83 km., without a dividing lane, exceeded the set speed of 100 km/h by 22 km/h, which is recorded on iskra- video 2 0677 until March 30, 2023, 122 km/h." R.O.V. She was fined 15,315 tenge (50% of the fine amount). Rysmukhambetova O.V. agreed with this violation. After that, on July 4, 2022, at 6:25 p.m., the same inspector of the battalion of the traffic police of the Kostanay region Police Department, N.S.T., compiled an electronic protocol No. 223900030047820 against R.O.V. under Article 592 of Part 4 of the Administrative Code for the following violation: " July 4, 2022, 10:05 a.m., R.O.V. driving a Toyota g\n 860 PHF 10 along A\d A-22 Kostanay – Karabutak in the area of 83 km., without a dividing lane, exceeded the set speed of 100 km/h by 22 km/h, which was recorded on Iskra video 2 0677 to March 30, 2023, 122 km\h, committed repeatedly within a year after the imposition of an administrative penalty under Article 592 of part 2 of the Administrative Code of the Republic of Kazakhstan on September 20, 2021." From the explanations of R.O.V. It follows that after a protocol was drawn up against her under Article 592 of Part 2 of the Administrative Code, a few hours later Inspector N.S.T. called her, who asked her to drive up again, as he made a mistake in drawing up the protocol. When she drove up to him in the evening, he said that it was necessary to draw up a protocol under Article 592 of part 4 of the Administrative Code. She did not attach importance to this, deciding that the inspector had simply made a mistake in drawing up the first report. However, the inspector did not say that this worsens her situation. In addition, he said that the amount of the fine of 15,315 tenge would remain the same. Also, the inspector told her that he couldn't fine her. The inspector misled her, so she signed the second protocol. R.O.V.'s explanations to the extent that the inspector did not tell her that part 4 of Article 592 of the Administrative Code worsened her situation; that the inspector said that he did not have the right to impose a fine on her; and also that the inspector did not say that the amount of the fine under Part 4 of Article 592 of the Administrative Code would be higher, are fully confirmed the video provided to the court. The explanations of the official N.S.T. that on July 5, 2022, he wrote an explanation addressed to his superiors that he mistakenly qualified R.O.V.'s actions under part 2 of Article 592 of the Administrative Code and that this protocol should have been deleted cannot be taken into account by the court, since drawing up the protocol under part 4 of the article 592 of the Administrative Code, R.O.V. the same violation of traffic rules was imputed, but a repeat commission of an administrative offense was imputed, which worsened the situation of R.O.V., while the protocol under part 2 of Article 592 of the Administrative Code was not canceled.

 

Recognizing as illegal the actions of the inspector of the battalion of the traffic police in drawing up a protocol on an administrative offense, moreover, N.S.T. at the court hearing confirmed the fact that when checking the information about bringing R.O.V. to administrative responsibility, he did not pay attention to the fact that she was brought to administrative responsibility in September 2021 for Article 592 of the Administrative Code. Also, N.'s arguments cannot be taken into account. in the part that on July 15, 2022, the head of the UMPS DP of Kostanay region terminated administrative proceedings for No. 223900046773 (electronic protocol) against R.O.V. under Article 592 of Part 2 of the Administrative Code, since R.O.V. was fined in the amount of 15,315 tenge under this protocol, since by virtue of part 2 of Article 811 In the case of payment of a fine in the amount of fifty percent of the specified fine amount within seven days, the case is considered to have been considered on its merits, the decision has entered into legal force, and the person has been brought to administrative responsibility. Based on the above, the court considers that Inspector N.S.T. on July 4, 2022, at 18:25 hours, illegally drew up a protocol against R.O.V. under part 4 of Article 592 of the Administrative Code, since at the time of its compilation the electronic protocol under part 2 of Article 592 of the Administrative Code, drawn up on July 4, had not been canceled. 2022 at 10:19 a.m. According to part 1 of Article 827 of the Administrative Code, if violations of the law are found in the court for the preparation of a protocol on an administrative offense, there is no provision for termination of proceedings in an administrative case. In addition, the court considers it possible not to issue a private ruling. Thus, R.O.V.'s complaint is subject to partial satisfaction. Based on the above, guided by Articles 827- 829 of the Administrative Code, the court decided to partially satisfy R.O.V.'s complaint about the recognition of illegal actions of N.S.T., inspector of the battalion of the Traffic Police of the Kostanay Region Police Department, on drawing up a protocol on an administrative offense under Article 592 of Part 4 of the Administrative Code and the termination of proceedings in administrative case No. 223900030047820. To recognize as illegal the actions of the inspector of the battalion of traffic police of the Police Department of Kostanay region N. S.T. to draw up a protocol on an administrative offense under Article 592 of part 4 of the Administrative Code. Leave the rest of the complaint without satisfaction.  Recognition of illegal actions of the inspector of the battalion of traffic police on drawing up the protocol on an administrative offense

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