News

The Supreme Court has indicated what is considered inappropriate notice of hearing

The hearing of the case in court, for example, the deprivation of the driver’s rights, can be notified using an SMS message. But only if the driver has given his consent. Failure to do so would be considered improper notice. And the driver is deprived of the right to protection. What will entail, at best, a reconsideration of the case. The Supreme Court recalled this when examining the case of a driver who was deprived of his rights for allegedly refusing to have a medical examination.

The case turned out to be exciting. The magistrate literally took the inspector’s word for it, did not check the accuracy of the documents and the observance of the procedure for referral to a medical examination. But first things first. In December 2020, a certain driver Apozyan was stopped by an inspector of the road patrol service on Kantemirovskaya Street in Moscow, the Pravo.ru portal reports. He considered that the driver was drunk – the protocol indicated several signs, including the smell of alcohol from the mouth. The inspector offered to be tested for alcohol intoxication. That is, roughly speaking, breathe into the breathalyzer. The driver did not refuse this procedure, and the device showed zero result.

And then the data diverge. The inspector claims that the device did not dispel his suspicions and he offered the driver to undergo a medical examination for intoxication, which the driver refused. At the same time, the driver and his lawyer argue that no one refused a medical examination, the inspector did not offer it at all. And he offered to pass urine on the spot for analysis. Without visiting a medical facility. It is clear that the driver did not take such a step, which is not stipulated by any laws and regulations. That did not prevent the inspector from drawing up a protocol on refusal of medical examination, as if he had the right to carry out purely medical operations in the form of taking tests.

Further, the magistrate’s court deprived Apozyan of his rights for a year and a half and imposed a fine of 30 thousand rubles. The Court of Cassation upheld this decision. And only the Supreme Court disagreed with him.

The first thing that the Armed Forces drew attention to was that the driver and the lawyer had repeatedly pointed out the violation of the procedure for referral to a medical certificate. This could be verified simply: to summon the attesting witnesses to the court. But the magistrate did not.

The inspector did not offer the driver to undergo a medical examination. He offered to take tests on the spot, and for refusal he issued a protocol

It is known that an alcoholic examination, as well as a referral for a medical examination, must be carried out either in the presence of two attesting witnesses, or under video recording. But there was no video recording of the procedure either. She was automatically removed from storage, the magistrate was told from the traffic police unit.

Thus, the lower courts did not comprehensively clarify the issue of the legality of sending the driver for a medical examination. Recall that violation of this procedure has more than once led to the release of drivers from liability.

In addition, the Supreme Court drew attention to the driver’s notification of the place and time of the case. By the magistrate, it was sent to the driver and his defender by SMS. But at the same time, there is no information in the case file that they gave their consent to such a notification.

At the same time, according to the decision of the Plenum of the Supreme Court of March 24, 2005, the notification can be sent using any available means of communication, allowing to control its receipt. Including an SMS message if the person agrees to be notified in this way and when the fact of sending and delivering an SMS notification to the addressee is recorded. And since the driver and his lawyer do not agree to such a notification, it means that they were not properly notified of the date of the consideration of the case by the magistrate, which entailed a violation of the victim’s rights to defense.

With all this in mind, the Supreme Court overturned the decisions of the lower courts. And he dismissed the case due to the lack of evidence of the circumstances on the basis of which the decisions were made.

Unfortunately, the Supreme Court quite often has to point out to the lower courts about the inappropriate notification of the time and place of the hearing. A particularly revealing case was heard back in 2017. There, the driver was deprived of his license for a year for re-entering the oncoming lane. At the same time, the judge sent a summons, which he did not receive. But surprisingly, the case was heard even before the expiration date of this letter in the mail.

However, before the hearing, the judge sent a telephone message. But the phone number was not listed. This means that it is impossible to control who it was sent to. It is also impossible to control the receipt of this telephone message by the addressee.

And one more thing: the telephone message was sent several hours before the start of the hearing on the case. And this suggests that the driver was not notified in advance. Nevertheless, the judge examined the case in his absence, indicating that he had been notified in good time and properly.

This issue was ignored by all subsequent courts. But the Supreme Court found the driver inappropriately notified, not in advance, and therefore considered that his right to defense had been violated.

On this basis, the Supreme Court overturned the decisions of the lower courts. And he dismissed the case on the basis of the expiration of the statute of limitations for bringing to responsibility.

I must say that both drivers had to walk on foot until the decision of the Supreme Court. After all, they were deprived of their rights and the decisions entered into force. Maybe it is worth introducing personal responsibility for illegal decisions, and then there will be fewer of them?

Leave a Reply

Your email address will not be published. Required fields are marked *

Back to top button