In the publication the bases and an order of production of a stop the staff of GAI of vehicles, their survey and examination, and also the right of the driver in detail reveal at a stop the inspector of GAI.
What only stories don’t walk in the people about inspectors of traffic police. Jokes about "workers of a whistle and a striped staff" (tenderly called in the people GAI officers) break popularity records among the population. Communication of drivers with workers of the State traffic inspectorate – the bewitching dramatized representation in which actors play a mimicry, gestures, papers under the name "The protocol about administrativne pravoporushennya" and papers under the name to "hryvnia". The audience passing by always twists the heads in hope longer to take pleasure in performance played on a roadside. Having left a scene of action, judges of comedies and dramas strenuously "blink" headlights the passer to warn them about approach to theater of national creativity and possibility to become the direct participant of representation.
NOT "PODMAZHESH" – YOU WILL NOT GO?
Evil tongues argue that GAI officers take bribes. Kind languages uncertainly oppose, but to overpersuade "malicious" don’t try. Stories about the veiled extortion begin differently, but come to an end, as a rule, equally. Therefore the ending to consider to us it is uninteresting, to analyze outset dramatic art more interestingly. "Narusha¾mo? SHHo budemo robiti?" – most widespread of intrigues. But it after all is primitive. The real master of a dusty scene should be able to stop a vehicle without any bases on that and to convince being at a wheel unfortunate of violation of everything that only that can present to itself(himself). And here action begins: "V_dkriyte luggage carrier …", "And ce shho?…" "Pokazh_t, shho in salon i …". It is an avalanche as a result of which the victim has every chance to exchange the spread complex of fault for a note of the coordinated face value. And can and disagree … and there comes a turn of the actor playing a role of the driver, to show the mastery. Gestures, a mimicry – it is good, but again. The TEXT is important.
YOU WILL NOT DETAIN – YOU WILL NOT LOOK THROUGH …
So, we will disassemble, in what cases of the inspector of traffic police (IDPS) have the right to examine/look through a vehicle, having stopped the driver on the road.
In the Law of Ukraine "About militia" (further – the Law "About militia") is two norms concerning a question interesting us. For performance of the duties of militia assigned by the Law the right is granted:
1)" … oglyadati transportni zasobi i pereviryati at waters i ї in the document on the right koristuvannya j keruvannya them …" (item 21 of Art. 11 of the Law of Ukraine "About militia");
2) "carry out oglyad osib, zaznacheny at punkti 5 c i ye ї statt i, speeches, shho znaxodyatsya at them, transdressmakers zasobiv i viluchati the document that a subject, shho mozhut buti rechovy dokazami Abo vikoristani on Skoda їx zdorov’yu;" (item 6 of Art. 11 of the Law of Ukraine "About militia").
Quotes are provided on original language not so casually. The matter is that the Russian-speaking terms "survey" and "examination" are translated to Ukrainian equally – "oglyad". And this untranslatable word-play, unfortunately, installs a distemper in minds trying to understand the law of persons. And so in the first of the given norms it is a question of the right" … To EXAMINE vehicles and to check at drivers documents …", and in the second – about the right "to make EXAMINATION of persons, …, things which are at them, vehicles and to withdraw documents and subjects which can be physical evidences …".
Between an essence of these two offers – an abyss. In the first case it is told about visual external survey of the car at verification of driver’s documents and visual external survey of mechanical damages of vehicles at registration of materials about road accidents.
In the second case it is a question of examination (the term having other value) of personal belongings and vehicles of persons which exhaustive list is provided in item 5 of Art. 11 of the mentioned Law.
Let’s not stop in detail on the list covering:
• the persons suspected of crime execution;
• persons concerning whom as a measure of restraint the capture under guards is chosen;
• the persons who have made administrative violations;
etc.
At once we will pay close attention to keywords with which item 5 of Art. 11 of the Law "About militia" begins: "zatrimuvati i trimati at spets_alno v_dvedeny for tsyy primishhennyax: …", then the mentioned list follows.
So, the major moment on which it is necessary to put accent – EXAMINATION of personal belongings and vehicles (unlike their external survey), assuming studying of contents of pockets of clothes, bags and luggage carriers of cars, employees of militia can make only at the persons DETAINED in a criminal and procedural or administrative order. Certainly, the requirement of the inspector of traffic police to open a luggage carrier and to glance inside, also as the requirement to show contents of bags, is examination of a vehicle and examination of personal belongings.
It is necessary to understand that examination of the property being in personal property of the citizen, is restriction of its rights and freedoms though militiamen, probably, would like to think differently. According to h. 4 Art. of 5 STORAGES "About militia" "Miliciya timchasovo, in boundaries of a ceremonious zakonodavstvo, obmezhu ye it is right i to freedom gromadyan, yakshho without tsyy not mozhut buti vikonani pokladeni on not ї obov’yazki, j zobov’yazana to date їm poyasnennya z tsyy to a drive". This DUTY to give explanations "z tsyy to a drive" completely korrespondiruet the right of the driver to know the reason of examination of a vehicle. Such right is established by the subparagraph "in" item 2.14 of the Traffic regulations approved by the resolution of Ministry of N 1306 from 10.10.2001. The fragment of traffic regulations is worthy to be quoted:
"2.14. Vodij ma ye right:
… v) the nobility the reason of a zupinka, a perev_rka that oglyadu transport zasobu posadovoyu the person majestic to body, a yak zdijsnyu ye naglyad for dorozhnim Rukh, and takozh її pr_zvishche i posadu;
g) vimagati vid individuals, a yak zdijsnyu ye naglyad for dorozhnim Rukh that zupinila transportniya zasib, pred’yavlennya posvidchennya її individuals;"
…"
This right to each driver is necessary for knowing, remembering and realizing in case of desire of IDPS to look through its vehicle. And if GAI officers learned to justify the stop reason for the notorious: "Perev_rka dokumentiv" (that, generally, an explanation to call difficult, it is possible unless only to reconcile to that), the reasonable reasons for luggage carrier examination if the person is pure before the law, isn’t present in mention.
The first steps of counteraction are already formed of the foregoing at the requirement to show a car luggage carrier to examination:
1. To demand to show the business card of the worker who has stopped the car of GAI.
2. To demand to specify the reason of carrying out examination though owing to different interpretations in languages even at carrying out superficial survey of the car the driver has the right to demand from the employee of GAI of an explanation of the reasons of that carrying out.
We follow further.
As it was specified, examination of vehicles is carried out at the persons detained in:
1) administrative or
2) criminal and procedural order.
In the first case it is necessary to make an administrative offense (about what the protocol on an administrative offense), in the second should be made – to be the suspect of commission of penal act.
In case of detention the detention protocol should be surely made. At an adminzaderzhaniye – the protocol on administrative detention, at detention on suspicion in crime execution – the detention protocol on suspicion in crime execution. If NOT protocol is made – the person isn’t a detainee. It – the free person in the free country (on a legend) which personal property is inviolable. Only AFTER drawing up of the protocol of detention employees of militia have a right to examination of personal belongings and vehicles. As we see – everything isn’t so trivial, as employees of law-enforcement bodies want to present it to "victims".
The following item of formed algorithm of actions follows from the above-stated circumstances in case of insuperable desire of militia to glance in a luggage carrier, salon, "glove compartment" of the favourite car.
3. To demand drawing up of the protocol of an adminzaderzhaniye or the detention protocol on suspicion in crime execution.
But since recent time not everything is so simple and at allegedly detention. It agrees to the changes brought in the 2005th year in Law article 5 "About militia" the employee of militia at detention it is obliged to explain orally the rights of the detained person, and also to hand over in writing an explanation, and the rights of the detained persons established by laws. Absolutely logical in formed algorithm of our counteraction to lawlessness the following item, the fourth arises.
4. To demand the employee of GAI to explain to (read) your rights and to hand over their explanation in writing to what obliges Law Art. 5 "About militia".
And there comes already full stupor for trying "bespredelnichat" on the road of employees of GAI. First, how it is possible to explain what you do not know itself? Secondly, anybody to detain anybody and doesn’t try. There is a desire to "feel" the car owner on ability easy to leave money. To a word – in this "poshchupyvaniye" the history even knows cases of claims to drivers concerning absence in a luggage carrier … a jack (the tool which isn’t obligatory for existence in a vehicle) and terrible fables about punishment for such "the worst violation".
Certainly, examining cars in "the square-cluster way", the militia sometimes and criminals catches. However this fact pleasing us doesn’t do primary groundless examination (here we will pass to whisper that criminals didn’t hear) to the corresponding requirements of the legislation.
AGAINST BREAKING THERE ARE RECEPTIONS
If to finish the legal analysis of this situational task to logic end, it is necessary to focus attention on the below-mentioned: independently to open locks of salon, a luggage carrier employees of militia out of criminal procedure have no right. According to the current legislation to open the closed rooms and storages (if the owner refuses to open them) the inspector has the right only by production of a search on the raised criminal case. The law doesn’t provide other cases of legal breaking. That is why always, not so casually, from the driver demand to open a luggage carrier and to show its contents own hands. It is a militian tactical move that in case of complaints to wrongful actions not to be accused of production of an illegal search. It is thought dexterously up and is used long ago. All is represented as VOLUNTARY, without coercion and application of measures of physical impact, demonstration of contents of a luggage carrier, bags, pockets … A legend "I asked – to me showed" has no defects, everything allegedly occurs on principles of full voluntariness. To recognize actions of the employee of militia wrongful in this case it is impossible.
From the told one more conclusion follows. It is possible it (is necessary) to put consciously trying "bespredelnichat" employees of GAI before need INDEPENDENTLY to open locks, to open doors and doors. And it is the improbable scenario for employees of militia at whom is though a shred of an instinct of self-preservation. So it is necessary and to bring an attention to the question on the road: "In the status of the suspect (after drawing up of the protocol of detention and an explanation to me my rights) I will open locks with own hand. In the status of the free person in the free country – open/crack independently with approach of the corresponding consequence in law. Well and if decide to crack, be kind to invite two understood in the presence of which personal inspection and examination of things administratively and a search – as it should be criminal and procedural" is made.
To imagine succession of events in the offered course already it is almost improbable … Why to the GAI officer such … (insulting epithets) clever and competent if by during this time passed already ten others – kind, appeasable, generous further will follow and that is the most pleasant, absolutely not not knowing rights of participants of traffic.
Certainly, asking questions and disclosing requirements, it is not necessary to abuse decibels in a voice and, certainly, it is not recommended to lay down on a luggage carrier a breast or to enter a sparring. It is necessary to speak softly, but it is convincing, having begun with a polite question: "What after all lawful bases for examination?"
Let’s remind that according to article 1223 KOAP preventing to carrying out by the employee of militia of examination of vehicles in the cases provided by the LAW attracts penalty imposing from four to six nmdg (from 68 to 102 UAH.) Here you softly also are interested, what of the cases, provided by the law, takes place here and now as illegal requirements of public officials of public authorities aren’t subject to execution. Moreover, citizens are relieved from responsibility for default of Illegal requirements of public officials of public authorities. On the contrary, illegal requirements of these persons it is possible to qualify that as excess of the power or abuse.
Now we will make small lyrical digression. It would be desirable to emphasize the following: the reader to whom reflections on this subject are addressed, for us a priori – absolutely legislative person. And all councils are addressed to exclusively law-abiding citizen. Situation consideration on the road in a little unattractive foreshortening is unfortunately dictated by cases of tossings taking place in practice in a course "dosmotrov" different juicy things and subjects for which storage legal responsibility – from administrative to criminal is provided. And allegedly finding of those subjects is an excellent opportunity for extortion, blackmail or an embodiment of other, far-reaching plans at realization of "custom-made" affairs. Therefore knowledge of procedural nuances of carrying out personal inspection and examination of vehicles in realities of our country, alas – need from the point of view of a personal security of each our citizen.
"DRUGS, THE WEAPON ARE?" – "IS NOT PRESENT, NOT IS!"
Considering a subject in all its possible foreshortenings, it is necessary to mention the right of employees of militia to see off examination of vehicles and according to the Law of Ukraine "About come protid i ї illegal obigu narkotichny zasobiv, psychotropic rechovin i prekursoriv that zlovzhivannyu them". A part 1 of article 8 of this Law "Oglyad of transdressmakers zasobiv, vantazhiv i osobisty speeches gromadyan" establishes:
"Oglyad transport zasobu, vantazhu, shho in nyy znaxoditsya, osobisty speeches vodiya i pasazhiriv mozhe buti zd_ysneno posadovy persons organiv M_n_sterstva vnutrishnix sprav Ukra§ni i Sluzhbi bezpeki Ukra§ni on PIDSTAVI ZAYaV, povidomlen about PRAVOPORUSHENNYA, pov’yazani z nezakonny ob_gy narkotichny zasobiv, psychotropic rechovin chi prekursoriv, Abo for nayavnosti about ce insho ї dostov_rno ї informac i ї competent organiv".
At once it is necessary to pay attention to words "on pidstavi zayav, povidomlen …" and to make a reservation that registration number is SURELY assigned to such information. Information is registered in the special magazine – ZHRZPZ (The magazine reyestrac i ї zayav i povidomlen about zlochini, shho vchineni Abo gotuyutsya). But the most interesting to us contains in h. 3 Art. 8 of this Law:
"At razi BEZPIDSTAVNOGO oglyadu to transport, vantazhu, shho in nyy znaxoditsya, vodiya i pasazhiriv, and takozh bezp_dstavny dostavlennya zaznacheny osib i to transport in body vnutrishnix sprav taki individuals mayut the right on vidshkoduvannya in povny obsyazi zavdano ї їm mater_alno ї i morally ї to Skoda zg_dno z we repair a zakonodavstvo".
So, that examination of vehicles isn’t an ordinary preventive measure when catching offenders "at random", is accurately traced in a position of the legislator. For production of examination of the car there should be actual BASES – or registered in ZHRZPZ information, or commission of an offense and an adminzaderzhaniye of the driver of a vehicle with drawing up of the corresponding protocols, or production of investigatory actions according to the Code of penal procedure.
SUMMARIZING THE FOREGOING
Now, having analysed everything from the beginning and up to the end, for preparation for a meeting with the employee of GAI on the road … (attention!) … intentionally we will mix everything about what we here spoke, in uniform cocktail and we will carefully mix. Average IDPS isn’t engaged in what we finished studying here – the analysis, considering of normative legal acts, office lawful from illegal. It simply waves a staff and asks to open a luggage carrier. Proceeding from it it "simply desires", with a view of formation of a complex of measures stopping "lawlessness", we will try to formulate rough algorithm of our actions in case of a stop of the car being in personal property of the citizen, employees of GAI and desire to look through a luggage carrier (salon).
___________
* Applying, to observe sense of proportion.
Certainly, the given algorithm of actions isn’t a certain absolute, dogma for all occasions. It is necessary to treat him as quintessence of existing normative legal acts – certain "crib" in which everything is artificially collected that only it is possible to get on particles from our inconsistent legislation. To apply stated or not (in parts or completely) – should solve everyone and individually.
Undoubtedly, courtesy of the driver can be so high that it will voluntary open car luggage carrier/salon for contemplation of their contents, without demanding any explanations and observance of the rights. And, having spent for communication a small amount of time, to leave, having forgotten about an event in a minute. But it is necessary to understand that sometimes the phrase: "V_dkriyte a luggage carrier" – it only the overture before the subsequent performance. And the vis-a-vis with a staff can appear what virtuoso in game, anybody doesn’t know.
At last it was necessary to say only old, kind wish to all drivers: "Neither a whistle, nor a staff", well, and with reference to a subject: "… open luggage carriers".
N. Drobotenko, adviser for business safety issues.