By a resolution on an administrative offense, an administrative penalty was imposed on the driver in the form of a fine in the amount of 10 MCI for committing an offense provided for by Part 1 of Article 600 of the Code of the Republic of Kazakhstan on Administrative Offenses, namely, for not providing an advantage in traffic to pedestrians or other road users. However, in this case, the pedestrian did not cross the roadway. He was at a distance from the intersection, did not move towards the intersection and did not cross the carriageway at the time the car passed. The driver did not agree with the decision and filed a complaint with the specialized administrative court, indicating in it the following grounds for canceling the decision:
1. THERE WAS NO EVENT OF AN ADMINISTRATIVE OFFENSE.
From the decision in the case of an administrative offense it followed that "at the intersection of streets, the driver, when turning left, did not give way to a pedestrian."
In accordance with paragraph 1 of Section 13 of the Rules of the Road of the Republic of Kazakhstan, when turning right or left, the driver gives way to pedestrians crossing the carriageway in his direction of movement, onto which he turns.
Paragraph 3 of Section 3 of the Rules of the Road stipulates that pedestrians cross the carriageway of the road at pedestrian crossings, and if they are not within sight, at intersections along the line of sidewalks or roadsides.
According to subparagraph 53) of paragraph 2 of Section 1, a sidewalk is a part of the road intended for pedestrian traffic, adjacent to the carriageway of the road or separated from it by a lawn.
The pedestrian did not cross the road. He stood on the lawn away from the sidewalk, away from the intersection and did not move towards the intersection in order to cross the carriageway. Therefore, the driver believed that he did not commit an administrative offense, and the fact that he did not stop and did not let a pedestrian who was standing far from the intersection and did not even step onto the roadway is not a violation of the Rules of the Road.
2. THERE WAS AN EVENT OF ANOTHER ADMINISTRATIVE OFFENSE COMMITTED BY ANOTHER PERSON
The driver managed to obtain a copy of the video footage from the surveillance cameras of a nearby store. From the record it followed that the pedestrian after the passage of the car crossed the road in the wrong place. In accordance with Part 1 of Article 615 of the Code of Administrative Offenses, non-compliance by pedestrians and other road users with the requirements established by the rules for ensuring road safety entails a fine of 5 MCI. Thus, the police officers should have brought the pedestrian to administrative responsibility, and not the driver, since there is an event of a different offense committed by another person.
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3. WHEN ISSUING THE DECISION, THE VIDEO RECORDING OF THE OFFENSE WAS NOT EVALUATED
According to paragraph 5 of the Instructions for the use of technical means to record the facts of the commission of criminal and administrative offenses and actions of employees of the internal affairs bodies of the Republic of Kazakhstan employees of the internal affairs bodies in the performance of their duties are provided with video recorders.
In accordance with paragraph 4 of this Instruction, video recorders are designed to make audio-video recording of the environment, the actions of citizens, as well as the process of actions of police officers during the performance of official duties, preventive measures and special operations, in order to ensure the collection of a high-quality evidence base, in the suppression of offenses. Since the police officers were performing their official duties, they were obliged to record everything that happened with the help of video recording equipment.
When issuing the appealed decision in the case of an administrative offense, the police officer did not examine the video recording of the video recording equipment and did not give an appropriate assessment of the circumstances of the alleged offense.
Consequently, the decision to impose an administrative penalty was unlawful due to the lack of properly collected evidence showing that the driver did not let a pedestrian legally crossing the carriageway.
Thus, on the basis of subparagraph 1) of part 1 of article 741 of the Code of Administrative Offenses, the proceedings on the case of an administrative offense could not be started, and the initiated were subject to termination due to the absence of an event of an administrative offense.
Based on these violations, the driver asked the court to cancel the decision in the case of an administrative offense, and to terminate the proceedings in the case of an administrative offense due to the absence of an event of an administrative offense.
When considering the case, the court concluded that the fact of an administrative offense on the part of the driver was not confirmed. From the surveillance camera video of the shop submitted by the applicant, it was clear that the pedestrian was crossing the road not at a crossroads, but at an unidentified location. In this regard, the driver did not violate paragraph 1 of Section 13 of the Rules of the Road. In accordance with subparagraph 2) of part 1 of Article 741 of the Code of Administrative Offenses, the absence of an administrative offense is a circumstance excluding proceedings in a case on an administrative offense. Therefore, the court decision to impose an administrative penalty in the form of a fine was canceled, and the proceedings were terminated.