Bringing to administrative responsibility in the field of traffic on the basis of data obtained using photo and video recording

Agamagomedova Saniyat ORCID: 0000-0002-8265-2971 Senior Research Fellow, Institute of State and Law of the Russian Academy of Sciences 119019, Russia, Moscow, Znamenka str., 10 saniyat_aga@mail.ru Other publications by this author

Introduction

The institution of administrative responsibility is naturally transformed in modern conditions, promptly responding to changes in public relations. Digital technologies, which are actively included in all spheres of social life, have also "overshadowed" this public law institution, reflected, in particular, in the use of photo and video recording to identify and suppress certain categories of administrative offenses. There are three such categories in the current Code of Administrative Offences of the Russian Federation (hereinafter – the Administrative Code of the Russian Federation):

1) administrative offenses in the field of environmental protection and environmental management;

2) administrative offenses in the field of traffic;

3) administrative offenses in the field of landscaping provided for by the laws of the subjects of the Russian Federation and committed using vehicles.

In addition, the Administrative Code of the Russian Federation provides for the use of such means in the implementation of certain procedural actions (for example, during the inspection of things, personal search, etc.) (Articles 27.7-27.10, 27.14 of the Administrative Code of the Russian Federation). The implementation of these procedural actions makes it possible to identify offenses not only in the field of environmental protection, traffic, landscaping, but also other (for example, violations of public order) ^[1].

By far, the most relevant and widely discussed area of use of photo and video recording tools is the field of traffic. At the same time, when studying the issues of the necessity and effectiveness of using these funds in the field under consideration, the problem of the correlation of factors of fiscal pressure on road users and safety requirements certainly arises. In this regard, it is important to determine the optimal ratio of these factors, taking into account the further expansion of the use of photo and video recording in the field of traffic, as well as the stimulation of such practices at the departmental level. So, for example, in the course of traffic supervision, when an administrative offense is detected under Article 12.18 of the Administrative Code of the Russian Federation "Failure to provide an advantage in traffic to pedestrians or other road users", in order to form an irrefutable evidence base that helps ensure a full, comprehensive and objective consideration of the case, officials of State Traffic Inspectorate departments are recommended to use video recording tools or, if possible, to demand explanations from pedestrians (Letter "Ministry of Internal Affairs of Russia dated 04.09.2020 No. 13/12-P-7618 "On sending explanations". The document has not been published. Access from the SPS Consultant Plus).

Scientists have repeatedly addressed this issue ^[2-16], and some authors have called the impact of increasing fines for traffic violations on road safety an eternal problem of the sphere of relations under consideration ^[17]. The author of this article took part in a meeting on "Topical issues of bringing citizens to administrative responsibility based on data obtained using photo and video recordings", organized by the Federation Council Committee on Constitutional Legislation and State Building on March 27, 2023. The discussion of these problems became the reason for the study of a whole range of issues related to the procedures for bringing persons to administrative responsibility based on data obtained using photo and video recordings.

Strategic priorities and results of the use of photo and video recording in the field of traffic

The Road Safety Strategy in the Russian Federation for 2018-2024, approved by the Decree of the Government of the Russian Federation dated 08.01.2018 No. 1-r (Collection of Legislation of the Russian Federation. 2018. No. 5. Article 774), among the main tasks for the implementation of the direction related to changing the behavior of road users in order to unconditionally comply with traffic rules and regulations, calls, among other things, the further expansion of work on automatic monitoring of compliance by road users with traffic rules, including in terms of streamlining placement of special technical means operating in automatic mode, having the functions of photo and film shooting, video recording.

According to international experience, the development and implementation of national road safety programs is a key component of a country's safety management policy, which contributes to raising awareness of road safety, building partnerships to solve problems and focusing efforts on state and society intervention in solving existing problems ^[18].

Russian scientists identify the following main models of interaction between the state and society that have been formed to date in the field of road safety: influencing, facilitating, guardianship (paternalism), partnership (cooperation), gradual (incrementalism), synergetic, foresight ^{[19, pp. 45-49; 20]}. At the same time, each variant of the dominant model will form its own standard for digitalization of such interaction in the field of traffic, which will certainly be reflected in the use of special technical means. For example, the influencing model (the traditional version of organizational and managerial influence) assumes a certain passivity of its participants and, in fact, does not form responsibility as a stable psychological quality of road users. This involves the use of special technical means solely for the purpose of fixing violations and bringing to justice. A slightly different vector of using such means suggests a promotional (active position of the non-governmental parties to the interaction), partnership (mutual activity of the parties), synergetic (formation of useful stereotypes of the parties' behavior) model of interaction with the state in the field of road traffic: all parties to such interaction are interested in achieving its public goals, which are primarily to improve safety in the field of road traffic movements. The paternalistic model is based on the education of law-abiding behavior of road users, forms stable stereotypes of transport culture through various means, some of which are associated with the use of special means, the use of which is primarily preventive in nature. Models of logical incrementalism and foresight, based on flexibility in using various mechanisms of interaction between road users and the state, on tools for shaping the desired future in this area, provide, in our opinion, the most effective use of special technical means in ensuring road safety.

The use of automatic photo and video recording of traffic safety offenses has a long history, the first such cameras began to be used in Europe in the middle of the last century ^{[8, p. 168]}.

The system of such means in the field of traffic in Russia was introduced by Federal Law No. 210-FZ dated July 24, 2007 "On Amendments to the Code of Administrative Offences of the Russian Federation" and is considered by experts, first of all, as an important means of detecting violations of traffic rules ^{[5, p. 20]}.

In general, the practice of using photo and video recording tools in the field of traffic is positive. Statistics show that in 2022, for the first time, the number of fines imposed by the traffic police on violators of traffic rules exceeded 200 million, with more than a third of them in Moscow and the Moscow region. More than 90% of all decisions were made with the help of cameras — 183.5 million (an increase of 14%) by 112.8 billion rubles (an increase of 8%). There are also more automatic complexes on the roads (about 25 thousand cameras). Experts explain the increase in detected offenses by expanding the fleet of cameras capable of recording several types of violations at once. Against this background, the number of road accidents and deaths in them is decreasing (Russian motorists have taken a new penalty line. The merchant. 21.02.2023. https://www.kommersant.ru/doc/5840137?from=0_top_main_1 (mod. date: 04/15/2023)). Scientists also state the positive results of using these technical means, considering them as one of the most effective factors ensuring the minimization of offenses in the field of traffic. They draw attention to the possibility of round-the-clock monitoring of traffic flows on highways and intersections of any degree of complexity, a sufficient degree of reliability, the possibility of simultaneous fixation of several offenses ^{[7, p. 222]}.

At the same time, digitalization in the field of road safety has another side. We are talking about the introduction of so-called active safety systems aimed at timely notifying the driver of dangerous situations. Such systems are known as the advanced driver assistant system (ADAS) ^[9]. The purpose of their implementation is to create advanced driver assistance systems that provide the driver of a vehicle with effective information about dangerous road situations in accordance with stereoscopic vision systems ^[9].

The road safety system that is being formed in Russia is based on a different approach, in which digitalization does not serve driver assistance mechanisms, but mechanisms for detecting violations in order to bring administrative responsibility. Foreign authors consider such a legislative model to focus mainly on compliance with the rules under threat of punishment, rather than on safety training, and state its weakness and vulnerability, since knowledge of the standard in itself does not necessarily guarantee its compliance, and punishment, no matter how strict it may be, does not eliminate all types of risky behavior on the road ^[10]. At the same time, there is a position in foreign practice according to which an increase in the level of fines may indicate signs of "quality" that may affect the consumer's perception of the levels of associated risk, law enforcement efforts and social intolerance to speeding ^[17].

Procedural features of bringing to administrative responsibility based on data obtained using photo and video recordings

Bringing to administrative responsibility for traffic offenses based on these means of photo and video recording has procedural features, among which scientists distinguish the following:

- as a reason for initiating an administrative case, the data of automatic photo and video recording of the situation on the highway are considered, which are sent and processed in special Centers for automatic recording of administrative offenses in the field of traffic;

- the subject of violations identified on the basis of automatic photo and video recording data is exclusively the owner of the vehicle;

 - a decision on bringing to administrative responsibility is made without drawing up a protocol and without the direct participation of the subject of the offense;

- the main type of administrative punishment for such offenses is an administrative fine;

- copies of the decision on the case of an administrative offense and materials obtained using special technical means having the functions of photo or video recording are sent to the person against whom the case of an administrative offense has been initiated by registered mail in the form of a copy of the decision on paper or in the form of an electronic document signed with an enhanced qualified electronic signature authorized official;

- a simplified procedure of appeal is provided for such decisions, etc. ^{[7, pp. 222-223; 8, pp. 169-170]}.

The highlighted features indicate that optimizing the control of the traffic situation using photo or video recording tools, simplifying the work of traffic police officials may have another side, consisting in certain procedural obstacles to the full protection of their rights by road users. Other authors also point to the simplified procedure of proceedings in the case of an administrative offense detected in automatic mode as a factor in reducing the possibility of protecting the rights of a person being held accountable ^{[15, p. 61]}.

Problems of using data obtained using photo and video recording in the field of road safety, and ways to solve them

Scientists identify two groups of problems when using data obtained using photo and video recordings in the field of road safety: problems related to the technical imperfection of the technical means used, and problems of legal regulation of the process of bringing perpetrators to administrative responsibility ^{[7, pp. 223-224]}.

We believe that the latter category should be differentiated into two groups of problems: substantive, related to the legal status of persons involved in the relationship under consideration, and procedural, due to the imperfection of procedural provision for the protection of road users.

Among the problems of legal regulation of bringing to administrative responsibility on the basis of photo and video recording data, scientists call: a priori guilt of the vehicle owner, which contradicts the presumption of innocence, as well as the lack of obligation to certify receipt of a copy of the decision on bringing to administrative responsibility by the guilty person, which entails missing the established deadlines for its appeal and late payment of an administrative fine ^{[7, pp. 223-224; 16, p. 646]}.

Scientists, referring the use of complexes for photo and video recording of violations to the most effective ways of police control over compliance with the established speed of vehicles, cite as a problem of their use the rather high cost of such equipment ^{[5, p. 20]}, as well as the imperfection of measuring instruments or means of photo and video recording ^{[8, p. 172]}.

The considered aspects in relation to the field of traffic have an important feature related to the fiscal orientation of the active introduction of photo and video recording tools. The inadmissibility of strengthening the fiscal vector of using these funds has been repeatedly pointed out by Professor A.A. Grishkovets ^[2-3], who proposed the defiscalization of the Code of Administrative Offenses of the Russian Federation, including in terms of its regulation of road safety issues ^{[2, 503-504]}. It is difficult to disagree with this, since the purpose of administrative punishment is, first of all, prevention.

V.I. Mayorov and O.I. Beketov, as recommendations for improving the mechanisms for detecting and suppressing administrative offenses in the field of road safety, propose to reconsider approaches to bringing legal entities to administrative responsibility, as well as certain categories of road users (pedestrians, passengers) ^{[4, p. 567]}. E.V. Klimovich draws attention to the lack of adequate differentiation of responsibility for persons who systematically violate established rules or commit the most dangerous violations ^{[15, p. 63]}. As a solution to this problem, the scientist proposes to establish as a basic criterion for determining the possibility of using automatic fixation of offenses the public danger of the act, which is determined, among other things, by the established sanction, and the simplified procedure for such cases should be applied only to offenses that do not entail deprivation of the right to drive a vehicle.

 Foreign experience in using data obtained using photo and video recordings in the field of road safety

According to European experts, traditional methods of supervision in traffic development plans should be combined in an optimal proportion with the use of technical means that detect and fix violations in automatic mode ^{[16, pp. 643-644]}.

It is noteworthy that in the foreign scientific literature there are four main behavioral problems that cause the presence of a threat to safety in the field of traffic. These are problems related to "speed", "alcohol", "refusal to use protective equipment (for example, helmets)" and "compliance with traffic rules" ^[21]. In addition, scientists naturally distinguish between the problems of road safety in developing and developed countries of the world. For example, in the latter, experts identify individual problems that have not found effective solutions in the modern period, for example, safety problems related to the movement of motorcyclists, driving fatigue, and vulnerability of the elderly ^[18].

Foreign studies name the improvement of driver education and training, improvement of transport infrastructure, development of active and passive safety, improvement of the quality of life in the city (mobility plans), pollution control and others as ways to ensure road safety ^[11], encouragement of walking and cycling. the development of public and active transport, investing in safer transport systems such as the metro and railways ^[12]. When characterizing the systematic formation of law-abiding behavior of road users, scientists believe that it can be achieved through uniform law enforcement, supported by legislation and penalties, education and advertising, as well as the introduction of new transport technologies ^[18].

Scientists pay attention to the fundamental difference between certain aspects of the use of special technical means in domestic and foreign practice, in particular, the mandatory identification of the driver with the help of such means in certain European countries, whereas in domestic practice it is only about fixing the registration number of the vehicle ^{[15, p. 62]}.

As for the use of fines by means of photo and video recording, scientists conclude that the use of double fines in high-risk areas such as work areas, school zones and safety corridors increases the perceived risks associated with speeding (risks of getting into an accident, getting a traffic warning from the police, getting a fine and increase your insurance premiums). These conclusions differ somewhat from the traditional approach in traffic rule compliance studies, according to which an increase in fines (including through the use of photo and video recording tools) is considered as an increase in the severity of punishment ^[17]. Experts also make proposals on the need to increase government spending on information systems for road safety management, while it is noteworthy that they are considered not as a means of detecting violations, but as mechanisms that allow local service providers to access current information about accidents and analyze it ^[22].

Thus, the positioning of information and other technical means of ensuring road safety in foreign studies is associated with access to information about the current situation on the roads and its subsequent analysis, and not with the ability to identify the maximum number of traffic offenses.

We paid attention to the presence of identical trends in the study of issues of state control and supervision, its transformation in the digital economy ^[23-24]. State control and supervision, including digital control, are designed to promote the lawful behavior of controlled persons, stimulate their activity, and should not be aimed at detecting offenses in the controlled area.

The need to extract information on the basis of photo and video recording tools about an ill-considered approach to setting speed limits, road signs and other information is highlighted by scientists comparing the norms on administrative responsibility in the field of traffic in Russian and foreign legislation ^{[16, p. 650]}. They essentially confirm our provisions on the need to change the vector in the use of special technical means in the field of road safety.

Conclusion

The issues of bringing to administrative responsibility on the basis of data obtained using photo and video recordings are considered by us on the example of the traffic sphere. The necessary level of safety in this area can be ensured through two groups of mechanisms: the development of driver assistance systems (digitalization within the vehicle) and the use of photo and video recording tools to control the situation on the roads.

In the first case, we are talking about the development and improvement of "advanced driver assistance systems". Existing projects may differ in the techniques used: high-performance camera, radars, cameras and ultrasonic sensors that are designed to detect a speed bump, pedestrian, vehicle, or otherwise contribute to driver safety ^[9].

In the second case, we are dealing with the digitalization of controls for road users. The approach to the use of photo and video recording tools is fundamental. The main objectives of their application should be to obtain information about the state of the situation on the roads in order to minimize risks and ensure safety for all road users, rather than identifying the maximum number of violations for which administrative fines will be collected. A review of a number of foreign sources indicates that in a number of countries, the emphasis when using technical means is on data analysis, access to information about the state of the roads, and safety management through fixation.

Unfortunately, in Russia, administrative responsibility in the field of road safety continues to follow the path of strengthening sanctions against drivers of vehicles ^{[4, p. 566]}, and strengthening its fiscal component. Of course, the system of administrative penalties in various historical periods has changed depending on the trends in the development of public life ^[25], and the ways of fixing illegal acts are also changing. However, these transformations should in no way affect the basic principles of administrative punishment, they are designed to embody its traditional goals – the goals of preventing the commission of offenses.