The Foundation of the temporary detention of the vehicle

The Foundation of the temporary detention of the vehicle defined the first part of article 265-2 of the code of Ukraine about administrative offenses.

So, part one of this article provides that in case there are grounds to believe that the driver committed defined by the Code of offenses, an employee of the State automobile Inspectorate temporarily detain the vehicle by blocking or delivers it to store on a special pad or Parking (if the placement of the detained vehicle significantly hinders the flow of traffic), including those with special car - wrecker.

This provision binds the temporary detention of the vehicle with a number of offences in the Commission of which there is reason to believe the driver is guilty. This, in particular, offences such as:

driving with the malfunction of the braking system, steering, trailer hitch or other faults, which in accordance with the established rules prohibit their operation in a timely manner not passed state inspection (article 121 of the Code);
vehicles identification number of the component parts which do not meet the records in the registration documents, destroyed or tampered with (article 121-1 of the Code);
driving drivers who have not taken or did not provide not conveyed to verify the identity of the driver of respective category, pass to him, registrations and other documents required by the Rules of the road (article 126 of the Code);
driving by persons in a state of alcoholic, narcotic or other intoxication (article 130 of the Code);
violation of the road traffic carriage of dangerous goods, rules of travel bulky and heavy vehicles roads, streets and railroad crossings (article 132-1 of the Code);
equipment owners or drivers of vehicles specially hidden or disguised in some places, which are used to transport illegal migrants (article 206-1 of the Code).

It should be borne in mind that this list does not include such offenses related to the rules of a stop or Parking of vehicles. That is, the violation by the driver only of rules of a stop or Parking the vehicle, if they had any other offense under the above provision of the Code, may not entail the apprehension and delivery of the vehicle to be stored on a special platform or Parking.

In addition, we draw attention to the fact that the law does not grant to the employee of the state traffic Inspectorate of the right of choice concerning what event to use when identifying offences - lock the vehicle the offender or to deliver it with the help of a tow truck for storage in a special area or Parking.

The law establishes that the provisional detention of the vehicle by delivering it to store on special grounds or Parking, including with the help of a tow truck, is possible only if the placement of the detained vehicle significantly hinders the flow of traffic (the first part of article 265-2 Code, article 52-1 of the law of Ukraine "On road traffic").

In the case of temporary detention of the vehicle, the traffic police officer must provide the person an opportunity to report on the temporary detention of the vehicle and its location another person of their choice and to take measures to return the car to the place of permanent deployment (part two of article 265-2 Code).

In this case, it is necessary to take into account the fact that according to the Order of temporary detention and storage of vehicles at special sites and parks, the approved resolution of the Cabinet of Ministers of Ukraine of 17 December 2008. No. 1102, if the elimination of an administrative offence at the place of its finding, the delivery of the car on a special platform or Parking is not carried out.

So, the employee of traffic police as a last resort has the right to temporarily detain the vehicle by way of delivery to store on a special pad or Parking lot with a tow truck in the case when the driver committed an offence under certain provisions of the Code that cannot be eliminated in place of its discovery, and the vehicle significantly hinders the flow of traffic.

It is also necessary to consider that according to paragraph 8.1. Instructions for execution by employees of the state traffic Inspectorate of the Ministry of interior materials about administrative offenses in the sphere of ensuring road safety, approved by order of the Ministry of internal Affairs of Ukraine, dated 26 February 2009. No. 77 (registered in Ministry of justice of Ukraine on April 24, 2009 No. 374/16390), it is considered that the vehicle creates significant/substantial obstacles traffic if he makes it impossible for the movement of vehicles on the carriageway of a road.

A vehicle may be temporarily detained for the period until the decision of the case on administrative violation, but no later than three days after such arrest. After a three-day period of temporary detention of the vehicle the person is entitled to apply for obtaining temporarily detained the vehicle. This treatment facial is required for its execution regardless of the stage of settlement of the case on administrative offence. For filing of such appeals and the refund of the person temporarily detained the vehicle may be charged.

The decision on the temporary detention of the vehicle

Separately it should be noted that Ukraine recognizes and applies the principle of the rule of law (article 8 of the Constitution of Ukraine), according to which the individual, his rights and freedoms are Supreme values and determine the content and direction of state activities.

Therefore, when deciding on the temporary detention of the vehicle or handing it to store on a special pad or Parking lot, an employee of the state traffic Inspectorate should operate on the assumption that the implementation of power management functions involves not only formal, literal compliance with legal requirements, and subject to the principle of the rule of law, in particular the principle of proportionality, as part of it.

Thus, under article 41 of the Constitution no one may be unlawfully deprived of property rights. In accordance with article 319 of the Civil code of Ukraine, the owner owns, uses, disposes of his property at his own discretion. The activity of the owner may be limited or terminated only in the cases and pursuant to procedure provided by law. Therefore, the interference of state officials in the implementation of the constitutional rights of the owner should be proportional to the degree of social danger of the offense.

In the case of Sporrong and Lennart Sweden (Sporrong and Lonnroth v. Sweden)" the European Court has formulated the important principle of proportionality of state interference in private relations: "...the Court must determine whether observed a fair balance between the demands of public interest and necessary for the protection of fundamental rights of the individual..."

In turn, a solution that is inadequate to the degree of social danger of the offense is contrary to the principle of the rule of law, and hence the Constitution of Ukraine.

Appeal in court the decision on temporary detention of the vehicle

The Constitution of Ukraine and the Code of administrative procedure of Ukraine stipulate that in case of violation of rights, freedoms and interests of physical and legal persons, the person for their protection may apply to the court.

Thus, according to the third part of article 2 of the Code of administrative procedure of Ukraine the court while examining the actions or inaction of the subject of authority checks are accepted if they:

• on the basis, within powers and in the way provided for by the Constitution and laws of Ukraine;
• using powers with the purpose for which the authorisation is granted;
• justified, fairly, reasonably and in good faith, with respect for the principle of equality before the law;
• proportionally, in particular with the necessary balance between any adverse consequences to the rights, freedoms and interests of man and objectives, the focus of this decision.

Consequently, the exercise by employees of traffic police of their powers should be taken into account the criteria of lawfulness and reasonableness of decisions.