Wednesday, 19 December

The experts say that automatic control on the traffic against the backdrop of current legislation is unlikely to solve the problem of accidents, but we should expect an increase in the number of lawsuits.

If a month ago the police didn’t know exactly when the automatic fixation of violations with the help of special devices would work on the roads, tentatively calling the end of this ‒ the beginning of the next year, now the first “letters of happiness” are promised less than in a month, from December 17. It is on this day that the state standard should come into force, in which the requirements for such equipment are spelt out, and with which this process will actually be allowed.

However, it is difficult to say whether this will become an effective safeguard against violations or entail the creation of new, or revival of the old corruption schemes. To answer the question, there is a significant reduction in the number of accidents. Therefore, Opinion decided to ask the experts, if they consider such actions to be correct and what exactly needs to be done in order to restore order on the roads, without mocking law-abiding motorists.

So, after numerous accidents, once again they set about reducing the level of accidents, tightening the screws to the drivers. A little earlier, a package of so-called “automobile bills” was sent to the Verkhovna Rada, which, if adopted, should increase the punitive measures for violators-motorists. Now, in addition to the fact that car owners are waiting for the launch of the autofixation system for violations, the Cabinet of Ministers has submitted another bill, No. 9244, on the distribution of money that will come from fines, paid by drivers as a result of automatic fixation of violations.

Therefore, there are three important questions to which I would really like to receive the answers. First: will all these measures lead to the expected result (a decrease in the number of accidents, first of all with fatal consequences, and economic losses from them)? Second: if they don’t, then what should be done to reduce the death rate on the roads and not just declare the fight against it? Finally, the third: how the police will act if there are no predictable revenues from fines (and there are such assumptions), would this mean that “letters of happiness” were received by not guilty car owners?

How will they count chickens that were not hatched

The draft law “On Amendments to the Budget Code of Ukraine regarding the receipt and direction of administrative fines for violating the law in the field of road safety” was developed in the Ministry of Internal Affairs and registered in parliament under No. 9244. In fact, if adopted by the Verkhovna Rada, the proposed algorithm is the “counting of chickens that were not hatched”. This, according to the experts from the Ministry of Internal Affairs, has a quite material dimension: the bill is accompanied by a table, calculating the expected financial revenues, as a result of fines that car owners must pay the next year, as well as in 2020 and in 2021.

In the department of finance and accounting policies of the Ministry of Internal Affairs they believe that in 2019 the system will have to write out 2,54 billion UAH fines; in 2020 and 2021 the collected amount is planned to be almost doubled, that is, at 4,8 billion UAH. One way or another, but guided by these calculations, it can be concluded that by adopting this bill they want to legalize plans for fines. Excuse my naivety, but if the drivers are imbued with the measures applied and everyone will drive according to the rules, then what will the police do? Or if they just do not reach the project amount? Will they invent mechanisms for the imposition of fines in every possible way? There already were cases, when the “letters of happiness” came to those, whose cars did not even leave the garage on the day, when traffic violations were allegedly “fixed”…

In the explanatory note to the bill, signed by the Minister of Internal Affairs Arsen Avakov, it is said that this document was developed “in order to implement the tasks and activities, defined by the State Program for Improving Road Safety in Ukraine for the Period up to 2020”. Further, it is specified that the project “is aimed at distributing revenues from administrative fines for administrative offenses in the field of traffic, fixed in automatic mode” to the general and special funds of the state budget so that the police could implement measures “of introducing, developing, restoring and operation of the system for fixing offences in the field of road safety in automatic mode, which will help reduce the mortality rate and traumatism on public roads, as well as a decrease in the annual socio-economic losses of the state from road accidents”. What is interesting, according to officials from the Ministry of Internal Affairs, this bill “does not require public consultation” because, as he says, it does not contain any corruption risks.

Фото- та відеофіксація порушень ПДР: автовласників хочуть змусити фінансувати придбання нових радарів

“If the car was not driven by the owner,” lawyer Oleksandr Serhiyenko, director of the research and analytical centre “City Institute”, explains to Opinion, “The Cabinet of Ministers by its decree actually forces the owner to ensure that the violator confesses to the police. This is important because, in accordance with Part 2 of Article 61 of the Constitution of Ukraine, the legal responsibility of anyone is exclusively individual. In addition, in December 2010, the Constitutional Court made a separate decision on the case of administrative responsibility in the field of road safety, explaining the principle of proof of guilt and presumption of innocence. This decision says that only the violator can be brought to responsibility, and the owner of the car can be brought only when his guilt is proven.”

The Code of Ukraine on Administrative Offenses (Article 258) states that in the case of “detection of an administrative offense in the field of the road safety, fixed with the help of special technical equipment operating in automatic mode… a protocol on an administrative offence is not drawn up, and a ruling on the case of an administrative offence shall be imposed without the participation of a person”, which is brought under this responsibility. And now the rhetorical question: will automatic photo/video recording of traffic violations give at least some guarantee that it’s the owner of the car behind the wheel? And one more thing, also rhetorical, did the initiators of the introduction of such a mechanism for the fight against violators of the traffic rules know about it? And the next, in that case, why is all this done that way?

Keep up with the Joneses

“In general, the introduction of a system of automatic photo and video recording of violations of the traffic rules is a progressive step,” continues auto-lawyer Stanislav Shevchenko. “Usually, all means of automatic fixation work to fix two types of offenses: exceeding the speed, allowed on a certain section of the road, and continuing traffic to the prohibitory signal of the traffic light (red and yellow ‒ author’s note). Thus, in the countries, where the following systems were installed, according to the Internet, the accident rate in general, and the death rate as a result of traffic violations, in particular, has significantly decreased. We are talking about a decrease of 30-60% in countries such as the United Kingdom, Australia and Canada.”

In the post-Soviet space, Stanislav Shevchenko notes, this system is being implemented quite successfully primarily in the Baltic countries, as well as in Armenia and Georgia. “However, it was not without corruption scandals,” said the expert. “For example, in Armenia, such a system began to be introduced since 2011. Its installation, development, and maintenance were carried out by a private company ‒ Security Dream LLC. Revenues from the collection of fines for traffic violations, recorded in automatic mode, were also distributed between the traffic police and this company, and in an interesting ratio: in 2011 it was 70/30, in 2013 it was 50/50, and in 2017 ‒ 10/90%. In addition, under agreements between the traffic police and Security Dream LLC, the police were also obliged to compensate for all the expenses of a private firm incurred in maintaining and developing the automatic fixation system. According to the law enforcement agencies of Armenia, Security Dream LLC has entered into contracts for the provision of various services, allegedly aimed at developing a network of automated systems with another private firm, and the traffic police paid for them, although the management of both firms denies this.”

The introduction of the autofixing of traffic violations was still held back not only because of the lack of necessary regulatory documents but also because of the search for funds for its purchase and equipment. In Kyiv, where they intend to install 350 fixed and 50 mobile complexes, they have already found a private investor, who is interested in this project. Therefore, we have the first limited liability company ‒ “Safe Roads of Ukraine” ‒ which is ready to invest its money in the purchase of equipment for an automatic violation fixation system (AVFS). These devices, the police explains, automatically record speeding on metropolitan roads and send data via a secure communication channel to the city data centre of the Ministry of Internal Affairs/National Police, whose employees ‒ after the initial processing of information ‒ identify the driver and impose penalties. However, how they identify it is not yet clear.

According to the director of the company Denys Oleksyuk, the equipment of Kyiv with the AVFS device, which approximately requires $ 23.7 million, will be held on the terms of a public-private partnership. The funds of a private investor will be used to install cameras and hardware and software complex. But the first deputy chairman of the Kyiv City State Administration Mykola Povoroznyk notes that they will not finance this project from the city budget ‒ the private company will do it all for its own and raise funds. As for the participation of the state in a public-private partnership, it turns out that the compensation of the funds contributed by the investor will be made at the expense of revenues from fines for violations, which will then be recorded automatically. They want to go the same way in Lviv and Odesa.

What causes a high level of accidents?

Фото- та відеофіксація порушень ПДР: автовласників хочуть змусити фінансувати придбання нових радарів

In order to develop a truly effective mechanism to combat the level of accidents, it is necessary to clearly define its causes. According to Anton Gura from Kyiv, a participant in the Pitbull Hunting Movement ‒ night hunters for drunk drivers, they talk about a complex of reasons leading to tragedies on the roads. “Firstly, a driver’s license is easily accessible ‒ you can get it for 4 categories for 400 USD, that is, drivers leave for the road, who simply do not know how to drive and do not know the traffic rules,” Anton Gura explains to Opinion. “Secondly, the traffic rules, which are actually written with the blood of the victims, are banally ignored by many participants, considering themselves to be very skilful drivers and overestimating the capabilities of their cars.

This is complemented by the lack of control on the roads, complete indifference and unprofessional approach to the problem of the police, and weak punishment for drivers, because those, who do not understand it themselves, can be taught only by heavy fines, as they do abroad, where you can pay 500 USD for a cigarette butt, throwing out the window. For example, in Poland, the first project with auto-fixing of violations on the roads was implemented in Poznan. When I got there, I was surprised with the number of cameras on the roads and the fact that there was absolutely no auto-patrol. The cameras were literally on every pillar, 6 pieces on each, which look in different directions. And I saw how the Poles behave: even if the road is empty, the car travels 2 kilometres to the one, equipped with reversal signs, but the driver does not break, because he or she knows that will be punished.”

The factor, first of all, decisive both for the whole road accident and for the fatal accident, is lack of awareness by the driver that he or she is the owner of a source of increased danger, adds lawyer Andriy Vigirinsky to the reasons, already mentioned. “If we are talking about route transportation,” he explains in the comment to Opinion, “This could be the operation of a vehicle in inappropriate technical condition, disregard of the rules for admitting drivers of vehicles, who perform route transportation within and between settlements, to work, etc. No one forces drivers to exceed the speed, to make dangerous changes in the trajectory of movement, other manoeuvres. This is usually due to their overconfidence and hopes that they will get away with that again. And if it did not, then, unfortunately, it is too late to even look for the guilty. Therefore, preventive measures are needed.”

Фото- та відеофіксація порушень ПДР: автовласників хочуть змусити фінансувати придбання нових радарів

According to the auto-activist Anton Gura, such a preventive measure will be the autofixation, which is able to cope with the problem, because it will punish those, who still avoid punishment for violations. “And in order to “fix” something there, one will have to get into the system, and only a limited circle of people will be able to do it,” notes Anton Gura. “That is, there is no one to argue with autofixing: there are violations, there is a fine. If you do not pay the fine, there would be a penalty, executive service, the arrest of the car, and the ban on travelling abroad. Everything is very simple, we do not need to invent something new, there is a ready-made debugged scheme, which is actually very successful. Personally I, being abroad, got into the lens of such a camera on the roads several times, and, in order not to have big problems, I paid the fine very quickly.”

We cannot do without reliable statistics on the causes of accidents

Фото- та відеофіксація порушень ПДР: автовласників хочуть змусити фінансувати придбання нових радарів

However, human rights activist Vadym Volodarsky, who works in the field of protecting the rights of drivers, believes that autofixation will not work in the form, provided by law at the moment. “Again, because of the same principle of responsibility, not the one, who violated, but the owner of the vehicle,” Vadym Volodarsky says, commenting on the problem, and refers to the already mentioned decision of the Constitutional Court from December 22, 2010, which recognized this principle as unconstitutional. “Based on constitutional norms and this decision, vehicle owners will be able to appeal such decisions to the courts. And believe me, they will do it.”

As for the reasons for the high level of accidents, then, in the opinion of the lawyer, in order to deal with the accident, it is necessary to clearly understand these same causes. “And we have a long-awaited problem ‒ in our country, in fact, there is no reliable statistics of the causes of accidents,” Vadym Volodarsky says. “Why? Because of the terrible situation in the investigation in cases of accidents and in the execution of administrative violations by patrols. Every case is erroneous, and it’s not just specific fates. The fact is that these cases do not fall into the right section of statistics. For example, a pedestrian jumped out onto the avenue and was hit by the car. Usually, the driver is guilty, and such cases are in the section of statistics “Accidents at the fault of drivers”, and not pedestrian, although, the emergency situation is created by a pedestrian. In addition, in such cases, violations of paragraph 12.1 or 12.3 of the traffic rules often are indicated, and this car accident falls into the statistics section of the “Accidents because of excess speed”, and hence the illusion that a large percentage of accidents are caused by drivers because of excess speed.”

Therefore, in order to determine how to deal with accidents, you need to first get objective statistics on the basis of which you can develop effective control measures. “As long as we do not have reliable causes of accidents, there is nothing to say about adequate measures to combat it,” the lawyer is convinced. “And for this, you must first restore order in the investigation and in the patrol police. It is also obvious that instead of fighting with speed, it is necessary to fight against priority violators. In recent years, drivers generally do not understand what it is, and why it is needed. Meanwhile, it is the violation of the priority and the rules of manoeuvring that provoke emergency situations, including those that are then blamed for speed. And a separate topic is the impunity of pedestrians, both for ordinary violations, and for their recognition as victims in road accidents, which they also provoked themselves.”

One way or another, but a set of measures that should reduce the number of terrible accidents can and should be implemented now. “The most reliable method to protect a person is not high fines or photo/video recording of traffic violations,” Oleksandr Serhiyenko explains, “But engineering and technical solutions that can minimize risks. First of all, this is a separation of oncoming lanes by bump stops, fences and road lighting, clear markings, clear and convenient signs, the same “speed bumps”, airbags, seat belts etc. In civilized countries, huge amounts of money from the budget are spent on this, and in our country they are more often promoted, senselessly inflate fines, earn money on tenders and profit from schemes with the evacuation.”

We need a register of violations, recorded automatically

And the overwhelming majority of our drivers, according to Andriy Vigirinsky, are still not aware of the need to massively follow the traffic rules and therefore we cannot do without certain coercion and the principle of the inevitability of punishment for violations. “These things in Ukraine as a country with a young democracy and a high level of corruption are not categorical,” he said. “And the legal culture will have been developed over the years. It is possible to eradicate this stereotype about the possibility of avoiding responsibility when there is synergy of both technical means of road safety (artificially created islands of safety and slowing down of speed, reasonable speed limits, lighting condition, marking, road surface, etc.) and minimizing the possibility the influence of the human factor on the fixation of the offense and the inevitability of punishment. And even the achievement of this synergy does not guarantee one hundred per cent result, but only minimizes the risks and reduces the number of deaths on the roads ‒ to the indicator that is commensurate with the indicators of other countries.”

Фото- та відеофіксація порушень ПДР: автовласників хочуть змусити фінансувати придбання нових радарів

However, the development and improvement of the automated system for fixing traffic violations, is precisely this coercion, according to the auto-lawyer Stanislav Shevchenko, may provoke the inappropriate use of budget funds, namely in the case of agreements with private firms. The schemes here are well-known ‒ like “for system design” or “legal support” and others. “In the case of budget funds,” he notes, “if anything acquired with these funds cannot be counted in pieces, then there will definitely be a corruption component.”

In order to avoid such a situation, the creation, development, and maintenance of an automated system should be owned and managed by the state, and all the actions for the procurement of equipment and the design and development of an automated system network should take place under strict public control. “We should not allow any purchases without tenders,” Stanislav Shevchenko says. “A positive point will also be the maintenance of an open registry of offences, recorded in automatic mode, with an indication of the amounts of fines. As for the discussion, whether the drivers should be warned with appropriate road signs about the presence of installed systems for automatically fixing traffic violations, I think we should not do this. Otherwise, it will not lead to a decrease in the accident rate, but to the cancellation of the idea of autofixation itself, because they will be attentive and follow the rules on this particular section of the road, neglecting them, where there are no such systems.”

So, on the one hand, more harsh requirements for drivers on our roads ‒ at first glance is a logical process. On the other hand, an attempt to carry out plans for fines through the law looks, to put it mildly, somewhat odd and makes us suppose the return of the schemes for deflation money from car owners. However, there’re no economically motivated calculations on how much the level of accidents will decrease as a result of the adoption of this bill, could be seen in the accompanying materials.

Text by Larysa Vyshynska

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