We are talking about those cases when the driver, when drawing up a protocol, does not agree with the inspector’s decision and demands to provide him with qualified legal assistance, but the inspector ignores the driver’s legal request.
In this case, is it possible to insist on the abolition of the protocol and the decision in court?
Expert opinion
Sergei Smirnovlawyer:
– In accordance with Article 25.1 of the Code of Administrative Violations, the driver is entitled to protection.
At the same time, according to Article 25.5 of the Code of Administrative Offenses of the Russian Federation, legal counsel and a representative are allowed to participate from the time a case related to an administrative offense is filed. That is, from the moment of drafting a protocol on an administrative offense or a protocol on the application of measures to ensure the delivery of a case for an administrative offense. This can be a protocol on the suspension of driving, or on the detention of a car, or on the administrative detention of a driver, etc. All this is set out in Article 28.1 of the Code of Administrative Violations of the Russian Federation.
It is important here that the first protocol can be drawn up in the absence of a defender. But after drawing up the protocol, the driver has every right to exercise his right to protection.
That is, when a petition is filed for the need to exercise this right to legal protection, the driver should be given time to look for a lawyer or attorney. In that case, all subsequent procedural documents must be drawn up in the presence of legal counsel.
However, keep the following in mind. Current administrative law only states the driver’s right to enlist the aid of a defender, but nowhere is the state’s obligation to provide this defender.
Therefore, if the driver abuses this right and does not enter into a contract with a lawyer or a lawyer for a long time, the case can be handled without a defender. At the same time, such a decision cannot be considered a violation of the driver’s rights.
***
It is therefore impossible to demand the destruction of the protocol on the basis of the lack of legal aid.
Incidentally, a similar position is taken by the courts: several similar cases have already been handled with a decision not pronounced in favor of the claimant.