These are the situations where a driver, while preparing a protocol, disagrees with the inspector’s decision and requests qualified legal help, yet the inspector does not acknowledge the request. In such cases, can the driver push for the protocol and the decision to be annulled in court?
Expert opinion
Sergei Smirnov, lawyer:
Under Article 25.1 of the Code of Administrative Violations, the driver has a right to protection. At the same time, Article 25.5 of the same Code allows legal counsel and a representative to participate from the moment a case regarding an administrative offense is opened. This means from the moment the protocol on the offense is drawn up or the protocol on measures to ensure delivery of the case is issued, which can include a protocol on suspension of driving, detention of a vehicle, or administrative detention of the driver. All of this is outlined in Article 28.1 of the Code of Administrative Violations of the Russian Federation.
It is important to note that the initial protocol can be prepared without a defender present. After the protocol is drawn up, however, the driver retains the right to seek protection. When a request is filed to exercise this right, the driver should be given time to locate a lawyer. In that scenario, all subsequent procedural documents must be prepared in the presence of legal counsel.
However, it is essential to keep in mind that current administrative law only states the driver’s right to obtain defender services; it does not impose an obligation on the state to provide a defender. If the driver delays entering into a contract with a lawyer, the case can proceed without a defender, and such a decision does not by itself constitute a violation of the driver’s rights.
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Therefore, one cannot demand the destruction of the protocol solely for the lack of legal aid. Courts have taken a similar stance in several comparable cases, issuing decisions that do not favor the claimant in such circumstances. This demonstrates a consistent judicial approach on the duty to ensure legal representation and its timing in administrative proceedings.
In summary, while the driver may insist on legal aid and request postponement or accommodation for counsel, the absence of an immediate defender does not automatically invalidate the protocol or its underlying decision. The driver retains the right to protection, but the legality of the protocol does not hinge on the defender’s presence at every stage. The court’s focus tends to be on whether the proper procedural steps were observed and whether the driver’s fundamental rights to defense were respected within the allowed timelines.
Attribution: Code of Administrative Violations of the Russian Federation, Articles 25.1, 25.5, and 28.1. This text reflects official provisions and commonly observed interpretations by courts in relevant administrative cases.