By the resolution on the administrative offence, an administrative penalty in the form of a fine of 10 MCI was imposed on the driver for committing an offence under Part 1 of Article 600 of the Code of the Republic of Kazakhstan on Administrative Offences, namely for failure to give priority to pedestrians or other road users. However, in this case, the pedestrian was not crossing the roadway. He was at a distance from the intersection, was not moving towards the intersection and was not crossing the roadway at the time the car passed. The driver did not agree with this resolution and filed a complaint with a specialized administrative court, stating the following grounds for cancelling the resolution:
1. There was no administrative offence.
From the ruling on the administrative offence case it followed that "at the intersection of streets, the driver, when turning left, did not give way to a pedestrian."
In accordance with paragraph 1 of section 13 of the Traffic Regulations of the Republic of Kazakhstan, when turning right or left, the driver gives way to pedestrians crossing the roadway in the direction of his movement, onto which he is turning.
Clause 3 of Section 3 of the Traffic Regulations stipulates that pedestrians cross the roadway at pedestrian crossings, and if there are none within sight, at intersections along the line of sidewalks or shoulders.
According to subparagraph 53) of paragraph 2 of section 1, a sidewalk is a part of a road intended for pedestrian traffic, adjacent to the roadway or separated from it by a lawn.
The pedestrian was not crossing the roadway. He was standing on the lawn away from the sidewalk, away from the intersection, and was not moving towards the intersection with the purpose of crossing the roadway. Therefore, the driver believed that he had not committed an administrative offence, and the fact that he had not stopped and had not let the pedestrian pass, who was standing away from the intersection and had not even stepped onto the roadway, was not a violation of the Traffic Regulations.
2. There was an event of another administrative offense committed by another person
The driver managed to get a copy of the video recording from the CCTV cameras of a nearby store. The recording showed that the pedestrian crossed the road in an unauthorized place after the car passed. In accordance with Part 1 of Article 615 of the Code of Administrative Offenses, failure by pedestrians and other road users to comply with the requirements established by the rules for ensuring road safety entails a fine of 5 MCI. Thus, the police officers should have brought the pedestrian to administrative responsibility, not the driver, since there was an event of another offense committed by another person.
3. When the ruling was made, the video recording of the offense was not assessed
According to paragraph 5 of the Instructions on the use of technical means to record the facts of committing criminal and administrative offenses and the actions of employees of the internal affairs bodies of the Republic of Kazakhstan employees of the internal affairs bodies are provided with video recorders when performing official duties.
In accordance with paragraph 4 of the said Instruction, video recorders are intended for audio and video recording of the surrounding environment, actions of citizens, as well as the process of actions of police officers during the performance of official duties, preventive measures and special operations, in order to ensure the collection of a high-quality evidence base when preventing offenses. Since police officers performed their official duties, they were obliged to record everything that happened using video recording equipment.
When issuing the contested decision on the case of an administrative offence, the police officer did not conduct an examination of the video recording by means of video recording and did not give an appropriate assessment of the circumstances of the alleged offence.
Consequently, the decision to impose an administrative penalty was unlawful due to the lack of properly collected evidence indicating that the driver did not allow the pedestrian to cross the roadway legally.
Thus, on the basis of subparagraph 1) of part 1 of article 741 of the Code of Administrative Offenses, proceedings on the case of an administrative offense could not be initiated, and those initiated were subject to termination due to the absence of an administrative offense.
Based on the violations indicated, the driver asked the court to overturn the ruling on the administrative offence case and to terminate the proceedings on the administrative offence case due to the absence of an administrative offence event.
When considering the case, the court concluded that it did not find evidence of the driver committing an administrative offence. The video recording from the store's surveillance camera presented by the applicant showed that the pedestrian was crossing the road not at an intersection, but in an unauthorised place. In this regard, the driver did not violate paragraph 1 of Section 13 of the Traffic Regulations. In accordance with subparagraph 2) of Part 1 of Article 741 of the Code of Administrative Offences, the absence of elements of an administrative offence is a circumstance excluding proceedings on the administrative offence case. Therefore, the court overturned the decision to impose an administrative penalty in the form of a fine, and the proceedings on the case were terminated.