If the culprit of an accident avoids filling out the European protocol or knowingly enters incorrect data, is it possible to hold him accountable through the court? - Lawyer in Samara and Moscow

Important change from May 1, 2019

The main risk of failure to fulfill this obligation under the European protocol before the specified date was that this gave the insurance company the right to issue recourse to the culprit.

But as of May 1, 2019, this consequence for the guilty driver was abolished. The corresponding Federal Law No. 88-FZ was issued, as a result of which the corresponding subparagraph “G” of paragraph 1 of Article 14 in the law On Compulsory Motor Liability Insurance became invalid. Therefore, if your particular insured event in the form of an accident occurred after May 1, 2021, and you missed 5 working days to notify the insurance company about this, then the recourse will be illegal.

Compensation for damage under the European Protocol in 2019

As mentioned above, the amount of damage when drawing up a European-style protocol should not be significant, namely, not exceed the amount of 100 thousand rubles. If a visual inspection, assessment by an expert and other professional persons indicates that the damage is estimated at a large amount, then it is necessary to resort to registering the accident in the presence of traffic police officers.

What kind of law?

So, if the accident was registered according to the European protocol, then both the culprit and the victim are still obliged in 2021 to send each their notice to the insurance company within 5 working days. This is regulated by the Federal Law “On Compulsory Motor Liability Insurance”.

If the victim does not do this, this will not be a basis for refusing the culprit. But if the culprit does not provide such a notice, then he was previously subject to recourse - that is, the victim received a payment, but then the insurance company recovered the entire paid amount, up to 100 thousand, from the culprit.

2. In case of registration of documents about a road traffic accident without the participation of authorized police officers, the form for notification of a road traffic accident, filled out in duplicate by the drivers involved in the road traffic accident of vehicles, is sent by these drivers to the insurers who insure their civil liability , within five working days from the date of the traffic accident .

And here is an excerpt from the Federal Law “On Compulsory Motor Liability Insurance” on the right of recourse from the insurance company to the culprit of an accident:

1. The right of claim of the victim against the person who caused the harm in the amount of the insurance compensation provided to the victim is transferred to the insurer who has provided the insurance compensation, if: .... g) the specified person, in the case of processing documents about a road traffic accident without the participation of authorized police officers, did not send to the insurer that insured his civil liability a copy of the notification form about a road traffic accident completed together with the victim within five working days from the date of the road traffic accident transport accident;
(subclause no longer in force as of May 1, 2021)

Conditions for registration of road accidents according to the European Protocol in 2019

Undoubtedly, any motorist who is involved in a minor traffic accident will not want long clarifications and proceedings in the presence of traffic police officers, who have the right to issue a fine for violating traffic rules.

This right to independently document the incident is given to each of the participants in the accident, and it significantly saves the time of both car owners. The European protocol itself was introduced with the aim of relieving traffic on roads.

This method of issuing a notification about an accident saves the fact that traffic participants quickly draw up a protocol indicating the circumstances of the incident, and then leave the scene of the accident without interfering with the rest of the traffic.

But despite the fact that the law on the Europrotocol is quite beneficial, not all motorists trust it. The fear of being left without payment under compulsory motor liability insurance is reinforced by ignorance of the registration procedure, as well as the conditions under which such a protocol is drawn up. Consequently, car owners call traffic police inspectors and wait for them to formalize everything according to the protocol, while occupying the roadway and disturbing other drivers by creating traffic jams.

Drawing up a notification according to the European standard protocol is possible only if all the conditions listed below are met:

In a car accident, two vehicles were damaged and the damage was not severe. If three cars are involved in an accident, then such a report cannot be drawn up and you will have to wait for the traffic police.
Damage was caused exclusively to vehicles, and the participants in the incident themselves were not physically harmed. This condition also applies to pedestrians, i.e. there should be no casualties.
The property being transported by motorists at the time of the accident was not damaged, as were buildings, poles and monuments.
Car owners must be insured by a compulsory insurance policy. A valid “Green Card” policy is allowed if a domestic “motor citizen” is not issued.
Both participants have similar opinions about what happened and do not want to call the traffic police officers to the scene.
If there are disagreements, then issuing a notification is possible only if one of the participants in the accident has GLONASS system data.
Upon visual inspection of the damage to the victim’s vehicle, the damage does not exceed 100,000 rubles.

Actions in case of an accident before registration of the Europrotocol

Since even a minor incident on the road is considered an accident, in the case of documenting a road accident according to the European protocol, car owners are required to act in accordance with traffic regulations. The procedure for drivers’ actions is the same, regardless of the nature of the damage and the nature of the damage caused or received as a result of a collision between two cars.

Of course, the responsibilities of the culprit under the European Protocol are much greater than those of the victim, but both drivers must comply with the following sequence of actions:

Be sure to stop and turn off the engine of your car.
Put up emergency signs and turn on lights so that there are fewer casualties in an accident.
Make sure that the injured party did not suffer injuries or physical injuries. As mentioned above, if the driver’s health has been affected, then compulsory motor liability insurance under the European Protocol is not drawn up. In this case, if there are no victims, it is necessary to discuss the registration details with the victim and offer to record the incident independently, without attracting the attention of the traffic police.
The new conditions for registering an accident under the European Protocol are such that participants do not have to share their views on how to register an accident on their own. But we must not forget that disagreements will not be taken into account only if the driver who decided to issue a European Protocol in case of an accident has a built-in GLONASS system, which is capable of providing evidence of the incident.
If both participants in the accident share an opinion about the insignificance of the incident, then registration under the Europrotocol is possible.
Both drivers need to record traces of the incident using a camera or phone. Be sure to take a photo of the braking area, broken parts of the body, as well as state signs of both vehicles.
Next, you need to fill out a notice, the form of which is issued by the insurer when purchasing an MTPL policy. One copy of the accident notice is taken and filled out by both participants, each in its own column.

Actions of the culprit of an accident under the European Protocol in 2021

If, as a result of your carelessness, other vehicles became participants in a traffic accident and suffered as a result, then the initiative to independently record the accident should come from the culprit.

But before you offer the injured driver to independently fill out the Europrotocol form, you need to remember the requirements that apply to this type of notification. Therefore, if all conditions are met, then the participants in the accident must go to the insurance company and provide the insurer with their copy of the notice as soon as possible.

When drawing up this type of accident report, it is the accident initiator who needs to do everything correctly and quickly, because if you do not provide the Euro protocol, the fine to the culprit of the accident will be equal to the amount that the insurer will pay to the victim. In order for the insurance company to continue to represent your interests in the event of an accident, your auto insurance policy must be in effect at the time of the accident.

If there is no compulsory motor liability insurance policy, the European accident report will not be issued, and if the participants do issue it, then in any case, the culprit will have to pay compensation to third parties from their own funds. But not only the current “motor citizen” guarantees that the culprit will not be left without help from the insurer.

So, if the culprit did not provide the Europrotocol to his insurance company, then responsibility for compensation for damage also falls on him. The main thing that the initiator of the incident must do is to notify his insurer about the incident by providing a notification form for this purpose.

The injured party in any case, i.e. regardless of whether the culprit provides the protocol or not, he will receive due compensation from the company protecting the interests of the guilty party.

Why is the law on 5 days to provide a European protocol so categorical?

Although such an obligation of the culprit to provide a European protocol within 5 days looked like an obvious loophole for insurance companies to enrich themselves at the expense of recourse to the culprit, there is still some logic here. The fact is that when registering an accident using a European protocol, police officers are not involved, and the recording of the accident, its nature, circumstances and damage is carried out by the participants themselves.

Due to the absence of police officers during road accidents, the risk of fraud with false road accidents increases significantly. According to the Civil Code, the victim has the right to apply for payment within the general limitation period (yes, the law “On Compulsory Motor Liability Insurance” explicitly states a period of 15 days for notification of an accident, but this obligation of the victim does not affect anything), which is 3 years. And, if the victim applies after 3 years, then it will be almost impossible to establish by the nature of the damage their involvement in this particular accident. And if traffic police officers had been involved, they would have recorded the damage.

How to properly file a notification in case of an accident in 2019

Having come to a mutual agreement regarding the independent recording of a traffic accident, each of the participants must fill out their side of the notification.

The filling procedure also has certain rules, namely:

Use only a ballpoint pen. Gel ink or pencil will not work, because in the first case they can be smudged, and in the second they can be erased.
For the culprit of an accident, the European Protocol and its correct filling out are more important than for the victim, therefore, it is necessary to ensure that the second participant in the accident does not enter unnecessary information and indicates the circumstances of the incident similar to yours.
The nature of the damage and other circumstances of the incident must be indicated in detail, but using terms such as scratches, chips, dents, etc.
If the participants in the incident have doubts about the correctness of the damage assessment, they have the right to contact an independent expert or emergency commissioner. Often, hidden damage that was not identified during the preparation of the report will not be restored at the expense of the company of the at-fault insured.
After filling out the front side of the European standard protocol, it is signed by the participants in the accident and divided in half, each with their own side. Signatures are placed not only on their own parts of the form, but also on the side of the culprit/victim.
If the victim refuses to sign the form, then you will have to resort to the help of traffic police officers, who will draw up a protocol according to the standard.
If the participants in the accident have no claims against each other, then after they have drawn up the European Protocol according to the rules, observing and filling out all the points specified in it, it is necessary to notify the insurance company about the accident, since it is they who will make payments to the victims.

What to do if you did not have time to submit the European protocol within 5 days?

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If you are the culprit and did not have time to submit a European report to the insurance company within 5 days, then there are chances to challenge the recourse, but they are very small if the accident occurred before May 1, 2019. The fact is that any law must be based on logic and a motivated part introduction of this or that rule. And, if you prove that the nature of the victim’s injuries is beyond doubt (of course, this can only happen if the victim himself contacted the insurance company within a reasonable time), then the court can take this into account and reconsider the decision on recourse.

But the chances of such an outcome if you have not provided the European protocol within 5 working days are extremely small, since, firstly, you will have to prove the opposite of what is clearly stated in the legislation, and, secondly, such a judge’s decision may entail the abolition of this very interpretation of the law, and not every judge will take on such responsibility.

And yet there are several court decisions in judicial practice when the recourse was won. One of them is based on the fact that the liability of both the culprit and the victim was insured by the same company (Ingosstrakh), and therefore the insurer’s claim was rejected on the basis that in this case the latter did not bear any risks and nothing It wouldn’t have changed if the culprit had presented the European protocol on time.

If the person at fault for the accident did not send the European protocol to the insurer

With the European protocol, where the necessary fields are filled in in the road accident field and other mandatory fields, and there are signatures of both participants, you don’t need to do anything special. The participant only needs to fill out the second side of the sheet and send his copy of the notice to the insurance company.

If the person fails to comply, the insurance company may seek recourse. What it is and in what cases it is used, we will tell you further.

Attention!
The European Protocol gives the right to compensation only in a situation where both parties have a valid policy.

Regression and its consequences

Recourse is usually understood as a situation in which, instead of the person responsible for the accident, compensation is paid by a second person. The insurer that paid the compensation may demand a refund in cases where the client does not comply with the agreement.

In Art. 14 of the MTPL act specifies cases of recourse and the establishment of an insurance company to announce it.

A claim can be filed in court demanding the recovery from the culprit of funds transferred for his insured event to compensate for the damage of the injured party in cases where a person:

did not submit its copy of the protocol within five days;
did not submit the vehicle for examination;
began repairing the vehicle before the inspection was completed;
sends the car for disposal until the verification procedures are completed.

Important!
The entire amount of costs, as well as the insurer’s legal costs, will have to be compensated under recourse.

What else could there be a recourse from the insurance company under the European protocol?

Yes, the failure of the culprit to submit his copy of the European protocol was abolished. But there are a number of other conditions, if not met, the culprit may be billed in the amount paid to the victim:

if it is proven that the harm was caused intentionally in the presence of harm to the health or death of the victim (if you deliberately crashed into the victim);
if at the time of the accident the culprit was drunk;
if the culprit was not included in the MTPL policy or did not have the right to drive the car he was driving at the time of the accident;
the culprit repaired or disposed of the car within 15 days after the accident without providing it for inspection by the insurance company;
if the diagnostic card has expired - only for passenger taxis, buses, trucks with more than 8 seats or vehicles equipped for the transport of dangerous goods.

What should the culprit of an accident do after completing the Europrotocol?

The completion of the recording of a road accident occurs after both participants in the accident provide their copies of the notices to the insurers. If, in the case of a victim, he has the right to turn to both his own and the insurer protecting the interests of the culprit of the incident, then the latter must notify the insurance company about what happened.

If the culprit has not passed the Europrotocol, then he risks that the insurer will refuse to pay compensation for him to the injured car owner and the costs within the established limit will fall on the shoulders of the initiator of the accident.

It is also worth considering that at the time of the accident, the victim’s car could have suffered damage for an amount greater than that covered by the European protocol, which means the injured driver has the right to demand the missing amount from the culprit for repairs. To avoid such situations, you need to take a receipt from the victim stating that he has no claims against the culprit regarding damages that can be identified after drawing up the report.

What should the driver do?

An accident is a stressful situation, but the driver must quickly pull himself together and perform a number of simple actions:

Stop the car. Regardless of the surrounding circumstances, you cannot continue moving. You need to leave the car and roughly assess the damage.
Put up a warning triangle.
Record on a photo or video camera the scene of the accident, damage, license plates and brake marks.
Obtain personal information of witnesses: full name, address, telephone number. It is advisable to ask for written testimony.
Fill in the form.

How to fill out the Europrotocol

The Road Accident Notification form itself is issued by the insurance company when applying for a policy, but if the form is left at home, you can download it from the official website and print it out.

Filling out the paper takes place in two stages. The circumstances of the accident are described on the front side, and additional information is reflected on the back side.

It is necessary to fill out 2 forms (according to the number of participants in the accident).

You must enter in the form:

The scene of the accident. If we are talking about a route, you must indicate the name and kilometer.
The exact date.
Number of damaged vehicles (one or two).
Number of victims (none).
Inspection (not carried out).
Information about material damage. If a personal item in the car, for example a laptop, is damaged, it is also indicated in the document to receive compensation.
Contacts of witnesses.
Registration of traffic police officers (not carried out).
Information about the vehicle.
Driver data.
Information about the insurer.
Numbers and validity periods of OSAGO.
First strike diagram.
Detailed list of damages.

Next, you need to describe the accident and draw up a diagram. It marks the section of the road where the accident occurred, including street names, house numbers, markings, signs, and traffic lights. Next, the vehicles (A and B) are drawn with rectangles, highlighting the direction with arrows, and the impact with a cross. It is useful to indicate skid marks, potholes and other details related to the accident. Below each symbol is given a description.

At this stage, the front side of the form is completed. On the back, you must indicate the circumstances of the accident from the driver’s point of view and the person driving at the time of the accident. They also describe damage to personal belongings and note the presence of photo or video recording.

Any corrections are confirmed by the signatures of both parties.

Reasons for refusal of payments

more than two participants in an accident;
There are people injured;
The culprit has not been identified.
The protocol was declared invalid:

The form is signed by only one participant.
At least one of the signatures is missing: signatures are placed twice on the front side of the paper. On the back - once.
The information is unreadable. This applies not only to handwriting, but also to defects: drips, stains.

The MTPL policy is unsuitable: expired, counterfeit or missing.
The testimonies of the participants differ.
The person at fault for the accident is not included in the policy.
Information is incomplete (empty columns).
The information is incorrect (for example, the wrong number on the license plate). Sometimes the insurance company gives the opportunity to correct the mistake, but it is more profitable for it to invalidate the document.
Corrections and errors are the most common reason for failure. The reliability of the information and the correctness of its entry are also important. The company may refuse even due to a grammatical, punctuation error, etc.
Violation of the deadlines for notifying the insurance company and obtaining the necessary documents (insurance companies often take advantage of the fact that people cannot prove the fact of timely contacting the insurance company because they do not have marks of acceptance of documents).
damage that is not subject to compensation. This category includes moral damage, non-insurable cases (accidents involving a training vehicle, intentional accidents, etc.), situations where damage assessment is impossible.
did not send the Notification form (Europrotocol) to the insurance company within the deadline (5 days)

Recommendations for filling

Claims are made for incorrectly completed documents. Problems often arise if the driver:

fills out the form with a pencil;
writes illegibly (when the handwriting is peculiar, it is better to use block letters);
makes mistakes, blots (if there are any, it is advisable to take new paper);
leaves empty fields;
uses abbreviations for passport data.

You should familiarize yourself with these requirements before starting to fill out the document.

How does the traffic police investigate an incident?

If the inspector considers that additional measures need to be taken to resolve the issue of qualification of actions and the degree of culpability of participants in a road accident, the material will be sent to the local traffic police department for accident investigation.

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Next, a special group of employees is appointed to analyze the circumstances of the incident. Participants are notified in advance of the date and time when a specific situation will be dealt with, if this was not done directly at the scene of the accident.

Each specific case uses its own methodology for investigating an accident, but there are some points that any driver needs to know.

The investigation is preceded by a study of case materials collected at the scene of the accident and an interview with eyewitnesses. The main object of the investigation at the preliminary stage is the documents recording the fact of the incident. Typically, it takes 3-30 days to review written evidence.
Often, to restore the mechanism of an accident, it is necessary to conduct an examination, for example, traceological or auto technical. If inspectors involved in the analysis of road accidents avoid ordering examinations, explaining this by the workload of the service, the interested driver should insist on having them carried out.
During the analysis, the case officers clarify the details both on the basis of written documents and oral conversations with each driver. Participants in the accident may be invited simultaneously or heard separately. In the first case, a kind of confrontation is carried out, since giving false testimony in an accident is a fairly common case.
Often inspectors do not allow drivers to familiarize themselves with the case materials and do not show a diagram of the incident. On the one hand, this is a way to push the participants in the accident to independently remember the nuances of the accident and contributes to an objective consideration of the case, and on the other hand, it is a veiled method to help the “liked” driver.

As a result of the analysis of the car accident, the group’s inspectors draw conclusions about the presence of elements of an offense in the actions of the participants in the accident, and determine its nature. Based on the findings, a decision is made on a specific incident.

Since no driver is immune from troubles on the road, if a car accident occurs and you are sent to the traffic police to investigate the accident, you need to know how to behave. You should not leave the solution to a serious issue to chance; it is better to carefully prepare for the investigation and think about how to prove your innocence in an accident and defend the correctness of your vision of what happened.

Participants in an accident have the right to familiarize themselves with all documentation on the case. You can view the available materials in advance. To do this, you must ask the investigation officer to provide all the documents drawn up by the inspector during the accident. In addition, the testimony of interviewed witnesses, video and photographic materials should be studied.

When preparing to analyze an accident, a diagram of the accident scene may be useful. You should not rely on your memory, since many drivers are under stress at the time of the incident and may not remember essential details: the location of signs, the position of the car relative to the road infrastructure, markings on the road, the location of transport stops.

During the analysis, participants in the incident are granted the following rights.

If necessary, the driver can ask the investigator to appoint an examination of the case or request certificates from the relevant services that control the lighting and condition of the road surface at the scene of the accident.
A foreigner must be provided with an interpreter.
Present any evidence taken/collected at the scene of the incident: photographs, video footage from a DVR or mobile phone, explanations of eyewitnesses, and also demand that they be included in the material.
Submit petitions.
Conduct audio recording during the analysis of an accident.
If you disagree with the result of the investigation, appeal the decision.

Important: the appeal period is counted from the date when the driver received a copy of the decision. Therefore, you should not sign the document in the past date.

When analyzing an accident by traffic police officers, especially in difficult cases, legal assistance in road accidents will be useful. It is advisable to invite an experienced and competent lawyer to the scene of the incident. As a rule, in serious car accidents there are victims, the cause-and-effect relationship in the accident is not determined, or the drivers are mutually guilty of committing a traffic offense.

If you are not present during the investigation

The law does not oblige drivers to participate in the investigation of accidents. If the second participant in the accident is not included in the car accident investigation team, the case is considered without him.

However, lawyers recommend that drivers not ignore the review procedure. Often, motorists, confident in their rightness and innocence, do not come to the accident analysis group, and then are unpleasantly surprised by the result of the investigation. It happens that a previously innocent participant is recognized as a guilty party and held accountable.

In personal presence, the driver has the opportunity to defend his position, provide evidence and evidence. It happens that a participant in an accident cannot come to the accident investigation for reasons beyond his control. In such situations, the interested driver can request a postponement of the date of consideration of the case, indicating objective reasons.