THIRD SECTION
CASE OF DUPLENKO v. RUSSIA
(Application no. 71475/11)
JUDGMENT
STRASBOURG
11 January 2022
This judgment is final but it may be subject to editorial revision.
In the case of Duplenko v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Peeter Roosma, President,
Dmitry Dedov,
Andreas Zünd, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 71475/11) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 5 November 2011 by a Russian national, Mr Denis Vitalyevich Duplenko, born in 1988 and living in Akhtyrskiy (“the applicant”) who was represented by Ms Y. Puntasova, a lawyer practising in Krasnodar;
the decision to give notice of the complaints concerning the unfairness and duplication of proceedings to the Russian Government (“the Government”); represented initially by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in that office, Mr M. Vinogradov, and to declare inadmissible the remainder of the application;
the Government’s observations;
Having deliberated in private on 7 December 2021,
Delivers the following judgment, which was adopted on that date:
SUBJECT-MATTER OF THE CASE
1. Following a traffic accident involving the applicant driving a car and a scooter driver on 23 May 2010, on 29 May 2010 the authorities accused the applicant of an offence under Article 12.24 of the Code of Administrative Offences (CAO) for the violation of the Traffic Regulations (TR) resulting in mild or average health damage to the scooter driver.
2. On 3 June 2010 he was accused of (i) violating section 2.5 of the TR requiring a driver, inter alia, to immediately stop his vehicle and secure the incident site; and thereby (ii) committing an offence under Article 12.27(2) of the CAO, punishing a driver’s leaving – in breach of the TR’s requirements – the scene of a traffic accident.
3. After a medical report classified the victim’s health damage as significant, the case under Article 12.24 of the CAO was discontinued, but continued under Article 12.27(2). In the meantime, on 8 June 2010 an investigation was opened under Article 264 of the Criminal Code (CC), punishing a driver’s violation of the TR resulting, by negligence, in serious health damage to another person.
4. In the meantime, the applicant was charged under Article 125 of the CC, for the offence of manifestly leaving a person in danger without assistance.
5. Pursuant to the Plenary Supreme Court’s ruling no. 25 of 9 December 2008 (paragraph 19), where a driver put the victim in a state of danger to his or her life or limb and, in breach of section 2.5 of the TR, did not provide the victim with the necessary assistance while having a possibility to do that, it is appropriate to classify the driver’s omissions under Article 125 of the CC. In that context “manifest” acts of leaving another person in danger include situations where a driver is aware of the danger to the victim’s life or limb and that the latter has no possibility to seek medical aid on account of his/her age, illness or helpless state. The “manifest” nature of the offence obtains where, for instance, that driver left (did not stop at) the scene of the traffic accident, did not contact the medical emergency service or did not take the victim to a medical facility.
6. On 17 June 2010 a district court convicted the applicant under Article 12.27(2) of the CAO and sentenced him to a one-year suspension of his driving licence. The court held that he had left the scene of the accident and had thereby violated section 2.5 of the TR and had committed an offence under Article 12.27(2) of the CAO. The applicant did not appeal. The judgment became final on 29 June 2010.
7. In June 2011 the trial court in the criminal case dismissed the ne bis in idem argument, because Article 125 of the CC punished for manifestly leaving another person without assistance in a dangerous state; Article 12.27 of the CAO punished for leaving the scene of a traffic accident in breach of the TR; the applicant had not been previously prosecuted for failing to provide assistance to the victim.
8. By a judgment of 28 July 2011 the District Court held that the applicant had violated several sections of the TR and had caused the accident thereby committing an offence under Article 264 of the CC. As to the circumstances after that accident, the court convicted him under Article 125 of the CC and held as follows:
“ ... [The applicant] committed the [offence of] leaving a person in danger, that is an act of manifestly leaving that person without assistance while that person was in a state disclosing danger to his health and could not take measures to safeguard it himself ... After the traffic accident [the applicant] left the scene of the accident, thereby violating section 2.5 of the Traffic Regulations, which required a driver involved in an accident to stop his vehicle immediately, to switch on the lights signals and to put out an accident sign ... After the accident, having noticed that [the victim] had fallen down and that his health was in danger on account of the injuries sustained during the accident ... [the applicant] left the scene of the accident, manifestly leaving [the victim] without assistance.”
The District Court sentenced the applicant – for both offences – to a restriction of liberty for two years, suspension of his driving licence for two years and a fine of 30,000 Russian roubles.
9. The applicant appealed arguing, inter alia, that his conviction violated the ne bis in idem principle. On 21 September 2011 the Krasnodar Regional Court upheld the trial judgment in a summary manner.
THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION10. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
11. The applicant maintained his complaint.
12. Referring to Oliveira v. Switzerland, 30 July 1998, §§ 26-27, Reports of Judgments and Decisions 1998‑V, the Government argued that the applicant had been prosecuted for an unlawful act constituting two separate offences (concours idéal d’infractions). He had been prosecuted under Article 12.27(2) of the CAO for leaving the scene of a traffic accident, thereby violating section 2.5 of the TR. Under Article 125 of the CC he had been prosecuted for manifestly leaving the victim without assistance, that is for his omission to act in order to safeguard the victim’s health. A driver could have committed a criminal offence of leaving a person in danger, without necessarily being guilty of the offence under Article 12.27 of the CAO, and vice versa.
13. The relevant principles were formulated in Sergey Zolotukhin v. Russia [GC], no. 14939/03, §§ 79-84, ECHR 2009, and A and B v. Norway [GC], nos. 24130/11 and 29758/11, §§ 105-34, 15 November 2016 (see also Mihalache v. Romania [GC], no. 54012/10, §§ 47-49, 8 July 2019, and Bajćić v. Croatia, no. 67334/13, §§ 25-26, 8 October 2020).
Whether the proceedings were “criminal” and whether the applicant was tried and punished under the Criminal Code for the “same offence” (idem)14. The offence under Article 12.27 of the CAO was punishable by detention. In comparable cases the Court held that proceedings were “criminal” in nature for the purposes of Article 4 of Protocol No. 7 (see Sergey Zolotukhin, cited above, §§ 52-57; Khmel v. Russia, no. 20383/04, §§ 58-63, 12 December 2013; and Korneyeva v. Russia, no. 72051/17, § 53, 8 October 2019). The Court sees no reason to depart from that conclusion.
15. In so far as the criminal conviction of the applicant included two counts, the Court finds that the offence covered by Article 264 of the CC concerned the facts which preceded and were different from the facts relating to the applicant’s subsequent failure to stop at the scene of the traffic accident and his concomitant omission to provide assistance to the victim. The idem element was not present on that account.
16. Both as regards the charge under Article 12.27 of the CAO and Article 125 of the CC the courts focused on the applicant’s violation of section 2.5 of the TR, specifically, in that he had not stopped at the scene of the traffic accident. Manifest failure to provide assistance under Article 125 of the CC could be constituted by leaving the scene of a traffic accident (see paragraph 5 above).
17. In examining the charge under Article 125 of the CC, the courts in criminal proceedings focused on the applicant’s failure to stop at the scene of the accident (see paragraph 7 above), which in the circumstances de facto encompassed his omission to provide assistance to the victim (compare Bajćić, cited above, § 36). Notably, he was prosecuted with reference to his conduct from the moment of the accident to his return to the scene of the accident. This conviction appears to encompass the same factual elements as the one under Article 12.27(2) of the CAO, i.e. leaving the accident scene (see paragraph 5 above).
18. The Court therefore concludes that in so far as the criminal conviction under Article 125 of the CC is concerned, the applicant was tried and punished with reference to the facts that were “substantially the same” (see Sergey Zolotukhin, cited above, §§ 79-84).
Whether the applicant was “liable to be tried or punished again” (bis)19. The conviction under the CAO became “final” for the purposes of Article 4 § 1 of Protocol No. 7 on 29 June 2010 (see Mihalache, cited above, §§ 109 and 115). A criminal court convicted the applicant on 28 July 2011. The appeal court upheld that conviction on 21 September 2011. Thus, he was tried and punished “again” after 29 June 2010.
20. It is undisputed that already in early June 2010 the authorities were aware of the essential factual circumstances that could give rise to liability under Article 12.27(2) of the CAO or the Criminal Code. It was open to them to take an informed decision as to the course of action to be taken for prosecuting the applicant, in particular as to his conduct immediately after the accident, in compliance with the ne bis in idem principle as formulated by the Court in 2009 in Sergey Zolotukhin. Article 12.27(2) was amended in 2019 to specify that prosecution under it was only lawful in the absence of indications of a criminal offence. Those amendments were adopted after the facts of the case and do not affect it.
21. Article 4 § 1 of Protocol No. 7 does not preclude the conduct of dual proceedings, provided that certain conditions are fulfilled (see A and B v. Norway, cited above, §§ 130-32). It is incumbent on the Government to convincingly demonstrate that those conditions were fulfilled (ibid.). In their observations in 2019 the Government did not argue that the dual proceedings in question were “sufficiently closely connected in substance and in time” so as to form a coherent whole, nor that the other conditions mentioned above had been complied (compare Bajćić, cited above, §§ 39-46). The criminal courts’ decisions had not delved into those arguments either, since they treated the imputed offence completely separately from the administrative one (see paragraph 7 above).
Conclusion22. There has been a violation of Article 4 of Protocol No. 7 to the Convention on account of the applicant’s trial and punishment under Article 125 of the Criminal Code.
OTHER complaints23. In view of the nature and scope of the findings under Article 4 of Protocol No. 7, it is not necessary to examine the admissibility and merits of the complaints under Article 6 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
24. The applicant submitted no claim for just satisfaction within the prescribed time-limit. The Court makes no award.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the complaint under Article 4 of Protocol No. 7 to the Convention admissible;Holds that there has been a violation of Article 4 of Protocol No. 7 to the Convention;Holds that there is no need to examine the complaint under Article 6 of the Convention.Done in English, and notified in writing on 11 January 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Olga Chernishova Peeter Roosma
Deputy Registrar President