Communicated on 12 November 2018
THIRD SECTION
Application no. 71475/11
Denis Vitalyevich DUPLENKO
against Russia
lodged on 5 November 2011
STATEMENT OF FACTS
The applicant, Mr Denis Vitalyevich Duplenko, is a Russian national, who was born in 1988 and lives in Akhtyrskiy, Krasnodar Region, Russia.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
Following a traffic accident on 23 May 2010, on 3 June 2010 the applicant was accused of an administrative offence under Article 12.27 of the Code of Administrative Offences (CAO) for violating section 2.5 of the Traffic Regulations (see “Relevant domestic law and practice” below).
Following a medical report indicating that the victim had sustained health damage that was classified as significant, on 8 June 2010 a criminal investigation was opened against the applicant for offences under Articles 125 and 264 of the Criminal Code.
On 17 June 2010 the applicant was convicted of the administrative offence and was sentenced to a one-year suspension of his driving licence. The applicant did not appeal. The judgment became final two days later.
As to the criminal proceedings, a bill of indictment was compiled and submitted for trial. However, the case was then returned to the prosecutor (apparently, on two occasions).
On 30 May 2011 a new bill of indictment was approved. It stated as follows:
“[The applicant] is accused of an offence relating to traffic safety,, committed in the following circumstances:
At 2.15 a.m. on 23 May 2010 he was driving a car and detected (or should have detected) a danger presented by a motorcycle driving in the same direction in the right-hand lane of the road, just next to the dashed line. The defendant displayed criminal negligence in that he failed to anticipate adverse consequences. In violation of section 10.1 of the Traffic Regulations the defendant failed to adopt a speed, which was safe in the circumstances ... In violation of section 9.10 of the Regulations he failed to respect the distance from and a side interval with a vehicle moving in front of him, so as to avoid collision. He collided with the motorcycle ... Thereafter, he violated section 2.5 of the Regulations (requiring that following a traffic accident an implicated driver must stop the vehicle immediately, switch on the accident signals and put a warning sign) by way of leaving the scene of the accident ...”
At the trial the applicant pleaded not guilty to each criminal charge, arguing that if he had had any accident with the victim, the latter probably had dozed off on the road or had been distracted in view of his heavy alcohol intoxication and had fallen down on the road.
By a judgment of 28 July 2011 the Abinskiy District Court of the Krasnodar Region considered that the applicant had been responsible for the accident and convicted him as charged, inter alia, on account of the violation of the Traffic Regulations (namely, its section 2.5) resulting in causing bodily harm and leaving the victim of the accident unattended. Having listed summaries of testimonies and documentary evidence, the trial judge concluded that those summaries confirmed the charges under both Articles 125 and 264 of the Criminal Code.
The District Court sentenced the applicant to a restriction of liberty for two years, suspension of his driving licence for two years and a fine of 30,000 Russian roubles.
The applicant appealed and argued as follows:
(a) The trial court failed to give a thorough assessment of the available evidence, interpreting exculpating elements against him in breach of the principle requiring that any doubt should benefit the accused. In particular, the following elements were not discussed in the trial judgment in any manner (for instance, vis-à-vis the distribution of responsibilities, the applicant’s guilt or the victim’s contribution to the damage sustained):
- that the applicant had been sober, his car had been moving steadily and lawfully in the left-hand lane of the road, the victim had been driving in the right-hand lane whereas the accident had occurred in the left-hand lane (which was unlawful for such vehicle as a motorcycle pursuant to section 24.2 of the Traffic Regulations); the car had damage to the middle on its right side while the motorcycle had damage to the front of its front left side;
- that the victim had been driving his motorcycle in an unlawful manner and exposing himself to a risk of damage, namely without a helmet and while heavily intoxicated (as he had confirmed and as confirmed by the medical evidence), while the applicant had been sober;
- that the defendant could not turn around immediately but had returned forthwith to the scene of the accident after turning back over a bridge some 300-400 metres away (as regards the charge under Article 125 of the Criminal Code concerning the leaving of the scene of the accident); that the police had already arrived and that the defendant had then gone to the hospital after the victim;
- the trial court had relied on a technical report that stated that had the motorcycle driver complied with the traffic regulations the collision could have been avoided; however, the trial court had concluded that this did not prove the defendant’s innocence;
- the trial court had relied on the accident schematic report as adverse evidence, while concluding elsewhere in the trial judgment that the schematic report had wrongly indicated the area of the accident;
(b) At the same time, the defence had been limited in its opportunity to put forward its own evidence on account of:
- the trial court’s refusal to summon and examine paramedics (to testify as to the presence or absence of the applicant’s car at the accident scene or absence or presence of people at the accident scene, other than the traffic police or the victim); the traffic officers (to testify as to the exact area of the accident and how it had actually happened); the medical expert (to testify as to whether the victim might have sustained lighter injuries, if at all, in particular to his head, if he had been wearing a helmet); experts who had issued technical reports (to determine the respective responsibilities of each driver);
- the trial court had discarded a medical expert report, which was favourable to the defence, on the sole ground that “it had been paid for by the defence”, which was not ascertained; at the same time, the trial court accepted in evidence expert reports obtained by the prosecution.
On 21 September 2011 the Krasnodar Regional Court upheld the criminal conviction in a summary manner, without addressing the point of appeal relating to the ne bis in idem principle or any of the above points of appeal.
B. Relevant domestic law and practice
Section 2.5 of the Traffic Regulations (adopted by the Russian Government on 12 October 1993) provided, at the time, that following a traffic accident a driver, who was implicated in it, was required (i) to immediately stop his vehicle, to switch on the lights signals and to put out an accident sign, not to move any objects relating to the accident; (ii) to take practicable measures for providing first medical aid to the injured person, to call the emergency service or, in extremely urgent situations, to transfer the injured person to a hospital in another vehicle or his/her own vehicle (and then come back to the accident scene).
Pursuant to ruling no. 1 of 29 April 1996 by the Plenary Supreme Court of Russia, a criminal court judgment should contain assessment of each item of evidence that was examined during the trial hearing(s), both in so far as such evidence corroborates or contradicts the court’s findings on the matters to be determined. The text of the judgment must contain an explanation as to why a given item of evidence was accepted as reliable or was rejected. Where a defendant is accused of several offences, a criminal court judgment must contain reasoning relating to each offence (section 3 of the ruling).
A criminal court judgment to convict a defendant must be rendered, following the examination of all the crime scenarios that were put forward and the resolution of all the contradictions that were detected and assessed. The presumption of innocence requires that all doubts about a defendant’s guilt, which cannot be removed during the applicable procedure, should be interpreted in the defendant’s favour. Such doubts may relate to the guilt as well as to specific counts, forms of guilt or the defendant’s involvement or type of involvement in the offence, or aggravating or mitigating circumstances (section 4 of the ruling).
COMPLAINTS
The applicant complains under Article 6 of the Convention on account of the defence’s disadvantage as to the taking and examination of adverse or exculpating evidence, in particular by way of examining witnesses; the courts’ failure to deal with key arguments, including the one relating to the ne bis in idem principle; that the trial and the resulting trial judgment violated the principle of the presumption of innocence by way of failing to apply the principle that any doubt should benefit the accused.
The applicant complains that his convictions under the CAO and the Criminal Code overlapped as to the facts imputed to him and thus violated Article 4 of Protocol No. 7 to the Convention.
QUESTIONS TO THE PARTIES
1. Was there a violation of Article 4 § 1 of Protocol No. 7 to the Convention (compare with A and B v. Norway [GC], nos. 24130/11 and 29758/11, §§ 121-24 and 131-34, ECHR 2016)? In particular, did Russian law contain in 2010 and 2011 any requirement for the application of the ne bis in idem principle as regards the duplication of proceedings under the CAO and the Criminal Code?
2. As regards each of two charges under the Criminal Code:
(a) Was there a violation of Article 6 §§ 1 and 3 (d) of the Convention in respect of the defence’s disadvantage as to the taking and examination of adverse or exculpating evidence, in particular by way of examining the experts (whose reports had been used for convicting him) and witnesses on behalf of the defence under the same conditions as those put forward by the prosecution (compare with Melich and Beck v. the Czech Republic, no. 35450/04, §§ 47-55, 24 July 2008; Ajdarić v. Croatia, no. 20883/09, §§ 36-52, 13 December 2011; Topić v. Croatia, no. 51355/10, §§ 43-49, 10 October 2013; and Matytsina v. Russia, no. 58428/10, §§ 166-208, 27 March 2014; see also ruling no. 1 of 29 April 1996 and ruling no. 55 of 29 November 2016 by the Plenary Supreme Court of Russia)?
(b) Was there a violation of Article 6 § 2 of the Convention, in particular as regards the principle that any doubt should benefit the accused (see Barberà, Messegué and Jabardo v. Spain, 6 December 1988, § 77, Series A no. 146)?
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