Illegality of Pedestrian’s Actions, Who Stepped off the Sidewalk, Does not Exclude Driver’s Guilt, Who Ran over Him – Criminal Cassation Court within the Supreme Court

Criminal Cassation Court within the Supreme Court has considered the complaint of the defender of an individual convicted under Part 2 of Article 286 of the Criminal Code of Ukraine (violation of rules related to traffic or driving safety that caused death of the victim) on the sentence of appeal court. In the defender’s opinion, court of first instance, which had adopted the acquittal, had correctly assessed the factual circumstances of the case; at the same time, the appeal court applied the law of Ukraine on criminal liability incorrectly, as well as did not clarify the nature of violations committed by each traffic participant.

The Criminal Cassation Court within the Supreme Court in its resolution noted that the appeal court’s judgment was based, particularly, on the analysis of report provided by expert automobile mechanic; according to the report, under the traffic situation, which occurred before the road traffic accident, the driver should have been guided by items 12.2 and 12.3 of the Traffic Rules (TR) and had a technical possibility, since the moment of appearing the danger, to avoid the pedestrian struck by applying emergency braking.

However, the court found that the convicted person had not taken such measures; in return, at the moment of detecting pedestrians on the traffic way he had given the signal of emergency stop, and then had performed the right lane change. This fact has been also confirmed by the record from the digital video recorder from an automobile moving in the same direction examined by the appeal court; on this record the traffic situation has been fixed before and at the moment of the road traffic accident. On the grounds of this evidence the court found that the road traffic accident with the participation of the victim and the convicted person had occurred just because of untimely applying emergency braking by the last one.

The Criminal Cassation Court within the Supreme Court did not agree with the defender’s argument as for the fact that the illegality of actions of the victim (pedestrian) excluded the convicted person’s guilt. It is undoubtful that because of the TR gross violation the victim has posed danger for traffic. However, regardless of the reasons of posing the danger for traffic or an obstacle, the driver had to comply with the requirement of item 12.3 of the TR and to decelerate immediately till the full stop of the vehicle or to drive round the obstacle safely for other traffic participants. Therefore, the fact that the danger for traffic, namely staying of pedestrian on the traffic way, has been posed because of the pedestrian’s illegal behavior, does not exempt the driver form the observance of the noted TR item requirements.

The Criminal Cassation Court within the Supreme Court left unchanged the sentence of the appeal court.

Follow the link to see the full text of the Resolution of the Criminal Cassation Court within the Supreme Court No. 759/2926/16-к (proceeding No. 51-8348км18): http://reyestr.court.gov.ua/Review/86435726.