Pit to another: a fall from a bicycle led to the dock of a road builder

In the Magistrate’s Court of the Kirzhachsky District of the Vladimir Region, a high-profile criminal case is being considered against the foreman of the Kirzhachsky Road Repair and Construction Department (DRSU, a branch of the Vladimir company DSU-3). The road worker is charged under the article “Causing grievous harm through negligence” – it was his investigation that was considered guilty of the fact that a few years ago a teenager on the sidewalk fell into a hole with a bicycle wheel and fell on a sharp corner of the bump stop. The guy miraculously survived, but now he is applying for disability. Experts note that the practice of criminal cases on incidents involving road workers has finally moved forward, but they propose to introduce an article into the Criminal Code that would unite such cases into one category. Details – in the material “Izvestia”.

miraculously survived

Yaroslav was cycling on the road to Kirzhach on July 2, 2020, and at the entrance to the bridge over the Vakhchilka River, he decided to turn onto the sidewalk. Cars drove behind, the road narrowed before the bridge crossing. Two years before, Yaroslav had already been hit by a car once, and he did not want to repeat it. The 17-year-old guy turned behind the bumper onto the sidewalk on the bridge, but the pavement on it turned out to be in such a terrible state that the bicycle wheel fell into a pothole, turned out – and Yaroslav flew off the seat. He fell right on the sharp channel of the chipper.

A bloodied child, who crawled out onto the roadway with the last of his strength, was picked up by motorists passing by. They were urgently taken to the hospital, where – fortunately – there were surgeons on the spot. Saving a life in this situation is a real miracle. At one of the court sessions, the resuscitator noticed that people die almost immediately from such an injury.

“As a result of a fall, he damaged the external iliac vein of his right leg – this is the vein into which all the veins of the leg flow,” Yaroslav’s mother, Elena Bychenkova, told Izvestia. “If the bypass circulation system hadn’t turned on, it would have been completely bad. Now – lifelong treatment, angioprotectors, lifelong – compression underwear of the second degree, and so on.

Yaroslav injured in a fall on a bridge in Kirzhach

Photo: REN TV

Yaroslav – a bright guy, an athlete – now he cannot stand for a long time, he cannot sit for a long time, he cannot sleep on his right side, he cannot run. It is very difficult to improve the condition – it is too risky to carry out the operation. Disability is issued.

Pavement process

Elena Bychenkova hoped to initiate a criminal case against the road builders, but she was refused after refusal. Everything was complicated by the fact that the traffic police officers were not called to the scene – all participants and witnesses were in an absolutely shock state. The fact of the fault of the road workers had to be proved with the help of special examinations, although back in 2017, regarding this bridge and the street on which it is located, local residents turned to the local mayor: they asked to make the road and sidewalk safe. People are heard were not.

Photos and videos taken after Yaroslav’s fall show that the pavement was literally falling apart. In one of the washed-out pits with sand, a bicycle wheel hit.

The pre-investigation check began only in January 2021, after receiving an expert examination on grievous bodily injuries. In September of the same year, 14 months after the incident, the case was opened under Part 2 of Art. 118 of the Criminal Code of the Russian Federation – “Infliction of grievous bodily harm through negligence, committed as a result of improper performance by a person of his professional duties.”

The defendant in the case was the foreman of the Kirzhachsky DRSU, a branch of the Vladimir company DSU-3. This organization is responsible for the maintenance of the road on which the incident with Yaroslav occurred, and the foreman was also responsible for this section in the Kirzhachsky district. In one of the documents of the case, which Izvestia got acquainted with, it is said that an employee of the company “could and should have identified shortcomings in the coverage of the site located on the approach to the bridge structure.” It also indicates that Yaroslav could not notice all the obstacles on the way because of the lush vegetation on the bridge crossing – the bushes along the edges of the sidewalk cast a shadow.

The condition of the sidewalk on the bridge in Kirzhach

Photo: REN TV

Now the case is in the magistrate’s court of the Kirzhachsky district. According to part 2 of Art. 118 the accused is threatened with restriction of liberty for up to four years, forced labor or imprisonment for up to one year. It also implies deprivation of the right to hold certain positions for several years.

The defendant in his testimony, as follows from the documents of the investigation, says that he had no information about the condition of this section, and also believes that Yaroslav was injured “through his own inattention and negligence”, as he had to “continue to move along the roadway bridge” or “dismount and walk.” Moreover, he calls the sidewalk a “technical transition”, although in the documentation, according to Elena Bychenkova, it is still designated as a sidewalk. The statements that the guy should not have turned onto the sidewalk are rejected by the victims with explanations that the safety lane between the barrier and the highway had its drawbacks – a strong elevation change, and the road narrowed. It was dangerous to drive there – especially considering the cars that were rushing behind.

Izvestia sent a request to the GPU DSU-3, but at the time of publication of the material did not receive a response.

The next hearing in this case in the Magistrates’ Court will take place on March 9. While witnesses are being questioned.

category of negligence

Lawyer, senior partner of ZKS Andrei Grivtsov believes that the chances of a guilty verdict in this case are very high, since the case has already been initiated, and the conviction rate in the country exceeds 99%. However, with a high degree of probability, we will talk about punishment that is not related to real deprivation of liberty. Grivtsov also explained that under the article “Negligence” only an official can be punished, which the accused is not, since he works in a commercial organization.

Photo: RIA Novosti / Maxim Bogodvid

The head of the Moscow Bar Association “Sheriyev and Partners” Akhmed Sheriyev notes that Part 2 of Art. 118 of the Criminal Code contains a sign – an act committed as a result of improper performance by a person of his professional duties, and in fact this is a category of negligence, “expressed in a special rule with reference to the degree of harm.” At the same time, he considers the qualification under Part 2 of Art. 238 of the Criminal Code of the Russian Federation (“Provision of services that do not meet safety requirements, which negligently entailed the infliction of grievous bodily harm”).

Lawyer of AB “Koblev and Partners” Daniil Zologin notes that for retraining in Part 2 of Art. 238 it is necessary to establish the intent of the person controlling this section of the road. This is indicated by the decision of the Plenum of the Supreme Court of the Russian Federation of June 25, 2019. That is, the investigator must prove that the road service officers knew about the poor condition of the site entrusted to them, but deliberately did not take any measures.

Member of the Moscow Bar Association Alexander Inoyadov explains that qualification under Art. 118 of the Criminal Code of the Russian Federation indicates either that there was a fault of a particular person, or that law enforcement agencies, in fact, “avoided assessing the actions or inaction of persons responsible for the performance of work.”

Base shift

The issue of composition, according to which this incident is being investigated, is very important from the point of view of judicial practice in such cases. Until recently, road builders practically did not bear any responsibility for the death or serious injury of people received in an accident due to the condition of the road. However, in the last 10 years, attempts to make road workers become defendants in such cases have become more frequent – and this was due precisely to Article 238 of the Criminal Code of the Russian Federation, which was seriously amended in 2011.

Photo: Izvestia/Alexey Maishev

The first attempts were rather unsuccessful. The courts, recognizing drivers as guilty of committing an accident, refer to their violation of clause 10.1 of the traffic rules of the Russian Federation, which refers to the responsibility of the driver – he must take into account the traffic intensity, features and condition of the vehicle, road and meteorological conditions, etc., Izvestia explained » Lawyer, Counsel at Kazakov & Partners Law Office Vasily Fotinsky. Now the courts have increasingly begun to hold companies that maintain roads responsible, but these decisions mainly relate to disputes about the recovery of damage caused to a car as a result of an accident, says Irina Shcherbakova, partner at Kazakov and Partners. In criminal cases, you need to involve a specific person, and law enforcement agencies are in no hurry to do this, she said.

Chairman of the All-Russian trade union of mediators Vladimir Kuznetsov drew attention to several cases that were considered in relation to employees of organizations serving the route. For example, in June 2016, the Azov City Court of the Rostov Region found guilty under Part 3 of Art. 238 of the Criminal Code of the Russian Federation of a road builder who applied markings with violations, which caused a serious accident. The road builder was sentenced to two years in prison. However, there was an obvious mistake of an employee of the organization, and not just a poor-quality road surface.

Last year, the trend was reversed – in the Novgorod region, a road foreman was sentenced to seven years of suspended imprisonment for the death of two people in an accident that occurred in 2016 due to a pothole.

“Practice is still not rich in cases of real prosecution of persons performing road work to criminal liability for their poor performance,” Kuznetsov noted. – Therefore, it would not be superfluous for the Supreme Court to voice its position on this issue.

Photo: TASS/URA.RU/Igor Merkulov

The accident commissioner Oleg Kulagin, in an interview with Izvestia, noted that an accident can happen not only because of a pothole, but also, for example, because of slipperiness or a water wedge on the road.

– I must say, on ordinary roads, service employees often take the rules lightly, – says Oleg Kulagin. — For example, there is a road narrowing sign on the right, and work is being done on the other side. At speed, this can mislead the driver and lead to a serious accident.

It is important that this fact is reflected in detail in the protocol from the scene of the accident by the traffic police: they drew up a diagram, took photographs from different angles, described the damage and the victims, indicated poor-quality road surface as the cause of the accident.

The representative of the road service must sign such a paper, says the emergency commissioner. If this is done, it will be much easier to prove the guilt of the road builder. In the practice of Oleg Kulagin, there was a case when the driver managed to sue the damage from representatives of the road services after he knocked down an elk on a toll road. The car was only bought, not yet insured, but the damage was recovered from the road builders, since the fact that the mesh was torn on the toll road – protection from forest animals was recognized as the cause of the accident. The traffic police officers reflected this in their protocol.

New article

Daniil Zologin believes that the practice under discussion is slowly moving forward. And Akhmed Sheriyev believes that it should be expanded, including with regard to the question of who to involve as a defendant. It is necessary to take into account not only the specific employees responsible for the maintenance of the road, but also those who provide funding and acceptance of the condition of the roads, he says. Irina Shcherbakova believes that it is necessary to develop the practice of such cases, if only to ensure that drivers or other road users are not brought to criminal responsibility if the condition of the road surface was the cause of the accident.

Photo: Izvestia/Alexander Kazakov

Associate Professor of the Department of Criminal Law of the University named after O.E. Kutafina (MSLA) Anastasia Ragulina believes that in order to develop such cases, it is necessary to introduce an independent article in ch. 27 of the Criminal Code of the Russian Federation “Crimes against traffic safety and operation of transport.”

“For example, it could be Article 268.1 of the Criminal Code of the Russian Federation, which can be called “Poor-quality road repairs, maintenance of roads in poor condition,” she said.

Under this article, she calls for punishment with imprisonment of up to two years for poor-quality repair of roads or their maintenance in an inappropriate condition, if this caused by negligence the infliction of grievous harm to human health; for the death of a person on such a road – imprisonment up to four years; and for the death of two or more persons – for up to seven years.

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