Given significant public interest to the criminal case instituted against a well-known human rights advocate and public figure Yevgenyi Zhovtis accused of traffic rules violation entailing the death of a man; briefings and comments made by the Ministry of Interior bodies, numerous publications in mass media as well as materials arranged on the Internet, which unfortunately in many instances distort the real picture of events we find it necessary to provide some information to media representatives and public at large regarding this case.
At this we would like in the first place to express our sincere condolences to the family and close people of the man K.Maldabaev that died as a result of the tragic event.
1. Criminal case is brought based on the fact of traffic accident (TA) entailing the death of a person under Article 296 of the Criminal Code of the Republic of Kazakhstan «Violation of Traffic Rules and the Rules of Operating Vehicles by Persons that Operate these Vehicles», Part 2 – recklessly resulting in the death of a man. Sanction – up to 5 years of imprisonment. Evidence – Resolution on criminal case institution of July 27, 2009. From 27.07.09 to 14.08.09 Y.Zhovtis, the driver, was viewed as a witness under the case (evidence – transcript of interrogations of the witness Y.Zhovtis and other investigative activities with his participation), from 14.08.09 – a suspect, while from 15.08.09 – an accused (evidence – Prosecution process/ protocols of 14.08.09).
2. TA (automobile-pedestrian accident) took place at 131 kilometer of the automobile road, highway, Almaty-Karoi, on which the speed permitted is up to 110 km. per hour. Evidence – the road at this place runs through the settlement (the nearest settlement Akdala is in 300-500 meters away from the highway and runs along the Ili river); there are no any road signs prohibiting or limiting the velocity or indicating that this is a settlement; under Paragraph 10.3 of the Traffic Rules «outside of settlements the traffic is allowed: for cars … along the highways with the speed not exceeding the one set by the respective traffic sign 3.24, but not more than 140 km per hour, on the rest of the roads – not more than 110 km/hour».
3. In this place there is no any bus stops (a bus stop is on the highway about 250-300 meters away from the assumed TA place). The automobile road has no lighting; the width of the road is 7.60-7.80 m. Evidence – Protocol of examination of the place of accident, TA scheme.
4. At the moment of TA the driver was not drunk. Evidence – act of the driver medical examination immediately following the traffic accident. There is the conclusion of the chemical-toxicological examination indicating that in the blood of the driver there was ethyl alcohol in the volume of 0,42 ppm, which is not a degree of intoxication at all and does not influence car driving; it can be related to the use of lemonade, kefir, kvass or medications by the driver – validol, korvalol and etc. Evidence – Act of chemical-toxicological expert examination/ testing, Protocol of interrogation of the expert.
5. The driver has mild myopia and with the eye-glasses on the visual acuity is 100%, no pathologies or abnormalities have been identified. Evidence – conclusion of forensic-medical examination performed with the participation of leading specialists of the Institute of Eye Diseases.
6. The TA victim K.Moldabaiev died from the blow inflicted by the car at the place of the accident. Evidence – forensic-medical examination Act.
Circumstances confirmed by indirect evidence:
1. Automobile-pedestrian accident took place at about 1, 80 m away from the edge of the roadway in the direction of axis, the car was moving at a distance of 1,5 m away from the edge of the roadway. Indirect evidence – Protocol of examination of the accident venue, TA scheme, scattered fragments of the right headlight, fog light and the right headway (fragments were on the roadway to the left of the road shoulder if to look in the movement direction and were located along the roadway between the edge of the road and an axis), body location, location of shoes, belt of the trousers of the diseased, location of the car after the TA.
2. The speed of the car at the time of TA made up about 80-90 km per hour and did not exceed the authorized one. Indirect evidence – a loaded car (there were three passengers in it, a boot filled-in with fishing accessories, two sacks filled-in with the fish, a tent, sleeping bags, clothes, kitchen utilities, boat engine Yamaha -6, on the roof of the car boot – rolled on three-seater rubber boat, composite timber bottom, three sets of fishing rods); after the automobile-pedestrian accident the car stopped in 42 meters without emergency brake application; windshield has not been broken and the body has not been thrown over the car roof. The car – Toyota 4 runner with the left steering wheel, manufacturing year – 1995.
The driver’s version:
1. When approaching the TA place the car was moving with the dipped beam on due to the oncoming two cars (visibility under the dipped beam and stopped car is 49-56 meters. Evidence – experimental testimony/ evidence). With the car moving at the speed of 90-100 km per hour the road visibility under the dipped beam is – 35-40 meters. Indirect evidence – reference literature).
2. The first oncoming car was moving with the upper beam on and at a distance of about 150 m away the roadway visibility was getting worse. At this moment and under the dipped beam no any foreign objects or people were on the road. Indirect evidence – Protocols transcript of interrogations of the driver and the passenger that was at the front seat at the time of the accident immediately on the night immediately after the accident and later on.
3. In the situation with the oncoming cars at a distance of 70-100 m away from the car the visibility of the roadway has got worse. At this moment the driver transferred his foot from the accelerator pedal to the break and started slowing down. Indirect evidence – transcript of interrogations of the driver and a passenger, that has been in the front right seat, at the night immediately after the TA and later on; the length of skidmark after the automobile-pedestrian accident with emergency breaking – 42 m, which indirectly proves that the driver has been slowing down prior to the accident otherwise the length of the skidmark would have been much longer. With regard to the length of skidmark the same is to be found in the reference literature.
4. At that point of time there were no any foreign objects or people on the highway, especially given that the visibility was limited to 20-25 m. At this the driver kept under control the traffic on his driving lane, controlled the shoulder of the roadway and the flank and was getting ready to drive apart with the oncoming traffic. Indirect evidence – transcripts of interrogations of the driver and the passenger that was sitting on the front right seat at the night prior to TA and later on.
5. At a distance of 30-40 m away from the oncoming cars the first of them has not switched over driving beam to a dipped one and the roadway visibility has become practically zero, in other words, the driver has been close to blindness (has not seen anything) and his task was to successfully avoid collision with the oncoming car. This is why without changing the driving lane and slowing down the driver has been driving apart with the oncoming traffic, being guided first of all by the location of the headlights on centre strip and then moving on without changing the direction. The time this situation and driving apart with the oncoming traffic took was about 1 second. Indirect evidence – transcripts of interrogations of the driver and the passenger that was sitting on the front right seat at the night prior to TA and later.
6. At this point of time right after driving apart with the oncoming traffic and the cessation of flash blinding (there was no complete blindness that would require time to restore the eyesight because everything has happened in seconds, in a flash) under the dipped beam and at a distance of 2-3 meters from the front right seat of the passenger the driver saw the figure of a person, to be more specific his upper part – the back and the head, given that the man was in the position with his back to the car. The driver is in no position to state that the latter was moving on, standing or that he has just run out from the side given that he saw only the outline of the person’s figure in a flash. In the opinion of the driver, he had no any chance to stop or to turn out the steering wheel. That is why the car ran into the pedestrian from the back without any emergency brake application and without leaving the break traces. After the automobile-pedestrian accident the car stopped in 42 meters.
Key arguments of the prosecution.
1. The pedestrian has been walking along the roadway without turning around with the speed of 5.7 km per hour following the traffic direction. Indirect evidence: expert examination Act.
2. The driver had to apply emergency brake since the moment the visibility has got worse at a distance of 100 meter from the oncoming cars/traffic and in that case he would have had technical possibility to prevent the automobile-pedestrian accident having stopped the car before the accident place. Evidence: Process of prosecution and auto-technical expert examination Act.
3. Given that the driver has failed to do that he has violated Paragraph 19.2 of the Traffic Rules: «Under flash-blinding a driver shall switch on an alarm signaling light and halt without changing the drive lane» and Paragraph 10.1 of the Traffic Rules: «A driver shall have to drive a vehicle with the speed not exceeding the set limits and taking into account the volume of traffic, a vehicle peculiarity and status as well as the load, road and meteorological conditions, in particular visibility of the movement direction. The speed shall ensure the driver the possibility of continuous control over the vehicle movement in order to implement the requirements of the Rules. In case of an obstacle and (or) a danger for the movement, which a driver is able to detect he shall take measures to bring down the speed up to the halt or going around the obstacle safe for other traffic participants ». Evidence: Process of prosecution; Traffic Rules.
Key arguments of the defense
1. The pedestrian has grossly violated Paragraph 3.1 of the Traffic Rules: «Pedestrians shall have to move along the sidewalks or foot-paths, and in their absence – along the shoulders of road. … In the absence of sidewalks, foot-paths or road shoulders and in case of the impossibility to move along them pedestrians may move along bikeways or move in one line along the edge of the roadways (on the roads with the demarcation strip – along the edge of the roadways). Outside of the settlements when moving the roadway pedestrians shall have to move towards the flow of traffic». At the automobile-pedestrian accident venue on both sides of the highway there are shoulders more than 2 meters wide each that run along the entire length of the highway. The pedestrian was moving not along the shoulder of the road and not even towards the vehicle movement, thus grossly violating the Traffic Rules. Evidence: Protocol of the accident venue examination, TA scheme, Traffic Rules.
2. The diver has not entered the road shoulder. Evidence: Protocol of the accident venue examination, TA scheme.
3. The river had no any technical possibility to avoid the accident given that he had not seen the pedestrian either at a distance of 100 meters, or 50 m, or 20 m; he has failed to see him at a distance of 2-3 m from the car. There was no need for the driver to apply emergency breaking at a distance of 100 m from the oncoming cars given that there was no blinding at this distance but there was only the roadway visibility worsening, in other words reduction of the roadway length visible in the dipped beam of the car. The driver kept under control his movement, saw the part of the roadway and the right flank, started slowing down and was getting ready to drive apart with the oncoming traffic and did not endangered either his passengers or the driver or the passengers of the oncoming cars. He could not foresee that in some tens of meters, outside the visibility part of the roadway in the dipped beam of the car, on the roadway, on the center strip there would be a pedestrian walking where he was not supposed to walk.
A very strong visibility worsening close to «zero» happened at 30-40 meters away from the oncoming cars, which lasted about a second; the cars have successfully completed the driving apart and the driver could have successfully continued his way without any emergency break application, if at that very moment, when the roadway visibility has restored, there would not appear a man in front of the right passenger seat at a distance of 2-3 meters on the center strip of the traffic, to avoid collision with which was technically impossible.
Currently the defense is developing a number of petitions related to the expert examination performed.
Defense of Y.Zhovtis
Almaty, August 17, 2009.