Commentary on Article 277. Violation of Safety Rules During Mining or Construction Operations of the Criminal Code of the Republic of Kazakhstan
1. Violation of safety rules during mining or construction operations, if this results, through negligence, in the infliction of serious or moderate bodily harm to a person, —
shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or imprisonment for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years, or without such deprivation.
2. The same act, if it results, through negligence, in the death of a person or other grave consequences, —
shall be punishable by imprisonment for a period of up to five years, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years, or without such deprivation.
3. An act provided for in Part One of this Article, if it results, through negligence, in the death of two or more persons, —
shall be punishable by imprisonment for a period of three to eight years, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years, or without such deprivation.
The public danger of the crime lies in the fact that violations of safety rules during mining and construction operations may result in numerous human casualties and substantial material damage, since mining and construction operations are classified as hazardous production activities.
The object of the crime is public safety in the field of mining or construction operations. The additional objects are human life and health, and property.
The objective element of the crime is expressed in the commission of an act or omission associated with the violation of safety rules during mining or construction operations, where such violation results, through negligence, in the infliction of serious or moderate bodily harm to a person. There must be a causal relationship between the criminal act of the perpetrator and the consequence resulting from that act.
The disposition of Article 277 of the Criminal Code of the Republic of Kazakhstan is blanket in nature. In order to establish the specific elements of the criminal act, it is necessary to refer to the special safety rules governing mining or construction operations. For example, the Industrial Safety Rules for Hazardous Production Facilities Conducting Mining and Geological Exploration Operations, approved by Order No. 352 of the Minister of Investment and Development of the Republic of Kazakhstan dated December 30, 2014; and the Technical Regulation “Requirements for the Safety of Buildings and Structures, Construction Materials and Products”, approved by Resolution No. 1202 of the Government of the Republic of Kazakhstan dated November 17, 2010.
Safety rules governing the performance of work are understood to mean regulatory legal acts governing matters relating to the safe location, design, construction, installation, repair and operation of various facilities. Mining operations should be understood as the entire range of activities involving the construction, reconstruction and operation of mines and open-pit quarries, the extraction of rock, its transportation, all types of drilling operations, and the safe operation of drilling rigs used for oil and gas production.
Construction operations should be understood as the entire range of activities involving the construction and reconstruction of industrial, agricultural, residential and administrative buildings and structures.
Construction operations include excavation, masonry, concrete, installation and dismantling works, insulation, electrical installation, finishing, sanitary and technical works, loading and unloading operations, as well as other works carried out at construction sites and outside construction sites that are related to the repair and laying of communication lines, electrical networks and utilities.
Violations of safety rules during mining operations may be expressed in the failure to provide ventilation in working faces, improper roof support in longwall faces, the absence of barriers around subsidence areas, etc.
Violations of safety rules during construction operations may consist of breaches of construction technology, deficiencies in the quality of construction materials (for example, in the preparation of concrete and masonry mortar), the performance of construction work without appropriate designs, non-compliance with safety precautions at construction sites (inadequate fencing of construction sites), failure to provide workplaces with protective equipment, etc.
Violations of safety rules during mining or construction operations may be accompanied by violations of general labour protection rules, safety violations at explosive facilities, and violations of fire safety rules.
An actual concurrence of these crimes is possible if a person simultaneously violates different rules.
The definitions of the concepts of “serious bodily harm” and “moderate bodily harm” are provided in subparagraphs 11) and 12) of Article 3 of the Criminal Code of the Republic of Kazakhstan (see the commentary to Article 3 of the Criminal Code).
If, during mining or construction operations involving the use of special self-propelled machinery (excavators, graders, etc.), a person operating a tractor or other self-propelled machine violates the rules governing the performance of particular works, safety regulations or other labour protection rules, even if such violations were committed while the machine was in motion, the act shall be classified under the Articles of the Criminal Code providing for liability for violations of those rules and, where appropriate, for crimes against the life and health of citizens or the destruction of or damage to property.
By its legal structure, the corpus delicti is material. A violation of safety rules during mining or construction operations shall be deemed completed from the moment serious or moderate bodily harm is inflicted on a person. A causal relationship between the relevant violations of the rules and the occurrence of the consequences is an essential element.
The subjective element is characterized by an negligent form of guilt.
The perpetrator is aware that he or she is violating safety rules governing mining or construction operations and foresees the possibility of serious consequences occurring; however, without sufficient grounds, the perpetrator recklessly relies on preventing such consequences. Alternatively, the perpetrator does not foresee the possibility of serious consequences occurring, although, exercising due care and foresight, he or she should and could have foreseen them.
If intent on the part of the perpetrator is established in relation to the act and its consequences, the perpetrator's actions will fall within the elements of other crimes, in particular, those provided for by the Articles of the Criminal Code concerning murder, the infliction of serious and moderate bodily harm (Articles 99, 106 and 107 of the Criminal Code), sabotage (Article 184 of the Criminal Code), or the intentional destruction of or damage to another person's property (Article 202 of the Criminal Code).
The subject of the crime may be a sane individual who has attained the age of 16. Such persons may include officials (chief engineer, chief mechanic, site foreman), as well as other persons who, by virtue of the nature of their employment, are required to comply with the aforementioned rules (excavator operator, worker, etc.).
Part Two of Article 277 of the Criminal Code establishes liability for an act provided for in Part One that results, through negligence, in the death of a person or other grave consequences.
Causing the death of a person through negligence is expressed in depriving the victim of life during the performance of the perpetrator's professional activities as a result of a violation of safety rules governing mining or construction operations.
For the purposes of the crime under consideration, other grave consequences should be understood to include the infliction of serious bodily harm on two or more persons; deterioration of the environmental condition; the occurrence of a man-made or environmental disaster, or an emergency environmental situation; the infliction of major or especially major damage; and other consequences demonstrating the severity of the harm caused.
Part Three of Article 277 of the Criminal Code establishes liability for an act provided for in Part One that results, through negligence, in the death of two or more persons.
Additional classification under Article 104 of the Criminal Code is not required.
The corpus delicti of the crime under consideration must be distinguished from the criminal offence provided for in Article 156 of the Criminal Code, “Violation of Labour Protection Rules”. The distinction should properly be made on the basis of the place where the crime was committed, rather than on the basis of which rules — general or special labour protection rules — were violated by the perpetrator, as suggested by certain scholars in criminal law doctrine.
My arguments are as follows: violations of both general and special labour protection rules frequently occur simultaneously during mining or construction operations, and it would hardly be justified to classify such actions cumulatively under the Articles of the Criminal Code providing for liability for the crime under consideration and for violation of labour protection rules. Moreover, one must not overlook the provision contained in Part Three of Article 13 of the Criminal Code: “Where general and special rules compete, the special rule shall apply.” The commented-on Article 277 of the Criminal Code is a special rule in relation to Article 156 of the Criminal Code. Consequently, Article 277 of the Criminal Code shall apply.
The act provided for in Part One of Article 277 of the Criminal Code is classified as a minor crime.
The acts provided for in Parts Two and Three of Article 277 of the Criminal Code are classified as crimes of medium gravity.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, Member of the Working Group on the Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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