Commentary on Article 292. Violation of Fire Safety Requirements of the Criminal Code of the Republic of Kazakhstan

1. Violation of fire safety requirements by a person responsible for ensuring compliance with them, if this results, through negligence, in the infliction of serious or moderate bodily harm to a person or substantial damage to a citizen, an organization or the State, —

shall be punishable by a fine in an amount of up to three thousand monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to eight hundred hours, or restriction of liberty for a period of up to three 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 two 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 restriction of liberty for a period of two to seven 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.

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 five to ten 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 this crime lies in the fact that violations of fire safety rules and non-compliance with requirements, standards and regulations aimed at preventing fires create a threat to human safety and cause harm to the interests of individuals, society and the State, as well as to property.

The object of the crime is public safety. Human life and health, as well as property, may constitute additional objects.

Pursuant to the Law of the Republic of Kazakhstan dated April 11, 2014, “On Civil Protection,” fire safety is the state of protection of people, property, ownership, society and the State against fires (subparagraph 57) of Article 1).

Section 6 of the Law of the Republic of Kazakhstan “On Civil Protection” is devoted to the legal regulation of fire safety, according to which legal regulation in the field of fire safety means the establishment, in regulatory legal acts of the Republic of Kazakhstan, of fire safety requirements that are mandatory for compliance. Regulatory legal acts of the Republic of Kazakhstan in the field of fire safety include technical regulations, fire safety rules, instructions and other regulatory legal acts of the Republic of Kazakhstan containing fire safety requirements. Fire safety requirements for products and/or processes of their life cycle are established in technical regulations.

The development and implementation of fire safety measures for enterprises, buildings, structures and other facilities, including during their design, must necessarily provide for solutions ensuring the safe evacuation of people in the event of fires. For production facilities, fire elimination plans must be developed on a mandatory basis, providing for solutions to ensure the safety of people.

During the design, construction, reconstruction and manufacture of technical regulation facilities in the field of fire safety, the requirements concerning the following must be observed: the location of technical regulation facilities in the field of fire safety; the use of technical regulation facilities in the field of fire safety; the fire and technical classification of technical regulation facilities in the field of fire safety; the provision of technical regulation facilities in the field of fire safety with buildings and structures for fire stations; ensuring human safety; preventing the spread of fire; ensuring the possibility of extinguishing fires; and conducting rescue operations during firefighting.

The objective side of the crime is expressed in the violation of fire safety requirements by a person responsible for ensuring compliance with them, if this results, through negligence, in the infliction of serious or moderate bodily harm to a person or substantial damage to a citizen, an organization or the State.

Violation of fire safety requirements means failure to comply with, or improper compliance with, adopted regulatory acts aimed at ensuring the protection of individuals, property and the State against fires.

A fire is uncontrolled combustion outside a designated combustion area that results in damage.

In accordance with paragraph 20 of the Technical Regulation “General Fire Safety Requirements,” approved by Order No. 439 of the Minister of Internal Affairs of the Republic of Kazakhstan dated June 23, 2017, fire safety of a facility is the condition of a facility in which, with a regulated probability, the possibility of the occurrence and development of a fire and the impact of hazardous fire factors on people is excluded, and the protection of material assets is ensured.

Fire safety requirements should be understood as a set of provisions establishing the procedure for compliance with the requirements of regulations and standards aimed at preventing fires, ensuring human safety in the event of fires, providing facilities of the national economy and populated areas with fire protection equipment and firefighting machinery, as well as other fire safety rules. Failure to comply with the specified rules constitutes a violation of fire safety requirements.

A system of fire safety regulation and standardization is in force, providing for special fire safety standards.

Thus, GOST 12.1.004-91 “Occupational Safety Standards System. Fire Safety. General Requirements” establishes general fire safety requirements for protection facilities of various purposes at all stages of their life cycle: research, development of regulatory documents, design and engineering, manufacturing, construction, performance of services (works), testing, procurement of products through import, sale of products (including for export), storage, transportation, installation, assembly, commissioning, maintenance, repair (reconstruction), operation (use) and disposal.

For information on serious bodily harm and moderate bodily harm, see the commentary to subparagraphs 11) and 12) of Article 3 of the Criminal Code.

Damage shall be considered substantial if the damage caused to an individual amounts to a sum exceeding one thousand times the monthly calculation index, or if the damage caused to an organization or the State amounts to a sum exceeding two thousand times the monthly calculation index (subparagraph 38) of Article 3 of the Criminal Code of the Republic of Kazakhstan).

By its structure, the elements of the crime constitute a material composition. Violation of fire safety requirements is considered completed from the moment the consequences specified in the law occur: the infliction of serious or moderate bodily harm to a person or substantial damage to a citizen, an organization or the State (Part 1); the death of a person or other grave consequences (Part 2); the death of two or more persons (Part 3).

A mandatory condition for criminal liability is the existence of a causal relationship between the violation of fire safety requirements and the consequences that have occurred.

The subjective side is characterized by negligence as a form of guilt, which may take the form of criminal self-confidence or criminal negligence.

The perpetrator realizes that they are violating fire safety requirements and foresees the possibility of socially dangerous consequences occurring; however, without sufficient grounds, they recklessly rely on preventing such consequences, or they do not foresee the possibility of socially dangerous consequences occurring, although, with due attention and foresight, they should and could have foreseen them.

Intentional destruction of or damage to another person's property by arson must be qualified under subparagraph 1) of Part 2 of Article 202 of the Criminal Code of the Republic of Kazakhstan. If, by destroying or damaging another person's property through arson, the perpetrator desires the death of another person, consciously allows this socially dangerous consequence to occur, or is indifferent to it, then the act committed must be qualified cumulatively as crimes under Article 202 and subparagraph 6) of Part 2 of Article 99 of the Criminal Code.

If a fire occurs as a result of a violation of safety requirements at nuclear energy facilities, explosive facilities, during mining, construction or other works, or as a result of a violation of the rules for the storage, use or accounting, burial or transportation of radioactive materials, the act committed is covered by special elements of crimes and does not require additional qualification under Article 292 of the Criminal Code.

The subject of the crime is a physically sane individual who has reached the age of 16 and upon whom the duty to comply with fire safety requirements and ensure their compliance has been imposed. Such persons include heads of enterprises or organizations of all forms of ownership, persons authorized by them, as well as owners of property, including residential premises, tenants, lessees, etc.

Part 2 of Article 292 of the Criminal Code provides for liability for a qualified type of this crime: 1) the occurrence of a person's death through negligence; 2) other grave consequences.

Causing the death of a person means the occurrence of the person's biological death as a result of a violation of fire safety requirements.

Other grave consequences 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; causing substantial or especially substantial damage; creating a threat of a catastrophe or accident; and other consequences indicating the severity of the harm caused.

Part 3 of Article 292 of the Criminal Code establishes liability for an act provided for in Part 1 of this Article that results, through negligence, in the death of two or more persons.

Violation of fire safety requirements in forests (Article 292 of the Criminal Code of the Republic of Kazakhstan) should be distinguished from the destruction of or damage to forests (forest plantations) as a result of negligent handling of fire or another source of increased danger (Article 341 of the Criminal Code of the Republic of Kazakhstan) on the following grounds. First, the object of the violation of fire safety requirements is public safety, whereas the object of the destruction of or damage to forests is environmental safety. Second, the objects involved in the crime of violating fire safety requirements are any sources presenting a fire hazard (for example, fuels and lubricants, sources of electrical energy, explosives, open flames), whereas, in the case of the destruction of or damage to forests, such objects are forests belonging to the forest fund and other types of forests, in accordance with the Forest Code of the Republic of Kazakhstan dated July 8, 2003. Third, from the objective side, the act provided for in Article 292 of the Criminal Code of the Republic of Kazakhstan is expressed in the violation of fire safety requirements, whereas the act provided for in Article 341 of the Criminal Code is expressed in negligent handling of fire. Fourth, the subject of the crime provided for in Article 292 of the Criminal Code of the Republic of Kazakhstan is a person responsible for compliance with fire safety requirements, whereas the subject of the elements of the crime provided for in Article 341 of the Criminal Code is a physically sane individual who has reached the age of 16.

Violation of fire safety requirements must be distinguished from the negligent destruction of another person's property through negligent handling of fire or another source of increased danger. The distinction should be made based on the object and the objective side. The object of the crime provided for in Part 2 of Article 204 of the Criminal Code of the Republic of Kazakhstan is property. From the objective side, the act is expressed in negligent handling of fire or other sources of increased danger.

The act provided for in Part 1 of Article 292 of the Criminal Code belongs to the category of minor crimes.

The acts provided for in Parts 2 and 3 of Article 292 of the Criminal Code belong to the category of crimes of medium gravity.

Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan, by Isidor Shamilovich Borchashvili, Honored 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, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.*

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