Commentary on Article 298. Substandard Repair of Vehicles and Their Release into Operation with Technical Faults, Admission to Driving of a Person Under the Influence of Intoxication of the Criminal Code of the Republic of Kazakhstan

1. Substandard repair of vehicles, communication routes, signalling or communication facilities, or other transport equipment, as well as the release into operation of knowingly technically defective vehicles by a person responsible for the technical condition of vehicles, if these acts negligently result in the infliction of grievous bodily harm or bodily harm of medium severity, —

shall be punishable by a fine in the amount of four hundred to seven hundred monthly calculation indices, or in the amount of the salary or other income of the convicted person for a period of four to seven months, or by community service for a period of one hundred and eighty to two hundred and forty hours, or by arrest for a period of up to six months, or by imprisonment for a period of up to two years, with or without deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.

2. Admission to driving a vehicle of a person who is under the influence of alcohol, narcotic drugs or other intoxicating substances, committed by the owner or holder of the vehicle, if this negligently results in the infliction of grievous bodily harm or bodily harm of medium severity, —

shall be punishable by a fine in the amount of four hundred to seven hundred monthly calculation indices, or in the amount of the salary or other income of the convicted person for a period of four to seven months, or by community service for a period of one hundred and eighty to two hundred and forty hours, or by arrest for a period of up to six months, or by imprisonment for a period of up to two years, with or without deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.

3. Acts provided for in Parts One or Two of this Article, which negligently result in the death of a person, —

shall be punishable by imprisonment for a period of up to five years.

4. Acts provided for in Parts One or Two of this Article, which negligently result in the death of two or more persons, —

shall be punishable by imprisonment for a period of four 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.

The public danger of the crime lies in the fact that the very commission of substandard repairs of vehicles, communication routes, signalling or communication facilities, or other transport equipment, the release into operation of knowingly technically defective vehicles, as well as the admission to driving of a person under the influence of alcohol, narcotic drugs or other intoxicating substances, threatens the safety of transport operations, creates a real danger to the life and health of citizens and frequently leads to serious consequences.

The immediate object of the crime is the social relations in the sphere of ensuring the safety of traffic and operation of specific mechanical vehicles. The additional object is the life and health of the victim or property relations.

In addition to the vehicles listed in Articles 295 and 296 of the Criminal Code, the legislator also classifies communication routes (rails, railway switches, bridges, locks), communication and signalling facilities (traffic lights, semaphores, telegraph and telephone wires), and other transport equipment (overpasses, radars) as the subject matter of transport-related crimes.

Communication routes include: in railway transport — conventional railways, narrow-gauge railways, children's railways, autonomous lifting tracks leading to enterprises, mines, shafts, etc.; in water transport — routes followed by vessels through open sections of oceans or seas, straits and canals, as well as inland waterways (navigable rivers, rivers used for timber rafting, and lakes); in air transport — air routes and local air lines.

Signalling facilities include: in railway transport — automatic and semi-automatic track block systems, automatic locomotive signalling systems; in water transport — lighthouses, buoys, leading marks and navigation signs; in air transport — radio beacon systems and light signalling equipment; in road transport — traffic lights, road signs, devices for transmitting emergency signals, etc.

Communication facilities include: in railway transport — radio communication and wired communication; in water transport — radio stations and teletypes; in air transport — radars, VHF radio communication, onboard transponders, etc.

Other transport equipment includes: in railway transport — bridges, tunnels, devices for boarding and disembarking passengers, loading and unloading baggage and cargo, equipment for supplying electric trains with electricity, lighting and water supply facilities. In water transport — locks, piers and dams. In air transport — structures and devices ensuring the refuelling of aircraft, hangars. In road transport — overpasses, carriageway divider barriers, etc.

The objective element of the crime provided for in Part One of Article 298 of the Criminal Code includes the following features: a) substandard repair of vehicles, communication routes, signalling or communication facilities, or other transport equipment; b) the release into operation of knowingly technically defective vehicles by a person responsible for the technical condition of vehicles; c) socially dangerous consequences; d) a causal relationship between them.

Substandard repair of vehicles, communication routes, signalling or communication facilities, or other transport equipment may include carrying out repair work using unsuitable parts and materials, violating the established rules for performing repairs, failing to eliminate during such work existing or newly discovered equipment defects that pose a danger to the safety of traffic and transport operation, etc. The elements of the act under consideration also include the installation of new substandard equipment, instruments or mechanisms on vehicles, communication routes, signalling and communication facilities.

The release into operation of knowingly technically defective vehicles should be understood as the issuance by a person responsible for the technical condition of vehicles of permission for a vehicle to depart on a journey or enter a route despite defects in its braking system, steering mechanism, lighting devices, sound signal, or other parts and components, where such defects are obvious and apparent. It should also be understood as the failure of the aforementioned person to take measures to prevent other persons from operating technically defective vehicles, where such failure results in the harmful consequences specified in Part One of Article 298 of the Criminal Code (resulting in the infliction of grievous bodily harm or bodily harm of medium severity). For example, a mechanic of a motor vehicle fleet fails to inspect repaired vehicles, does not comply with the deadlines for preventive maintenance of vehicles, etc.

The consequences in the form of infliction of bodily harm of medium severity or grievous bodily harm are, in terms of their characteristics, similar to those provided for in Article 296 of the Criminal Code. The specific feature of establishing a causal relationship between substandard repairs or the release into operation of a technically defective vehicle is that the harm is caused not by the actual user of the vehicle, but by the person performing such repairs or the person granting permission for its operation.

The specific characteristics of the subject of the crime are determined by the nature of its objective element. The subject may be either general or special. Criminal liability from the age of sixteen (general subject) may arise in cases where such a person actually performs repairs of vehicles, communication routes, signalling or communication facilities. The presence of a special subject is mandatory in cases involving the release into operation of technically defective vehicles. Such persons are those who, under applicable instructions and regulations, relevant orders or by virtue of their official position, are entrusted with responsibility for the technical condition of vehicles (garage managers, duty mechanics, dispatchers, motor fleet engineers, etc.).

The subjective element of the crime is characterised by an unintentional form of guilt (criminal recklessness and criminal negligence — Article 21 of the Criminal Code). In the case of criminal recklessness, the guilty person is aware that the vehicle being released into operation is defective, foresees the possibility of harmful consequences occurring, but recklessly relies on preventing them. In the case of criminal negligence, the guilty person does not foresee the harmful consequences, although, with due attention and foresight, they should and could have foreseen the possibility of their occurrence.

Part Two of Article 298 of the Criminal Code provides for liability for admitting to driving a vehicle a person who is under the influence of alcohol, narcotic drugs or other intoxicating substances, if this negligently results in the infliction of grievous bodily harm or bodily harm of medium severity.

Admission to driving a vehicle of a person under the influence of alcohol, narcotic drugs or other intoxicating substances should be understood as actions of the owner or holder of the vehicle expressed in granting permission to depart on a journey or voluntarily transferring control of the vehicle to a person who is under the influence of intoxicating substances; as well as failure to take measures to prevent a person under the influence of intoxicating substances from driving a vehicle, where such actions or omissions result in the consequences specified in Part Two of Article 298 of the Criminal Code.

Intoxication should be understood as any degree of alcohol, narcotic or other intoxication, particularly since neither the criminal law prohibition nor judicial practice provides any grounds for such a narrow interpretation of the term “intoxication”.

If a vehicle is transferred not for the purpose of driving but, for example, for storage to a person who is under the influence of intoxicating substances, then in such cases liability under Part Two of Article 298 of the Criminal Code does not arise.

The crime is considered completed from the moment any of the consequences specified in Part Two of Article 298 of the Criminal Code occurs.

The subject of the crime provided for in Part Two of Article 298 of the Criminal Code is the owner or holder of the vehicle.

Part Three of Article 298 of the Criminal Code establishes liability for the same act provided for in Parts One or Two of this Article, which negligently results in the death of the victim.

Part Four of Article 298 of the Criminal Code establishes liability for an act provided for in Parts One or Two of this Article, which negligently results in the death of two or more persons.

When the same person commits acts provided for in Parts One and Two of Article 298 of the Criminal Code, each of the crimes is subject to separate legal classification.

Commentary of 2007 on the Criminal Code of the Republic of Kazakhstan by I.Sh. Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan.

Date of amendment of the legal act: 02.08.2007

Date of adoption of the legal act: 02.08.2007

Place of adoption: NONE

Authority that adopted the legal act: 180000000000

Registration number of the regulatory legal act assigned by the rule-making authority: 167

Status of the legal act: new

Scope of legal relations: 028000000000

Form of the legal act: COMMENTARY

Legal force: 1900

Language of the legal act: Russian 

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