Commentary on Article 306. Release or Sale of Goods, Performance of Work or Provision of Services That Do Not Meet Safety Requirements of the Criminal Code of the Republic of Kazakhstan

1. The release or sale of goods, performance of work or provision of services that do not meet the safety requirements for the life or health of consumers, as well as the unlawful issuance or use of an official document certifying the compliance of such goods, work or services with safety requirements, if these acts have negligently caused harm to human health, —

shall be punishable by a fine in an amount of up to one hundred and sixty monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to one hundred and sixty hours, or arrest for a period of up to forty days, 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 acts, if they:

1) are committed in respect of goods, work or services intended for young children;

2) have negligently caused harm to the health of two or more persons, —

shall be punishable by a fine in an amount of up to five thousand monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to one thousand two hundred hours, or restriction of liberty for a period of up to five 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.

3. The acts provided for in Parts One or Two of this Article, which have negligently caused the death of a person, —

shall be punishable by imprisonment for a period of four to eight years.

The public danger of this criminal offence (Part 1 constitutes a criminal misdemeanour, while Parts 2 and 3 constitute crimes) lies in the fact that its commission entails the risk of causing harm to the health of not only an individual but also a large number of people.

The consumer's right to the safety of goods (work, services) for the life, health and/or property of the consumer and the environment is enshrined in Article 11 of the Law of the Republic of Kazakhstan dated 4 May 2010 “On the Protection of Consumer Rights”. This right is guaranteed by the state, which establishes mandatory safety requirements for goods (work, services) applicable to all manufacturers of goods and providers of work and services.

The object of the criminal offence is public health.

The subject matter of the crime is goods, products, work and services that do not meet the safety requirements for the life or health of consumers, as well as official documents certifying the compliance of goods, work and services with safety requirements.

According to Article 1 of the Law of the Republic of Kazakhstan “On the Protection of Consumer Rights”, goods mean a product (output) of the activities of a manufacturer (contractor) intended for personal, family, household or other use unrelated to entrepreneurial activity (paragraph 11); the quality of goods (work, services) means the totality of characteristics of goods (work, services) relating to their ability to satisfy consumer needs (paragraph 13); work means an activity aimed at satisfying consumer needs, the results of which have a material form (paragraph 3); services mean activities aimed at satisfying consumer needs, the results of which do not have a material form (paragraph 6); the safety of goods (work, services) means the absence of an unacceptable risk associated with the possibility of causing harm to the life, health and/or property of the consumer, as well as to the environment, under normal conditions of use, storage, transportation and disposal of goods or in the process of performing work (providing services) (paragraph 12); a document means a document confirming the fact of purchasing goods (performance of work, provision of services), namely a cash (sales) receipt or a receipt for a cash receipt order, a receipt for a detachable coupon, a duly executed technical passport, or another document containing information on the name and price of the goods (work, services), the date of purchase, and the seller (manufacturer, contractor) (paragraph 14).

The consumer has the right to ensure that goods (work, services), under the established conditions of their use, storage, transportation and disposal, are safe for the life, health and/or property of the consumer and the environment. Requirements intended to ensure the safety of goods (work, services) are mandatory and are established in accordance with the legislation of the Republic of Kazakhstan in the field of technical regulation (Article 11 of the Law).

If mandatory requirements for the quality of goods (work, services) are provided for in accordance with the procedure established by the legislation of the Republic of Kazakhstan, the consumer has the right to receive goods (work, services) that comply with these requirements.

The consumer has the right to verify the quality, completeness, weight, volume, quantity and dimensions of the goods (work, services) being purchased, as well as to have the properties of the goods checked or to be shown how to use the goods correctly and safely in their presence, unless this is precluded by the nature of the goods (Article 13 of the Law).

Requirements for the quality of goods, work and services, primarily those that may affect the safety of consumers' lives and health, are contained in standards and other regulatory legal acts on standardisation and metrology.

The legal framework of the state system of technical regulation aimed at ensuring the safety of products, services and processes is established by the Law of the Republic of Kazakhstan dated 9 November 2004 “On Technical Regulation”. Certification is a procedure whereby a conformity assessment body provides written confirmation that a product or service complies with established requirements (paragraph 37 of Article 1 of the Law). The procedure for conducting certification is established by the Law of the Republic of Kazakhstan “On Technical Regulation”. In accordance with Article 32 of this Law, the sale of products subject to mandatory conformity assessment that have not undergone such assessment is prohibited. Advertising of products subject to mandatory certification that have not undergone certification in the Republic of Kazakhstan is not permitted.

Two types of certification are distinguished: voluntary and mandatory. Voluntary certification is carried out at the request of the manufacturer or seller. Certification of products and services for which mandatory requirements aimed at ensuring the safety of life and health and environmental protection have been established is compulsory.

The list of goods subject to mandatory certification includes all food products and raw materials used in their manufacture, children's goods, perfumery and cosmetic products, household chemical products, polymer and synthetic goods used in construction and transport, products that come into contact with human skin, etc.

Certification applies not only to goods manufactured in the territory of the Republic of Kazakhstan but also to goods imported from abroad. Certificates of conformity issued by certification bodies of other states are valid within the territory of the country only if they are recognised by the certification bodies of the Republic of Kazakhstan.

The objective element is expressed in the commission of one of the following acts: 1) releasing goods that do not meet the safety requirements for the life or health of consumers; 2) selling such goods; 3) performing work that does not meet the safety requirements for the life or health of consumers; 4) providing services that do not meet these requirements; 5) unlawfully issuing an official document certifying the compliance of the specified goods, work or services with safety requirements; 6) unlawfully using such a document.

The release of goods that do not meet the safety requirements for the life or health of consumers means the transfer or dispatch of products to a customer, or their arrival at the manufacturer's warehouse after passing through the technical control department and the preparation of documents certifying their compliance with state standards. Manufacturers may include any enterprises, regardless of their form of ownership, as well as individual entrepreneurs engaged in the production of goods for sale.

The sale of such goods means their disposal through a purchase and sale transaction. The sale of goods that do not meet safety requirements may be carried out by various trading enterprises, regardless of their form of ownership, as well as by individual entrepreneurs.

Performance of work and provision of services means the carrying out by a person of certain types of work (services) on the basis of an agreement with a consumer, where such work (services) do not meet safety requirements.

The unlawful issuance of an official document certifying the compliance of goods, work and services with safety requirements means the provision of such a document to a manufacturer of goods, a provider of work or services by a person authorised to monitor compliance with the safety requirements for goods, work and services, in violation of the procedure established by laws and other regulatory legal acts.

The use of an official document certifying the compliance of goods, work and services with safety requirements means its use when concluding various types of transactions, including purchase and sale, exchange, supply of products, etc.

Official documents confirming the compliance of the specified goods, work and services with safety requirements are the certificate of conformity and the licence to use the conformity mark.

If a person engages in illegal entrepreneurial activity by releasing or selling counterfeit goods, for example, alcoholic beverages or medicines presented as genuine products, thereby deceiving consumers regarding the quality and other characteristics of the goods that affect their price, the act should be classified under Article 190 of the Criminal Code as fraud. In cases where the specified actions are associated with the release or sale of counterfeit goods that do not meet the safety requirements for the life or health of consumers, the act constitutes a combination of criminal offences provided for by the relevant parts of Articles 306 and 190 of the Criminal Code.

In cases where illegal entrepreneurial activity is associated with the release or sale of goods (that are not counterfeit), performance of work or provision of services that do not meet the safety requirements for the life or health of consumers, the act constitutes a combination of criminal offences provided for by the relevant parts of Articles 214 and 306 of the Criminal Code.

The corpus delicti of the criminal offence is material in nature, and the offence is deemed completed from the moment the consequences in the form of negligently causing moderate bodily harm to at least one person occur.

The negligent infliction of serious harm to health in the commission of the act under consideration requires additional classification based on the combination of Part 1 of Article 306 of the Criminal Code and Part 3 of Article 114 of the Criminal Code.

The subjective element of the criminal offence is characterised by a dual form of guilt: intent on the part of the perpetrator in relation to the actions committed and negligence in relation to the consequences of their act.

If the perpetrator acts with intent to cause the consequences specified in this provision, their actions should be classified under the articles establishing liability for crimes against the person.

The subject of the criminal offence is special. However, the characteristics of the special subject vary depending on the form of the objective element. Thus, the subjects of the release of goods, provision of services and performance of work are the owners and heads of enterprises, institutions and organisations, regardless of their form of ownership and organisational and legal form, which engage in the release of products, performance of work or provision of services, as well as individual entrepreneurs. In the case of the sale of goods, the subjects may only be employees of trading organisations who directly sell goods to consumers: managers, commodity experts and other persons who accept goods based on their quality and are obliged to verify their compliance with established requirements, as well as persons who make decisions on the sale of such goods (owners and heads of departments of trading enterprises). Salespersons and retailers may be subjects of the commented Article only if the duty to verify the compliance of goods with established requirements was specifically assigned to them.

In the case of the issuance of official documents, the subjects of this criminal offence may be employees of certification bodies who are authorised to issue such documents. In the case of the use of official documents, the subjects may include owners and heads of manufacturing enterprises, producers of work, intermediaries, as well as owners and heads of trading organisations.

Part 2 of Article 306 of the Criminal Code provides for the following qualifying features of these acts: a) commission in respect of goods, work or services intended for young children; b) negligently causing harm to the health of two or more persons.

A child under the age of fourteen is considered a young child. The actions of the perpetrator fall under the elements of subparagraph 1) of Part 2 of Article 306 of the Criminal Code if the release or sale of goods, performance of work or provision of services that do not meet safety requirements is carried out in respect of goods, work or services intended for children under the age of fourteen.

Negligently causing harm to the health of two or more persons means causing moderate or serious harm to the health of these persons.

The qualifying feature of the crime under Part 3 of Article 306 of the Criminal Code is negligently causing the death of a person.

In the case of negligence, the person foresaw the possibility of the occurrence of the specified consequences of their actions (inaction), but, without sufficient grounds, carelessly relied on preventing these consequences; or the person did not foresee the possibility of a mass outbreak of disease, infection, irradiation or poisoning of people as a result of their actions (inaction), although, with due attention and foresight, they should and could have foreseen these consequences.

The act provided for in Part 1 of Article 306 of the Criminal Code constitutes a criminal misdemeanour.

The acts provided for in Parts 2 and 3 of Article 303 of the Criminal Code constitute crimes of medium gravity.

Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, 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 reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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