Commentary on Article 344 of the Criminal Code of the Republic of Kazakhstan. Violation of the Rules for the Safety of Movement or Operation of Railway, Air, Sea or River Transport

1. Violation of the rules for the safety of movement or operation of railway, air, sea or river transport by a person who, by virtue of the work performed or the position held, is obliged to comply with these rules, if this act, through negligence, results in the infliction of grievous or medium-gravity harm to human health or the causing of major damage, —

shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or corrective labor 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, resulting in the death of a person through negligence, —

shall be punishable by imprisonment for a period of up to seven 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, resulting in the death of two or more persons through negligence, —

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 or without such deprivation.

Transport-related criminal offenses are socially dangerous acts provided for by criminal law that infringe upon the normal functioning (movement and operation) of railway, road, water, air and main pipeline transport and cause harm to the life and health of citizens or damage of a property-related, organizational or moral nature.

The negative consequences resulting from the improper use of transport are considerable. The material damage caused by transport-related criminal offenses, although committed mainly through negligence, is quite comparable to similar damage resulting from intentional criminal offenses. Transport crimes cause significant damage to the economy of Kazakhstan and create a real threat to the life and health of citizens.

The public danger of the crime provided for in Article 344 of the Criminal Code lies in the fact that violations of the rules for the safety of movement or operation of railway, air, sea or river transport result in train wrecks, aviation accidents and shipwrecks, entailing numerous human casualties and enormous material, environmental and organizational damage.

The object of the crime under consideration is the social relations aimed at ensuring the safety of movement and operation of railway, air, sea or river transport.

The additional object is the social relations guaranteeing the safety of human life and health and the preservation of property.

For the correct legal classification of the act under consideration, the precise definition of transport and the types of vehicles as the subject matter of the offense is of great importance.

According to the Law of the Republic of Kazakhstan dated September 21, 1994, “On Transport in the Republic of Kazakhstan,” transport of the Republic of Kazakhstan means railway, road, maritime, inland waterway, air and urban rail transport registered in the territory of the Republic of Kazakhstan, as well as main pipeline transport located in the territory of the Republic of Kazakhstan.

In accordance with subparagraph 20) of Article 3 of the Criminal Code, transport means railway, road, maritime, inland waterway transport, including small sea and river vessels, air transport, urban electric transport, including the metro, as well as main pipeline transport located in the territory of the Republic of Kazakhstan.

Thus, transport is one of the main components of the infrastructure of modern society; the successful implementation of the state's economic strategy and the functioning of society as a whole largely depend on its level of development and operation.

According to the Law of the Republic of Kazakhstan dated December 8, 2001, “On Railway Transport,” railway transport is a type of transport ensuring transportation along railway tracks (subparagraph 58) of Article 1). Railway tracks are immovable property objects (mainline, station and access tracks) along which rolling stock is moved. Accordingly, railway transport includes locomotives, railcars, wagons, open wagons, platforms, tank cars, cranes and other rolling stock. The application of Article 344 of the Criminal Code does not extend to cases involving violations of safety procedures during the operation of mine and intra-workshop transport (electric locomotives, mine carts, etc.) performing purely production-related functions at a particular enterprise, mine and the like. Incidents involving such transport should be classified as violations of labor protection rules (Article 156 of the Criminal Code), negligent destruction of or damage to another person's property (Article 204 of the Criminal Code), or under articles providing for liability for offenses against the life and health of the individual.

Rail-based electric transport (trams, funiculars) does not qualify as railway transport.

Air transport is one of the types of transport used to carry passengers, mail and cargo by air. The concept of “air transport” includes airplanes, seaplanes, helicopters, as well as other aircraft (aerostats, airships, gliders, hang gliders, hot-air balloons, etc.), the operation of which requires compliance with safety measures. Violations of safety rules involving military aircraft should be considered offenses against the interests of military service and classified under Article 464 of the Criminal Code.

Maritime transport is a type of water transport. Maritime transport includes any vessel capable of moving across the surface of water (seas, oceans and adjacent waters), as well as vessels that simply remain afloat while performing certain functions related to the transportation, transshipment, storage and handling of various cargoes, and the transportation and servicing of passengers.

River transport (inland waterway transport) is transport that carries cargo and passengers by vessels along inland waterways, both natural (rivers, lakes) and artificial (canals, reservoirs).

Sea and river vessels include all self-propelled vessels and watercraft: passenger, research, extracting (fishing, crab-catching, etc.), processing (floating bases, floating factories), auxiliary (tugs, etc.), technical (dredging, bottom-cleaning, cable-laying, etc.), rescue and sports vessels, including hovercraft and hydrofoil vessels, as well as small sea and river vessels.

In accordance with subparagraph 45) of Article 1 of the Law of the Republic of Kazakhstan dated July 6, 2004, “On Inland Water Transport,” a small vessel is a vessel no more than twenty meters in length with a permitted number of persons on board not exceeding twelve, except for vessels constructed or equipped for fishing, cargo transportation, towing, search, exploration and extraction of mineral resources, construction, maintenance, hydraulic engineering and other similar works, pilotage and icebreaker escort, as well as activities aimed at protecting water bodies from pollution and contamination.

Vessels that do not have a mechanical engine and are propelled by a tug (barges, flat-bottomed vessels and others), rowing boats, stationary offshore platforms, as well as fixed fishing gear and rafts, are not the subject matter of the crime under consideration.

The objective side of the crime provided for in Article 344 of the Criminal Code consists in the violation of the rules for the safety of movement or operation of railway, air, sea or river transport by a person who, by virtue of the work performed or the position held, is obliged to comply with these rules, resulting through negligence in the infliction of grievous or medium-gravity harm to human health or the causing of major damage (Part 1), the death of a person (Part 2), or the death of two or more persons (Part 3).

The disposition of the criminal law provision under consideration is of a blanket nature and does not define the elements of a violation of the rules for the safety of movement or operation of railway, air, sea or river transport. In this regard, it is necessary to establish the departmental regulatory acts (orders, instructions, regulations) issued by ministries, departments or other entities that govern the activities of persons obliged to comply with the rules for the movement or operation of railway, air, sea or river transport. Accordingly, these regulatory legal acts contain rules (instructions, methodological recommendations) governing the safety of movement or operation of railway, air, sea or river transport, as well as provisions establishing qualification requirements and functional duties of persons obliged to comply with the rules for the movement or operation of railway, air, sea or river transport. Such regulatory legal acts include the Laws of the Republic of Kazakhstan dated September 21, 1994, “On Transport in the Republic of Kazakhstan”; dated December 8, 2001, “On Railway Transport”; dated July 6, 2004, “On Inland Water Transport”; dated January 17, 2002, “On Merchant Shipping”; dated July 15, 2010, “On the Use of the Airspace of the Republic of Kazakhstan and Aviation Activities”; the Decree of the President of the Republic of Kazakhstan dated August 31, 1992, “On Measures to Ensure the Safety of Air Transport of the Republic of Kazakhstan”; Orders of the Acting Minister for Investment and Development of the Republic of Kazakhstan dated July 9, 2015, “On Approval of the Safety Rules in Railway Transport”; the Minister for Investment and Development of the Republic of Kazakhstan dated April 30, 2015, “On Approval of the Rules for the Technical Operation of Railway Transport”; the Minister of Transport and Communications of the Republic of Kazakhstan dated May 19, 2011, “On Approval of the Instructions for Train Movement and Shunting Operations in Railway Transport”; the Minister of Transport and Communications of the Republic of Kazakhstan dated April 18, 2011, “On Approval of the Signaling Instructions in Railway Transport”; the Minister for Investment and Development of the Republic of Kazakhstan dated September 25, 2015, “On Approval of the Rules for the Transportation of Passengers, Baggage and Cargo by Air”; the Minister of Transport and Communications of the Republic of Kazakhstan dated March 28, 2011, “On Approval of Standard Instructions for Flight Safety Management by Operators of Civil Aircraft, at Airports, in Air Traffic Services and in Aircraft Maintenance”; the Acting Minister of Transport and Communications of the Republic of Kazakhstan dated May 16, 2011, “On Approval of the Instructions for the Organization and Servicing of Air Traffic”; the Minister for Investment and Development of the Republic of Kazakhstan dated April 28, 2015, “On Approval of the Rules for the Technical Operation of Inland Waterway Vessels”; the Acting Minister for Investment and Development of the Republic of Kazakhstan dated March 6, 2015, “On Approval of the Rules for State Registration of Vessels, Including Small Vessels, and Rights Thereto”; and the International Regulations for Preventing Collisions at Sea, among others.

Accordingly, a violation of the rules for the safety of movement and operation of railway, air, sea or river transport should be understood as a criminal act or omission whereby a person, by virtue of the work performed or the position held, fails to perform actions prescribed by regulatory legal acts governing their professional activities, or performs such actions in violation of those acts or not in full (partially). At the same time, it should be taken into account that liability under the article in question arises not for a person's violation of any rules in force in the transport sector, but only for violations of those rules that resulted in the harmful consequences specified in the article.

A violation of traffic safety rules may be expressed, for example, in passing a traffic light displaying a prohibiting signal, accepting a train onto an occupied track, dispatching a train onto a section occupied by other vehicles, failing to comply with aircraft takeoff or landing rules, altitude flight levels and flight corridors, exceeding the permitted speed of a vessel when approaching ports, failing to give appropriate sound signals, or violating the procedure for vessels to pass one another.

For example, in the city of Zhanaozen, the driver of a route-based Gazelle minibus entered a regulated railway crossing because the crossing attendant failed to give the appropriate signal indicating the approach of a train. The locomotive driver applied emergency braking, as a result of which 9 people died and 27 were injured. The Zhanaozen City Court sentenced the crossing attendant, who had been at work in a state of mild intoxication, to five years of imprisonment.

The objective side of the crime may also consist of other violations related to ensuring safety. For example, in the village of Borly, Karaganda Region, locomotive driver A. and his assistant T., while on a scheduled trip, consumed alcoholic beverages. Having become intoxicated, they fell asleep. As a result, the unattended locomotive entered a siding, where it collided with two other locomotives, causing medium-gravity harm to the health of a locomotive driver.

A violation of the rules for the operation of transport may also be recognized as releasing technically defective transport into service, transporting prohibited items, improperly loading or securing cargo, transporting passengers in vehicles not intended for that purpose, and so on. Thus, K. was convicted by the Kurchatov City Court of East Kazakhstan Region for violating the requirements of subparagraph 1) of paragraph 10 and paragraph 13 of the Rules for the Use of Small Vessels and Bases (Structures) for Their Mooring, approved by Order of the Minister for Investment and Development of the Republic of Kazakhstan dated March 27, 2015. K., having failed to provide all passengers with individual life jackets and thereby exposing them to danger during the operation of river transport, moved five meters away from the shore but was unable to control his small vessel (boat). Due to his incorrect and improper actions, the boat capsized, resulting in the death of passenger Zh.

The disposition of Article 344 of the Criminal Code does not cover violations of operating rules unrelated to the movement of vehicles (for example, during loading and unloading or repair work, or the boarding and disembarking of passengers while the vehicle is stationary). In such cases, the infliction of harmful consequences entails liability under articles concerning offenses against the individual or under Article 156 of the Criminal Code, “Violation of Labor Protection Rules.” For failure to perform or improper performance of official powers as a result of violating rules intended to ensure the most economically efficient use of vehicles, the perpetrators are held liable under Article 361 of the Criminal Code, “Abuse of Official Authority,” or Article 371 of the Criminal Code, “Negligence.” Thus, A., working as a boat captain, together with his assistant D., in violation of safety regulations on fleet vessels, attempted to use a motorboat to pull a fishing seiner off a shoal. As a result, the towline broke, and its end struck sailor P., who died from the injuries sustained. The actions of A. and D. were classified as a transport crime. The Supreme Court disagreed with this classification and reasonably indicated that persons responsible for an accident resulting from non-compliance with labor protection rules should be held liable under Article 156 of the Criminal Code, “Violation of Labor Protection Rules.”

The elements of the crime provided for in Article 344 of the Criminal Code are constructed as a material offense; accordingly, the objective side of this act includes three mandatory elements. First, it is a socially dangerous act consisting in the violation of the rules for the safety of movement or operation of railway, air, sea or river transport by a person who, by virtue of the work performed or the position held, is obliged to comply with these rules. Second, it is socially dangerous consequences expressed in harm to human life and health or the causing of major damage. Third, it is the causal relationship between the violations and the consequences specified in the law. Accordingly, the act is considered completed from the moment the socially dangerous consequences occur. The disposition of this offense does not contain such elements of the objective side as time, place, method, circumstances, instruments or means of committing the crime. Consequently, when classifying the crime provided for in Article 344 of the Criminal Code, the above-mentioned elements are not relevant, although they should be taken into account when imposing punishment.

In Part 1 of Article 344 of the Criminal Code, the legislator has provided for the infliction, through negligence, of grievous or medium-gravity harm to health or the causing of major damage as socially dangerous consequences; in Part 2 of the article under consideration — causing death through negligence; and in Part 3 — causing the death of two or more persons through negligence.

To determine the degree of harm caused to human health, a forensic medical examination must be appointed. The signs of medium-gravity harm to human health are provided for in subparagraph 12) of Article 3 of the Criminal Code, while the signs of grievous harm are provided for in subparagraph 11) of Article 3 of the Criminal Code.

The moment of a person's death is the moment of biological death. According to Article 153 of the Code of the Republic of Kazakhstan dated July 7, 2020, “On Public Health and the Healthcare System,” biological death means the cessation of the body's vital activity, in which vital functions have irreversibly ceased.

In accordance with subparagraph 38) of Article 3 of the Criminal Code, major damage means damage exceeding two thousand monthly calculation indices. The specific nature of the offense under analysis is such that, in addition to direct property damage, this term also encompasses environmental, organizational and other damage (significant environmental contamination, gas emissions; the destruction or wrecking of a vehicle, serious damage to a vehicle requiring its repair over an extended period; significant damage to or loss of cargo; idle wagons, interruptions in the movement of vessels, trains and aircraft, etc.).

To hold a person criminally liable under Article 344 of the Criminal Code, it is necessary to establish a causal relationship between the violation of the rules for the safety of movement or operation of transport and the socially dangerous consequences that have occurred. At the same time, the causal relationship must be established not merely with the person's action or omission, but with the violation that became the direct cause of the harmful consequences.

An act may be considered a cause only if the consequences that occurred were inevitable and закономерны as a result of the violation of the rules for the safety of movement or operation of vehicles. Factors that most frequently complicate the development of such a causal relationship include unlawful actions by other persons, forces of nature or technical factors.

Locomotive driver D. and his assistant T., operating a locomotive with 19 wagons loaded with phosphate ore, began making a turn at an excessive speed on the Burgun–Aktautas section of the railway in Zhambyl Region. However, due to braking, the train derailed. As a result of the accident, four people died, and Kazakhstan Temir Zholy Company incurred significant material losses. It was established that the derailment was caused by the negligent attitude of wagon inspector S. toward his duties, as he had failed to switch the air distributor mode from the “empty” position to the “loaded” position, as well as by locomotive driver D., who had failed to check the serviceability of the train's braking system. The court found them guilty of the accident, establishing a causal relationship between their actions and the harmful consequences that occurred.

The subjective side of the crime provided for in Article 344 of the Criminal Code, with regard to the consequences, is characterized by guilt in the form of negligence, since the legislator has expressly stated this in the disposition of the article. Negligence may take the form of recklessness or carelessness. Thus, the perpetrator foresees the possibility of socially dangerous consequences resulting from a violation of the rules for the safety of movement and operation of railway, air, sea or river transport but, without sufficient grounds, recklessly assumes that such consequences will not occur; or does not foresee the possibility of socially dangerous consequences resulting from a violation of the rules for the safety of movement or operation of transport, although, with the necessary attention and foresight, the person should and could have foreseen the occurrence of harm.

Recklessness is most often associated with the desire to reduce the time spent on a voyage and return to port more quickly; it may also be associated with the prevailing opinion that strict compliance with safety rules is a sign of a transport worker's inexperience and even timidity.

K., being the commander of an aircraft, agreed with second pilot Zh. that he would perform the landing at the airport with the front windshield covered by a curtain. In doing so, K. made the piloting conditions more difficult for himself, violated a number of rules and carelessly assumed that, thanks to his experience and skill, harmful consequences would not occur. However, his assumption proved incorrect: as a result of the violations committed, the aircraft landed at an excessive vertical speed and crashed. The second pilot Zh., three flight attendants and dozens of passengers died.

Carelessness may be expressed in a violation of safety rules resulting from absent-mindedness, forgetfulness or confusion.

With regard to the violation itself of the rules for the safety of movement or operation of transport, an intentional form of guilt may also be established, in particular indirect intent, where a person, by virtue of the work performed or the position held, is aware of the public danger of their actions (omissions), foresees the possibility of adverse consequences, does not desire their occurrence but consciously allows such consequences to occur or treats them with indifference. Nevertheless, it should be taken into account that the mere fact that a person violates the rules for the safety of movement or operation of transport does not constitute a criminally punishable act.

The obligation of persons operating or using railway, air, sea or river transport to foresee the possibility of socially dangerous consequences arises from their professional obligations not to violate the rules for the movement or operation of transport. However, the mere existence of an obligation to foresee the occurrence of socially dangerous consequences does not constitute grounds for bringing a person to criminal liability, since, in addition to the obligation to foresee adverse consequences, it is necessary to establish that the guilty person had a real opportunity to prevent their occurrence but failed to make use of that opportunity, as a result of which socially dangerous consequences occurred.

A person's ability to foresee socially dangerous consequences also follows from the individual characteristics of the perpetrator, such as their level of education, qualifications, professional experience, length of service, state of health and others. However, the establishment of negligence as a form of guilt does not always depend on the professional experience of the person operating or using transport. For example, a novice pilot with limited professional experience is just as obliged to foresee the adverse consequences of their unlawful actions (omissions) as an experienced pilot with many years of work experience.

When a person operating or using railway, air, sea or river transport has a negligent attitude toward their professional duties, they treat those duties unfairly, unscrupulously and indifferently, that is, they demonstrate a tolerant attitude toward unlawful actions while foreseeing the possibility of socially dangerous consequences. Consequently, an unscrupulous attitude toward professional duties has the characteristics of an intentional form of guilt in the form of indirect intent, meaning that a person operating or using transport is aware of the public danger of their actions, foresees the occurrence of adverse consequences, does not desire them but consciously allows them to occur or treats them with indifference.

Intentional actions involving the driving or operation of transport may constitute the elements of other crimes.

If a person foresaw the harmful consequences (causing harm to health or the death of a victim) resulting from a violation of the rules for the safety of movement or operation of vehicles and desired their occurrence (direct intent) or consciously allowed the possibility of their occurrence (indirect intent), liability should arise under the relevant articles of Chapter 1, “Criminal Offenses Against the Individual.” In this case, the intentional violation of safety rules constitutes a method of committing a more serious crime — murder. Therefore, where the perpetrator had the intent to cause the death of the victim, the act committed should be classified solely under Article 99 of the Criminal Code. In such situations, the vehicle itself acts as an instrument of the crime.

In general, the subjective side of the act under consideration is characterized by a negligent form of guilt.

Motive and purpose, as optional elements of the subjective side of a violation of the rules for the safety of movement or operation of railway, air, sea or river transport by a person who, by virtue of the work performed or the position held, is obliged to comply with these rules, are not mandatory, since the legislator has not provided for them in Article 344 of the Criminal Code. Since an act expressed in a violation of the rules for the safety of movement or operation of transport is, as a whole, negligent, motives and purposes in this crime relate not to the act as a whole, but only to the fact of violating the rules for the safety of movement or operation of transport. Despite this, they have important practical significance when determining the degree of public danger of the offense and imposing punishment. Establishing the motive and purpose of an act expressed in a violation of the rules for the safety of movement or operation of transport will enable law enforcement authorities to determine the attitude of the person operating or using transport toward the performance of their professional duties and, accordingly, toward public interests, as well as to understand the perpetrator's values in life.

The subject of the crime under consideration is a physically sane individual who has reached the age of 16 and who, by virtue of the work performed or the position held, is obliged to comply with the rules for the safety of movement or operation of mechanical vehicles. In this way, the legislator has expanded the scope of the characteristics of the subject of the offense under analysis by including not only transport workers but also any other persons connected with the vehicles specified in Article 344 of the Criminal Code.

These include, in particular, persons who directly operate a vehicle:

in railway transport — a locomotive driver and their assistant;

in air transport — an aircraft pilot and flight navigator;

in maritime and river transport — a ship captain, their assistant, a pilot, the helmsman of a motorboat, as well as citizens who own small vessels as private property.

Persons holding positions related to the operation of transport may include the head of a transport enterprise, a train conductor, a station duty officer, a track inspector, a switch operator, the head of a flight operations service, the head of a flight safety inspection department, a flight operations controller, a flight engineer, an air traffic controller, and others.

Persons who, by virtue of the work performed or the position held, are not obliged to comply with the rules for the safety of movement or operation of vehicles (cashiers, porters and others) are not subjects of the offense. In the relevant cases, they bear liability under articles concerning offenses against the individual.

The crime provided for in Article 344 of the Criminal Code should be distinguished from other related transport-related criminal offenses: violation of traffic rules or the rules for the operation of vehicles by persons driving vehicles (Article 345 of the Criminal Code), violation of flight rules or preparation for flights (Article 464 of the Criminal Code), and violation of navigation rules (Article 465 of the Criminal Code).

The differences lie in the characteristics of the direct object, subject and subject matter of the criminal offense. The direct object of a violation of traffic rules or the rules for the operation of vehicles is the social relations in the field of ensuring the safety of movement or operation of mechanical road and urban rail vehicles, while the subject may be any private individual driving a vehicle specified in Article 345 of the Criminal Code.

The subject of the violation of flight rules or preparation for flights provided for in Article 464 of the Criminal Code, and the violation of navigation rules provided for in Article 465 of the Criminal Code, may only be a military serviceman or a person liable for military service during the period of military training.

If a violation of the rules for the safety of movement in air transport is associated with a violation of international flight rules (Article 360 of the Criminal Code), resulting in the consequences specified in Article 344 of the Criminal Code, liability arises under the aggregate of Articles 344 and 360 of the Criminal Code.

In practice, a situation may arise in which a person hijacks or seizes an aircraft or water vessel, or railway rolling stock (Article 270 of the Criminal Code), while also violating the rules for the safety of movement or operation of these types of transport, resulting in the death of people or other grave consequences. Such hijacking should be regarded as a special type of violation of the rules for the safety of movement of an aircraft or water vessel or railway rolling stock, which, in accordance with the rules governing competition between general and special provisions, should be classified solely under Article 270 of the Criminal Code.

Part 2 of Article 344 specifies the consequence of causing the death of one person through negligence while committing the same act as a qualifying element, while Part 3 of Article 344 specifies the causing of the death of two or more persons through negligence as a particularly qualifying element.

The act provided for in Part 1 of Article 344 of the Criminal Code belongs to the category of minor offenses.

The acts provided for in Parts 2 and 3 of Article 344 of the Criminal Code belong to the category of serious crimes.

Note: Spelling errors, obvious typographical errors, distorted words and apparent text-recognition errors have been corrected. The content and length of the text have been preserved. The legal validity and current relevance of the cited provisions and references to legislation have not been verified.

**Commentary to the Criminal Code of the Republic of Kazakhstan, 2021 edition, 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 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.

Constitution Law Code Regulatory Decree Order Decision Resolution Lawyer Almaty Lawyer Legal Service Legal Consultation Civil Criminal Administrative [Cases Disputes] Defense Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Rules Note Regulations Program Charter Charter Article Commentary Resolution Regulations Protocol Project Program Regulations Messages