Commentary on Article 345 of the Criminal Code of the Republic of Kazakhstan: Violation of Traffic Rules or the Rules for the Operation of Vehicles by Persons Driving Vehicles

1. Violation by a person driving a car, trolleybus, tram or other motor vehicle of traffic rules or the rules for the operation of vehicles, resulting through negligence in the infliction of moderate bodily harm to a person, —

shall be punishable by a fine in an amount of up to one hundred and sixty monthly calculation indices, or corrective 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 two years.

2. The same act, resulting through negligence in the infliction of serious 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.

3. An act provided for in Part One of this Article, resulting through negligence in the death of a person, —

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 five years.

4. An act provided for in Part One of this Article, resulting 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 seven years.

Road transport has firmly become part of the everyday life of modern people. At present, cars are not only a luxury item and a means of ensuring comfort, but also support the functioning of the country's economy. The volume of freight transportation increases every year. However, road transport is a source of increased danger and the most dangerous type of transport. According to statistical data, road transport is 12 times more dangerous than sea and river transport, 3 times more dangerous than railway transport and 1.5 times more dangerous than air transport.

The public danger of the criminal offence provided for in Article 345 of the Criminal Code (Part 1 — a criminal misdemeanour, Parts 2, 3 and 4 — crimes) lies in the fact that motor vehicles, when traffic rules are not observed or when they are improperly operated, frequently become a source of serious consequences. The criminal law provision under consideration is applied in judicial practice significantly more often than all the other provisions concerning transport offences taken together.

The object of the criminal offence under consideration is the public relations centred on compliance with the established rules in the field of ensuring road traffic safety or the operation of motor vehicles and urban rail vehicles. The additional object is the public relations guaranteeing the protection of the life and health of citizens.

The subject matter of the criminal offence under consideration is a car, trolleybus, tram or other motor vehicles powered by an engine.

According to Subparagraph 3) of Article 1 of the Law of the Republic of Kazakhstan dated 17 April 2014 “On Road Traffic”, a car is a motor vehicle intended for movement on roads and for transporting people, cargo or equipment installed on it, or for towing on roads vehicles intended for transporting people, cargo or equipment installed on them, including trolleybuses. This concept does not apply to tractors and self-propelled machines. An analogous definition of a car is contained in Subparagraph 3) of Paragraph 2 of Section 1 of the Traffic Rules approved by Resolution of the Government of the Republic of Kazakhstan dated 13 November 2014 “On Approval of the Traffic Rules, the Basic Provisions on the Admission of Vehicles to Operation, the List of Emergency and Special Services Whose Vehicles Are Subject to Equipment with Special Light and Sound Signals and Special Colour Schemes”.

A trolleybus is a trackless motor vehicle (primarily a passenger vehicle, although freight and special-purpose trolleybuses also exist) of the contact type, with an electric drive receiving electric current from an external power source (central power stations) through a two-wire overhead contact network using a pole current collector, combining the advantages of a tram and a bus.

A tram is an above-ground electric railway, a type of street and partially street-based public transport used for transporting passengers along designated routes, primarily in cities.

According to Paragraph 3 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 29 June 2011 “On the Practice of Applying Criminal Legislation in Cases Concerning Crimes Related to Violations of Traffic Rules and the Rules for the Operation of Vehicles”, when classifying a vehicle as a motor vehicle, it is necessary to proceed from the disposition of Article 345 of the Criminal Code and Subparagraph 38) of Article 1 of the Law of the Republic of Kazakhstan “On Road Traffic”, as well as Subparagraph 45) of Paragraph 2 of Section 1 of the Traffic Rules, according to which a motor vehicle is recognised as a self-propelled road vehicle driven by an engine, including cars, trolleybuses, trams (with the exception of mopeds and rail vehicles), tractors and self-propelled machines when participating in road traffic.

In addition, the concept of other motor vehicles is established in Paragraph 8) of Article 3 of the Criminal Code, under which tractors, motorcycles and self-propelled machines (excavators, mobile cranes, graders and rollers) are understood.

According to Paragraph 3 of the aforementioned Regulatory Resolution of the Supreme Court, mopeds are not classified as motor vehicles. A moped is a two- or three-wheeled vehicle equipped with an internal combustion engine with a cylinder capacity not exceeding fifty cubic centimetres, or an electric motor, and having a maximum design speed of no more than fifty kilometres per hour. Bicycles with auxiliary engines, mokicks, scooters and other vehicles with similar characteristics are equated to mopeds.

The objective element of the criminal offence provided for in Article 345 of the Criminal Code consists in the violation by a person driving a car, trolleybus, tram or other motor vehicle of traffic rules or the rules for the operation of vehicles, resulting through negligence in the infliction of moderate bodily harm to a person.

According to Subparagraph 13) of Article 1 of the Law of the Republic of Kazakhstan “On Road Traffic” and Subparagraph 24) of Paragraph 2 of the Traffic Rules, road traffic means the totality of public relations arising in the process of movement of people and cargo by means of vehicles or without them within the boundaries of roads.

According to Subparagraph 14) of Article 1 of the Law of the Republic of Kazakhstan “On Road Traffic”, traffic rules mean a regulatory legal act establishing a uniform procedure for road traffic, as well as the purpose and operation of technical and other road traffic management devices within the territory of the Republic of Kazakhstan.

The use of a motor vehicle includes its driving and operation, which are regulated by the laws of the Republic of Kazakhstan and the Traffic Rules of the Republic of Kazakhstan. Driving means controlling a vehicle in the process of its movement. According to the Law of the Republic of Kazakhstan “On Road Traffic”, the operation of a motor vehicle is a stage in the life cycle of a motor vehicle that includes its use for its intended purpose from the moment of state registration until the moment of disposal.

According to Subparagraph 16) of Article 1 of the Law of the Republic of Kazakhstan “On Road Traffic” and Subparagraph 24) of Paragraph 2 of the Traffic Rules, road traffic safety means the state of road traffic reflecting the degree of protection of its participants against road traffic accidents and their consequences, as well as against the negative impact of road traffic on the environmental situation and public health.

The disposition of Article 345 of the Criminal Code is of a blanket nature and refers to other regulatory legal acts. Thus, in order to establish a violation of traffic rules or the rules for the operation of vehicles, it is necessary to refer to the Law of the Republic of Kazakhstan “On Road Traffic” and the Resolution of the Government of the Republic of Kazakhstan “On Approval of the Traffic Rules, the Basic Provisions on the Admission of Vehicles to Operation, the List of Emergency and Special Services Whose Vehicles Are Subject to Equipment with Special Light and Sound Signals and Special Colour Schemes”, which establish the legal foundations and general conditions for the functioning of road traffic and ensuring its safety in the Republic of Kazakhstan, as well as the rights and obligations of all road users. In the course of the criminal law assessment of the act, it must be established whether the driver committed a violation and which specific provisions of the rules governing traffic safety or vehicle operation were violated by that driver.

Paragraph 6 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Practice of Applying Criminal Legislation in Cases Concerning Crimes Related to Violations of Traffic Rules and the Rules for the Operation of Vehicles” establishes that, taking into account the blanket nature of the disposition of Article 345 of the Criminal Code, the resolution on the classification of the suspect's act, the indictment (the protocol on a criminal misdemeanour, the resolution on the application of summary proceedings), and the court judgment (resolution) must indicate which specific provisions of the traffic rules or vehicle operation rules were violated by the perpetrator, and must also disclose the substance of those violations.

K. was convicted by a court for exceeding the speed limit while driving a VAZ car, losing control of the vehicle and hitting a pedestrian. The latter died at the scene from the injuries sustained. Having examined the case, the Judicial Collegium for Criminal Cases of the Karaganda Regional Court returned it for additional investigation, stating in its ruling that the court of first instance had merely described the circumstances of the road traffic accident in its judgment without specifying which provisions of the Traffic Rules had been violated by the perpetrator and how that violation had manifested itself.

Violation of traffic rules may be expressed in speeding, failure to observe the order of passage through intersections, disobedience to traffic light signals, entering the oncoming traffic lane, improper overtaking, driving a vehicle while ill or fatigued, driving under the influence of alcohol, narcotic substances or other intoxicating substances, etc.

Violation of vehicle operation rules may include driving a technically defective vehicle, transporting people or cargo in a vehicle not equipped for such purposes, transporting oversized cargo, parking a vehicle in an improper location, and other similar actions. Accordingly, the criminal offence under consideration may be committed through either an act or an omission.

Violations of the rules for the technical operation of transport during repair, loading and unloading, cleaning and other work, even if committed while the vehicle is moving, cannot be classified under Article 345 of the Criminal Code, since they infringe upon other protected interests — human life and health, and safe working conditions. In such cases, the perpetrator must be held liable under the articles of the Criminal Code providing for liability for violations of safety rules governing specific types of work, occupational safety rules and, in appropriate cases, offences against the life and health of citizens.

G., driving a ZIL truck, approached workers carrying out road repairs in order to unload crushed stone. While reversing, he failed to make sure that the manoeuvre was safe and fatally injured a worker. The pre-trial investigation authorities classified the act as negligent causing of death. Having carefully examined the circumstances of the case and the nature of the violations committed by the driver, the court found in them the elements of the crime provided for in Part 3 of Article 345 of the Criminal Code. When returning the case for additional investigation, the court stated in its ruling that G. had not yet begun unloading the crushed stone at the moment when he hit the victim; therefore, his actions should be regarded as a violation of traffic safety rules or vehicle operation rules.

A conclusion regarding a person's guilt may be reached only on the basis of a thorough examination of the scene of the road traffic accident, weather conditions, time of day, visibility, condition of the road surface, technical condition of the vehicle, the role of each participant in the road traffic accident and other circumstances.

In Part 1 of Article 345 of the Criminal Code, the legislator has established negligent infliction of moderate bodily harm as the socially dangerous consequence of a violation of traffic rules or vehicle operation rules by a person driving a vehicle; in Part 2 of the Article under consideration — negligent infliction of serious bodily harm; in Part 3 — negligent causing of death; and in Part 4 — negligent causing of the death of two or more persons. 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.

Death is the cessation of the vital functions of an organism. The definition of death is provided in Article 153 of the Code of the Republic of Kazakhstan “On Public Health and the Healthcare System” (see the commentary to Article 344 of the Criminal Code).

In practice, a situation may arise in which a violation of traffic rules or vehicle operation rules simultaneously causes, through negligence, harm to the health of or death of several persons.

According to Paragraph 9 of the aforementioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan, such an act as a whole is subject to classification under that part of Article 345 of the Criminal Code which provides for liability for the most serious consequence. At the same time, less serious consequences caused by the same act must be indicated in the indictment and in the court judgment.

In my opinion, this position of the Supreme Court is erroneous. It seems to me that if, as a result of a road traffic accident, serious bodily harm was caused to one person, for example, while another person died, the act should be classified under Parts 2 and 3 of Article 345 of the Criminal Code, since these parts of Article 345 of the Criminal Code contain independent elements of crimes, rather than solely under Part 3 of Article 345 of the Criminal Code, as recommended by the Supreme Court. Parts 2 and 3 of Article 345 of the Criminal Code contain separate offences.

Part 2 of Article 345 of the Criminal Code provides for the infliction of serious bodily harm as a consequence, whereas Part 3 of Article 345 of the Criminal Code provides for death. Classification of the act in the situation under consideration solely under Part 3 of Article 345 of the Criminal Code leaves the infliction of serious bodily harm on one of the victims without legal assessment.

Acts involving different harmful consequences, when committed by one person at different times and not connected with each other, must be classified as a cumulative set of offences.

When establishing the elements of the objective side of the composition of the offence under consideration, law enforcement authorities, in addition to establishing the fact of a violation of traffic rules or vehicle operation rules by a person driving a vehicle and the consequences that have occurred, must establish a causal relationship between the unlawful actions of the person driving the vehicle and the consequences that have occurred.

The causal relationship between the unlawful actions of drivers and the consequences that have occurred is of a complex and specific nature. Its specificity lies in the fact that harmful consequences are often the result of the interaction of a number of causes and conditions (most of which are objectively unfavourable), which do not depend on the subject and are beyond their control, but among which there is necessarily a factor in the form of a violation of special rules. These may include not only unlawful actions by drivers of motor vehicles, but also improper conduct by other road users, vehicle malfunctions, difficult weather conditions, etc. Therefore, establishing a causal relationship in cases of this category presents certain practical difficulties.

Thus, by a judgment of the Judicial Collegium of the West Kazakhstan Regional Court, citizen A., accused under Part 3 of Article 345 of the Criminal Code, was acquitted. The criminal prosecution authority accused A. of having, while driving a vehicle, grossly violated Paragraphs 9.1 and 10.1 of the Traffic Rules, entered the oncoming traffic lane and collided there with another vehicle. As a result of this road traffic accident, passenger B. died at the scene from the injuries sustained.

At the court hearing, the defendant testified that, while travelling, he heard a bang from behind, and at that very moment his car was thrown into the oncoming traffic lane, where another car was approaching him, making the collision unavoidable. He was unable to prevent the collision because the car had skidded.

According to the accident scene inspection report, it was established that the left rear wheel of the car driven by A. had lost its airtightness.

In accordance with the conclusion of a transport and traceological examination conducted by specialists of the “Independent Examination” Institution, it was established that the loss of airtightness of the wheel occurred immediately before the collision as a result of a pneumatic explosion of the tyre. This loss of airtightness affected the driver's loss of control over the vehicle, causing the car to veer to the left and enter the oncoming traffic lane. The conclusions of the transport and traceological examination were objectively confirmed by the body of evidence examined during the judicial investigation.

The Judicial Collegium noted that the speed of the car driven by A. was within the permissible limit, and that entering the oncoming traffic lane had occurred as a result of the loss of airtightness of the wheel caused by a pneumatic explosion of the tyre. The cause of the incident was an accident.

The Collegium found no violations of the Traffic Rules in A.'s actions, since he could not, and under the circumstances of the case was not required to, foresee the possibility of the road traffic accident and the subsequent socially dangerous consequences, that is, the circumstances did not depend on the defendant's actions.

As can be seen from the example provided, a causal relationship is excluded if no violation of the rules was committed at all and the driver had no technical possibility of performing a manoeuvre to avoid the collision. If A. had collided with the car as a result of violations committed by him (entering the oncoming traffic lane, speeding), the absence of a technical possibility to prevent the harmful consequences would have had no legal significance.

Y., while driving a car, saw a woman standing in the middle of the carriageway. Believing that she was letting him pass, Y. continued driving. When the distance had decreased to ten metres, she suddenly started running. To avoid hitting the pedestrian, the driver braked sharply, but was unable to avoid hitting her. The woman died at the scene from the injuries sustained. Y. was convicted by the court of first instance for violating traffic rules. However, the Judicial Collegium for Criminal Cases of the Supreme Court of the Republic of Kazakhstan noted in its ruling that the driver had been travelling at a permissible speed corresponding to the intensity of traffic, road and meteorological conditions, and that, when the danger arose, he had taken all measures within his power to prevent hitting the pedestrian. The cause of the accident was the improper actions of the victim, who had crossed the road in an unauthorised place.

As can be seen from the example provided, a causal relationship is excluded if no violation of the rules was committed at all and the driver had no technical possibility of performing a manoeuvre to avoid hitting the pedestrian or a collision, or if it is established that the emergency situation arose through the fault of other drivers or the victims. If Y. had hit the woman as a result of violations committed by him (speeding, proceeding through a prohibited signal), the absence of a technical possibility to prevent the harmful consequences would have had no legal significance.

The victim's state of health often influences the development of a causal relationship.

Thus, U., while driving a car, exceeded the speed limit and collided with an oncoming vehicle. As a result, passenger K. died in hospital from the injuries sustained. According to the conclusion of the forensic medical examination, death occurred as a result of acute blood loss against the background of a severe chronic disease — leukaemia accompanied by impaired blood clotting and anaemia. The minor harm caused to K.'s health could not, in itself, have resulted in his death. Having incorrectly assessed the expert's conclusion, the investigative authorities classified U.'s actions under Part 3 of Article 345 of the Criminal Code. The court, on the contrary, having carefully examined the circumstances of the road traffic accident and the conclusion of the forensic medical expert, indicated that there was no causal relationship between U.'s actions and the victim's death and acquitted the driver.

Thus, the fact of a violation of traffic rules or vehicle operation rules and the existence of harm do not in themselves indicate the existence of a causal relationship between them. The driver's actions may be regarded as the direct cause of the consequences only where the necessary connections exist, that is, where the harmful result was a закономерный consequence of the person's unlawful conduct, in the absence of which it could not have occurred at all.

If a driver, through unlawful actions, creates obstacles to traffic, as a result of which other road users are forced to cause harm to third parties (for example, they drive onto the pavement and hit a pedestrian), the actions of the second driver in this case are assessed according to the rules of extreme necessity (Article 34 of the Criminal Code) or innocent infliction of harm (Article 19 of the Criminal Code). A causal relationship also exists where a driver fails to stop their car after being blinded by the headlights of an oncoming vehicle and hits a pedestrian.

In practice, cases are increasingly encountered in which harm to a victim is caused by the joint (but uncoordinated) actions of various road users. The causal relationship in such acts is indirect in nature, as a result of which it is not always given the correct legal assessment.

Sh., while intoxicated, was driving a car carrying passengers at a speed of 80 km/h along a highway. Approaching an intersection, he saw a car entering the main road but continued driving, believing that the driver of that car, S., would give way to him as the person having the right of priority passage. However, this did not happen, and the cars collided, resulting in serious bodily harm being caused to passenger S., while Sh. himself sustained moderate bodily harm. A motor vehicle technical examination concluded that both drivers had the technical possibility of preventing the collision. Both drivers were brought to trial. S. was convicted, while Sh. was acquitted. The court judgment stated that the latter's speeding was not causally related to the consequences that had occurred.

Such a court decision is erroneous, since the violation of traffic rules did not release Sh. from the obligation to take all possible measures to prevent the accident and, according to the expert's conclusion, he had such an opportunity. In the road situation that had developed, his state of alcohol intoxication undoubtedly prevented him from avoiding the collision.

Another case. Driver K., while intoxicated, entered an intersection in a car on a permissive traffic light signal, while sober driver S. entered the intersection from a secondary road on a prohibitory traffic light signal. As a result, the cars collided, causing serious bodily harm to passenger T. A motor vehicle technical examination concluded that both drivers had the technical possibility of preventing the collision. Both drivers were brought to trial. S. was found guilty of causing serious bodily harm to passenger T. and was convicted under Article 345 of the Criminal Code, since his actions were in a direct causal relationship with the consequences that had occurred, because if he had not entered the intersection, the collision would not have occurred, regardless of the condition in which driver K. was. Driver K. was held liable for driving a vehicle while intoxicated.

In the Regulatory Resolution “On the Practice of Applying Criminal Legislation in Cases Concerning Crimes Related to Violations of Traffic Rules and the Rules for the Operation of Vehicles”, the Supreme Court of the Republic of Kazakhstan explained to lower courts that, when investigating similar cases, “it is necessary to determine whose actions created obstacles or danger to other drivers, whether the latter had the technical possibility of preventing a collision with another vehicle or another obstacle that appeared in their path, and whether they took all measures to avoid hitting or colliding with them. Attention should also be paid to whether the driver complied with Paragraph 10.1 of the Traffic Rules, according to which the driver must select a speed that ensures the possibility of constant control over the movement of the vehicle”.

According to Paragraph 6 of the aforementioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan, violations of traffic rules or vehicle operation rules that are not causally related to the socially dangerous consequences that have occurred (for example, the absence of a driver's licence at the time of the road traffic accident) cannot form the objective element of the aforementioned criminal offences and must be excluded from the charges.

If it is established that the harmful consequences that have occurred were the result of the joint actions of several persons, Article 345 of the Criminal Code applies to persons who were driving vehicles. In such cases, Article 351 of the Criminal Code, “Violation of Rules Ensuring the Safe Operation of Transport”, applies to other road users (pedestrians, cyclists, etc.).

Thus, a causal relationship in the offence provided for in Article 345 of the Criminal Code should be considered established in cases where the violation of traffic rules or vehicle operation rules preceded the occurrence of harmful consequences, was a necessary condition for their occurrence, or transformed such a possibility into reality.

Since the Traffic Rules apply throughout the entire territory of the Republic of Kazakhstan and drivers are obliged to comply with them everywhere, liability under Article 345 of the Criminal Code arises regardless of the place where the offence was committed: on a highway, an unpaved road, in a courtyard, on the territory of an enterprise or at a railway crossing.

By its legal structure, the composition of the criminal offence is material in nature. In this regard, the objective element of this act includes three mandatory features. Firstly, it is a socially dangerous act consisting in a violation of traffic rules or vehicle operation rules by a person driving a vehicle. Secondly, socially dangerous consequences expressed in causing harm to human life and health. Thirdly, a 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 subjective element of the criminal offence provided for in Article 345 of the Criminal Code, with regard to the consequences, is characterised by guilt in the form of negligence, since the legislator has made a direct indication of 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 arising from a violation of traffic rules or vehicle operation rules but, without sufficient grounds, recklessly relies on the fact that such consequences will not occur, or fails to foresee the possibility of socially dangerous consequences arising from a violation of traffic rules or vehicle operation rules, although, with the necessary attention and foresight, they should and could have foreseen the occurrence of harm.

Recklessness is most often associated with the driver relying on their extensive driving experience, the technical condition of the car, their knowledge of the particular section of the road and the level of traffic intensity on it, etc.

Carelessness may be expressed in a violation of traffic rules or vehicle operation rules as a result of distraction, forgetfulness or confusion.

Establishing the type of negligence is important for the correct classification of the act, determining the degree of guilt and, ultimately, individualising the punishment and selecting appropriate preventive measures to be applied to the convicted person. In the case of recklessness, it is necessary to establish precisely which circumstances strengthened the person's confidence that harmful consequences would not occur; in the case of carelessness, it is necessary to establish for what reasons the subject was obliged to foresee the socially dangerous consequences and what grounds they had for foreseeing them.

With regard to the violation of traffic rules or vehicle operation rules itself, an intentional form of guilt may also be discerned, in particular indirect intent, whereby a person driving a car, trolleybus, tram or other motor vehicle, or operating a vehicle, is aware of the social danger of their actions (omissions), foresees the possibility of adverse consequences, does not desire their occurrence but consciously allows them or treats them with indifference. Nevertheless, it must be taken into account that the mere fact that a person violates traffic rules or vehicle operation rules does not constitute a criminally punishable act.

The obligation of persons driving a motor vehicle or operating a vehicle to foresee the possibility of socially dangerous consequences arises from their professional obligations not to violate traffic rules or vehicle operation rules. However, the mere existence of an obligation to foresee the occurrence of adverse 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 the occurrence of adverse consequences but failed to make use of it, as a result of which socially dangerous consequences occurred.

A person's ability to foresee socially dangerous consequences also follows from the individual qualities of the perpetrator, such as professional experience, length of service, state of health, etc. However, establishing the negligent form of guilt in the form of carelessness does not always depend on the professional experience of the person driving a motor vehicle or operating a vehicle. Thus, for example, a novice driver with little driving experience is just as obliged to foresee adverse consequences of their unlawful actions (omissions) as an experienced driver with many years of driving experience.

When a person driving or operating a vehicle demonstrates an unscrupulous attitude towards their duties, they act dishonestly, without conscience and indifferently towards their obligations, that is, they demonstrate a condescending attitude towards the unlawful actions being committed while foreseeing the possibility of socially dangerous consequences. Consequently, an unscrupulous attitude towards one's duties has the features of an intentional form of guilt in the form of indirect intent, that is, the person driving or operating the vehicle is aware of the social danger of their actions, foresees the occurrence of adverse consequences, does not desire their occurrence but consciously allows them or treats them with indifference.

When classifying the act under consideration, distinguishing between recklessness and indirect intent presents certain difficulties. In such cases, it is necessary to turn to an analysis of the objective element of the specific offence. Only the nature of the action (omission) can objectively indicate the perpetrator's intentions and their attitude towards the act and its harmful consequences.

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

If a person foresaw the harmful consequences (causing harm to health, the death of the victim) resulting from a violation of traffic rules or vehicle operation rules and desired their occurrence (direct intent), or consciously allowed the possibility of their occurrence (indirect intent), liability must arise under the relevant articles of Chapter 1 of the Special Part of the Criminal Code, “Criminal Offences Against the Individual”.

According to Paragraph 10 of the aforementioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan: “If a person intentionally used a vehicle for the purpose of murder, causing harm to health, or destroying or damaging another person's property, the act should be classified under the articles of the Special Part of the Criminal Code concerning criminal offences against the individual or against property, without additional classification under Article 345 of the Criminal Code”.

F., while intoxicated, was driving a tractor along a street. Having caught up with two pedestrians, he sharply turned the tractor for hooligan motives and pinned them against a fence. As a result, one of the pedestrians fell under the tractor's tracks and was crushed to death. The perpetrator was convicted of intentional murder. In this case, the act was committed with indirect intent, since the circumstances of the case confirm that F. was aware of the social danger of his actions, foresaw the possibility of a fatal outcome for the victim and consciously allowed it.

In general, the subjective element of the offence under consideration is characterised by a negligent form of guilt.

Motive and purpose, as optional features of the subjective element of the violation of traffic rules by a person driving a car, trolleybus, tram or other motor vehicle, or operating a vehicle, who is obliged to comply with these rules, are not mandatory, since they are not provided for by the legislator in Article 345 of the Criminal Code. Since the act constituting the offence is generally negligent, motive and purpose apply not to the offence as a whole, but only to the fact of violating traffic rules or vehicle operation rules. Despite this, they have important practical significance when determining the degree of public danger of the offence and imposing punishment. Establishing the motive and purpose of an act expressed in a violation of traffic rules or vehicle operation rules provides law enforcement authorities with an opportunity to determine the attitude of the person driving (or operating) the vehicle towards the performance of their duties and, accordingly, towards public interests, as well as to understand the offender's life values.

The subject of the criminal offence under consideration may be a natural person who is sane, has reached the age of sixteen and is driving a motor vehicle or an urban rail vehicle.

In this regard, it does not matter whether the person was driving their own vehicle or a vehicle belonging to a state, public or other organisation, or whether they had the right to drive a car.

Military personnel or persons liable for military service during military training exercises cannot be subjects of this offence. Such persons are held criminally liable under Article 463 of the Criminal Code, “Violation of the Rules for Driving or Operating Machinery”, since they infringe upon the established procedure for performing military service. At the same time, cases in which military personnel or persons liable for military service violate traffic rules or vehicle operation rules, resulting in harmful consequences while driving a combat vehicle through a populated area, should be classified under Article 345 of the Criminal Code.

During driving instruction in a car equipped with dual controls, the instructor bears responsibility for the learner's erroneous actions that result in harmful consequences. However, if the offence is committed through the learner's deliberate disregard of the instructor's instructions and gross violation of traffic rules, the learner bears liability under Article 345 of the Criminal Code.

The issue of distinguishing between the liability of mentor drivers and trainees is resolved somewhat differently. A trainee already possesses certain practical driving skills, while mentor drivers are specially appointed to prepare them for independent driving. Under this form of mentorship, the trainee and the mentor bear equal responsibility for traffic safety.

E., undergoing training under the supervision of mentor G., was driving a trolleybus. When approaching a bus stop, he failed to maintain a safe lateral distance from a bus travelling in the same direction and, in order to avoid a collision, drove onto the pavement. As a result, pedestrian P. was hit and died at the scene from the injuries sustained. The investigative authorities terminated the criminal prosecution against the mentor due to the absence of the elements of a criminal offence in his actions, stating that the trolleybus driven by the trainee was not equipped with dual controls and therefore G. could not have done anything to prevent the pedestrian from being hit. The court agreed with this conclusion and convicted trainee E. However, the law enforcement authorities should have established which provisions of the Traffic Rules the mentor driver was obliged to help the trainee master. If trainee E. violated those provisions of the Traffic Rules, the mentor should also bear responsibility.

The criminal offence provided for in Article 345 of the Criminal Code should be distinguished from other related transport offences provided for in Article 344, “Violation of the Rules for the Safety of Movement or Operation of Railway, Air, Sea or River Transport”; Article 345-1, “Violation of Traffic Rules or Vehicle Operation Rules by Persons Driving Vehicles While Under the Influence of Alcohol, Narcotic Drugs and/or Toxic Substances”; Article 346, “Driving a Vehicle by a Person Deprived of the Right to Drive Vehicles and Being Under the Influence of Alcohol, Narcotic Drugs and/or Toxic Substances, as Well as Transferring Control of a Vehicle to Such a Person or Allowing Such a Person to Drive a Vehicle”; and Article 351, “Violation of Rules Ensuring the Safe Operation of Transport”.

The differences lie in the subject matter and the subjects of the criminal offences. If the subject matter of the offence specified in Article 344 of the Criminal Code is railway, air, sea or river transport, and its subject is a person who, by virtue of their work or position, is obliged to comply with the safety or operation rules governing the aforementioned types of transport, then the subject matter of the offence specified in Article 345 of the Criminal Code is automobile and urban rail transport, and its subject is persons driving this type of transport.

A driver who was previously deprived of the right to drive vehicles for violating traffic rules or vehicle operation rules while intoxicated, in the event of harmful consequences in the form of serious or moderate bodily harm, the death of a person or the death of two or more persons, is held liable under Article 346 of the Criminal Code.

If a person who has not been deprived of their driving licence, while intoxicated, violates traffic rules while driving a vehicle, resulting in the relevant consequences, the act should be classified under Article 345-1 of the Criminal Code, depending on the severity of the consequences.

The subjects of the criminal offence provided for in Article 351 of the Criminal Code may only be passengers, pedestrians, persons driving animal-drawn vehicles, etc.

The criminal offence under consideration may be associated with the unlawful taking of a car or another vehicle without the purpose of theft (carjacking) (Article 200 of the Criminal Code). In this case, the actions of a person who has unlawfully taken a vehicle and subsequently violated traffic rules or vehicle operation rules, resulting in harmful consequences, are classified cumulatively under Articles 200 and 345 of the Criminal Code.

In Paragraph 1 of the aforementioned Regulatory Resolution, the Supreme Court draws the attention of lower courts to the fact that criminal liability for criminal offences provided for in Articles 345, 345-1, 346 (Parts 3, 4, 5 and 6), 348 and 349 of the Criminal Code of the Republic of Kazakhstan arises only where a violation of traffic rules or vehicle operation rules has resulted in consequences in the form of negligent infliction of moderate or serious bodily harm to a person, or the death of one or more persons.

The act provided for in Part 1 of Article 345 of the Criminal Code is classified as a criminal misdemeanour.

The acts provided for in Parts 2 and 3 of Article 345 of the Criminal Code are classified as crimes of minor gravity.

The act provided for in Part 4 of Article 345 of the Criminal Code is classified as a crime 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 National Academy of Natural Sciences of Kazakhstan, 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 Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

Constitution Law Code Regulatory Decree Order Decision Resolution Lawyer Almaty Lawyer Legal services Legal Consultation Civil Criminal Administrative cases and disputes Defence Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Norms Note Rules Programme Charter Charter Article Commentary Resolution Regulations Protocol Programme Rules