Commentary on Article 349. Admission to Driving a Vehicle of a Driver Who Does Not Have the Right to Drive under the Criminal Code of the Republic of Kazakhstan
1. Admission by an official or by the owner or possessor of a vehicle to driving a vehicle of a driver who does not have the right to drive vehicles or the right to drive vehicles of the relevant category, if this act negligently results in the infliction of moderate bodily harm to a person, —
shall be punishable by a fine in an amount of up to two hundred monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to two hundred hours, or arrest for a period of up to fifty days.
2. The same act, which negligently results 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 correctional 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 deprivation of liberty 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 act provided for in Part One of this Article, which negligently results in the death of a person, —
shall be punishable by deprivation of liberty for a period of up to three 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.
4. The act provided for in Part One of this Article, which negligently results in the death of two or more persons, —
shall be punishable by deprivation of liberty 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 three years or without such deprivation.
The public danger of the criminal offence commented on (Part 1 — a criminal misdemeanour; Parts 2, 3 and 4 — crimes) lies in the fact that the unlawful admission to driving a vehicle of a driver who does not have the right to drive vehicles or the right to drive vehicles of the relevant category creates a real threat to the safety of vehicle traffic, the life and health of people, and frequently causes substantial material damage.
The object of the criminal offence under consideration is public relations focused on compliance with the established rules in the field of ensuring road traffic safety or the operation of mechanical motor vehicles and urban rail transport vehicles. The additional object is public relations guaranteeing the protection of the life and health of citizens.
The subject matter of the criminal offence under consideration is the vehicles specified in Articles 3 and 345 of the Criminal Code.
The objective side of the criminal offence provided for in Article 349 of the Criminal Code consists in the admission by an official or by the owner or possessor of a vehicle to driving a vehicle of a driver who does not have the right to drive vehicles or the right to drive vehicles of the relevant category, if this act negligently results in the infliction of moderate bodily harm to a person.
Pursuant to Article 16 of the Law of the Republic of Kazakhstan dated 21 September 1994, “On Transport”, the right to drive a vehicle is granted to a person who has the appropriate qualifications and has undergone a medical examination of their state of health, with the issuance of documents of the established form.
In accordance with Article 73 of the Law of the Republic of Kazakhstan dated 17 April 2014, “On Road Traffic”, the following categories and subcategories of vehicles for which a special right to drive is granted have been established in the Republic of Kazakhstan:
Category “A” — motorcycles;
Category “B” — vehicles with a permissible maximum mass not exceeding three thousand five hundred kilograms and having no more than eight seats, excluding the driver's seat; category “B” vehicles coupled with a trailer whose permissible maximum mass does not exceed seven hundred and fifty kilograms; category “B” vehicles coupled with a trailer whose permissible maximum mass exceeds seven hundred and fifty kilograms but does not exceed the unladen mass of the vehicle, provided that the total permissible maximum mass of such a combination of vehicles does not exceed three thousand five hundred kilograms;
Category “C” — vehicles, except those belonging to category “D”, whose permissible maximum mass exceeds three thousand five hundred kilograms; category “C” vehicles coupled with a trailer whose permissible maximum mass does not exceed seven hundred and fifty kilograms;
Category “D” — vehicles intended for the carriage of passengers and having more than eight seats, excluding the driver's seat; category “D” vehicles coupled with a trailer whose permissible maximum mass does not exceed seven hundred and fifty kilograms;
Category “BE” — category “B” vehicles coupled with a trailer whose permissible maximum mass exceeds seven hundred and fifty kilograms and exceeds the unladen mass of the vehicle; category “B” vehicles coupled with a trailer whose permissible maximum mass exceeds seven hundred and fifty kilograms, where the total permissible maximum mass of such a combination of vehicles exceeds three thousand five hundred kilograms;
Category “CE” — category “C” vehicles coupled with a trailer whose permissible maximum mass exceeds seven hundred and fifty kilograms;
Category “DE” — category “D” vehicles coupled with a trailer whose permissible maximum mass exceeds seven hundred and fifty kilograms, as well as articulated buses;
Category “Tt” — trams;
Category “Tb” — trolleybuses;
Subcategory “A1” — motorcycles, tricycles, quadricycles and mopeds with a maximum design speed of more than fifty kilometres per hour, with an internal combustion engine displacement not exceeding one hundred and twenty-five cubic centimetres and a maximum power not exceeding eleven kilowatts;
Subcategory “B1” — tricycles and quadricycles;
Subcategory “C1” — vehicles, except those belonging to category “D”, whose permissible maximum mass exceeds three thousand five hundred kilograms but does not exceed seven thousand five hundred kilograms; subcategory “C1” vehicles coupled with a trailer whose permissible maximum mass does not exceed seven hundred and fifty kilograms;
Subcategory “D1” — vehicles intended for the carriage of passengers and having more than eight but no more than sixteen seats, excluding the driver's seat; subcategory “D1” vehicles coupled with a trailer whose permissible maximum mass does not exceed seven hundred and fifty kilograms;
Subcategory “C1E” — subcategory “C1” vehicles coupled with a trailer whose permissible maximum mass exceeds seven hundred and fifty kilograms but does not exceed the unladen mass of the vehicle, provided that the total permissible maximum mass of such a combination of vehicles does not exceed twelve thousand kilograms;
Subcategory “D1E” — subcategory “D1” vehicles coupled with a trailer not intended for the carriage of passengers, whose permissible maximum mass exceeds seven hundred and fifty kilograms but does not exceed the unladen mass of the vehicle, provided that the total permissible maximum mass of such a combination of vehicles does not exceed twelve thousand kilograms.
The right to drive vehicles is granted to persons who have passed the examinations, subject to the following conditions: the persons have reached the age established by the aforementioned Law and have a medical certificate confirming the absence of contraindications to driving vehicles.
Thus, the right to drive vehicles is granted:
for vehicles of subcategory “A1” — to persons who have reached the age of sixteen;
for vehicles of categories “A” and “B” and subcategories “B1” and “C1” — to persons who have reached the age of eighteen;
for vehicles of category “C” and subcategory “D1” — to persons who have reached the age of twenty-one and have at least three years of work experience as a driver, including at least one year of experience driving vehicles belonging to subcategory “C1”;
for vehicles of category “Tt” — to persons who have reached the age of twenty;
for vehicles of categories “D” and “Tb” — to persons who have reached the age of twenty-five and have at least five years of work experience as a driver, including at least three years of experience driving vehicles belonging to subcategory “D1”;
for combinations of vehicles of categories “BE”, “CE” and “DE” — to persons who have held the right to drive vehicles of categories “B”, “C” or “D”, respectively, for at least twelve months;
for combinations of vehicles of subcategories “C1E” and “D1E” — to persons who have held the right to drive vehicles of categories “C” or “D”, or subcategories “C1” or “D1”, respectively, for at least twelve months.
Persons who have reached the age of seventeen and have undergone appropriate driver training pursuant to referrals from local military administration bodies are admitted to examinations for obtaining the right to drive vehicles of categories “B” and “C”, as well as subcategory “C1”, without work experience as a driver and without driving experience involving vehicles belonging to category “C1” (Article 74 of the aforementioned Law).
The right to drive vehicles is confirmed by a driver's licence and, in cases provided for by the legislation of the Republic of Kazakhstan, by a temporary permit to drive a vehicle (paragraph 5 of Article 73 of the aforementioned Law).
National and international driver's licences complying with the requirements of international treaties of the Republic of Kazakhstan are issued in the Republic of Kazakhstan.
A national driver's licence is issued for a period of ten years, unless another restriction is provided for by the laws of the Republic of Kazakhstan.
An international driver's licence is issued for a period of up to three years, but not exceeding the validity period of the national driver's licence.
An international driver's licence issued in the Republic of Kazakhstan is invalid for driving vehicles within the territory of the Republic of Kazakhstan.
If restrictions on driving vehicles are indicated in a driver's licence, such driver's licence shall be considered valid provided that the restrictions specified therein are observed.
In accordance with Article 48 of the aforementioned Law, officials and other persons responsible for the technical condition and operation of vehicles are prohibited from admitting to driving vehicles drivers who do not have the right to drive a vehicle of the relevant category.
Admission to driving a vehicle of a driver who does not have the right to drive vehicles or the right to drive vehicles of the relevant category should be understood as actions (inaction) of officials, owners or possessors of vehicles expressed in the failure to take measures to prevent such a driver from driving a vehicle (for example, granting permission to depart on a route, consenting to a driver who has the right to drive only a passenger car operating a bus).
For the purposes of Article 349 of the Criminal Code, a driver who does not have the right to drive a vehicle or the right to drive vehicles of the relevant category is recognised as a person who does not have a driver's licence or a document issued in place of a seized or lost licence, or a person who has been deprived by a court of the right to drive a vehicle, as well as a person who does not have the right to drive vehicles of the relevant category.
It must be established that admission to driving a vehicle was carried out voluntarily and that the person was knowingly aware that the individual whom they admitted to driving a vehicle did not have the right to drive vehicles or the right to drive vehicles of the relevant category.
The actions of officials, owners or possessors who, in violation of special rules, admit to driving a vehicle a person who is subordinate to them in the course of their service duties, except in cases where such persons have been removed from driving or disposing of the vehicle by an official acting in the performance of their official duties (an immediate superior, a road police officer, etc.), also constitute the elements of the offence provided for in Article 349 of the Criminal Code.
With regard to the criminal offence under consideration, the functions of an official are performed by heads of motor transport enterprises and garages, their deputies, chief engineers, chief mechanics, etc.
According to subparagraph 29) of Article 1 of the Law of the Republic of Kazakhstan “On Road Traffic”, the owner of a vehicle is the owner of the vehicle, as well as a person who possesses the vehicle under the right of economic management or the right of operational management or on another lawful basis (the right of lease, an order of the relevant authority transferring the vehicle to such person).
A person who drives a vehicle by virtue of performing their official or employment duties, including on the basis of an employment or civil law contract with the owner or another possessor of the vehicle, or on the basis of their expression of will without formalising the transaction in writing, is not considered the owner of the vehicle.
The elements of the criminal offence provided for in Article 349 of the Criminal Code are, by their construction, material in nature. Accordingly, the objective side of the act includes three mandatory elements. Firstly, this is a socially dangerous act consisting in the admission by an official or by the owner or possessor of a vehicle to driving a vehicle of a driver who does not have the right to drive vehicles or the right to drive vehicles of the relevant category; secondly, socially dangerous consequences expressed in causing harm to human life and health; and thirdly, a causal relationship between the violations and the consequences specified in the law.
Accordingly, the act is considered completed from the moment socially dangerous consequences occur. The disposition of this criminal offence does not contain any optional elements (time, place, method, circumstances, instruments and means of committing the criminal offence). Consequently, the above-mentioned elements are irrelevant when qualifying the criminal offence provided for in Article 349 of the Criminal Code.
As socially dangerous consequences, the legislator provided in Part 1 of Article 349 of the Criminal Code for the negligent infliction of moderate bodily harm to a person; in Part 2 — the infliction of serious bodily harm; in Part 3 — the death of a person; and in Part 4 — the death of two or more persons.
A causal relationship must be established between the act and the harmful consequences that have occurred. It should be borne in mind that the causal relationship between the admission to driving a vehicle of a driver who does not have the right to drive vehicles or the right to drive vehicles of the relevant category and the harmful consequences that have occurred is indirect in nature (through the unlawful actions of the driver). It must be established only between the violation committed by officials, the owner or possessor of the vehicle and the consequences resulting from the unlawful actions of the driver.
Zh., being aware of the unlawful nature of his actions and being a person deprived of the right to drive vehicles, transferred his VAZ-21053 motor vehicle, which belonged to him by right of ownership, to his stepson T., thereby admitting him to driving the vehicle as a person who did not have the right to drive vehicles. While driving the vehicle, T. violated the Traffic Rules by failing to give way to a vehicle travelling on the main road and collided with a VAZ-21074 vehicle. As a result, the driver of the VAZ-21074, K., sustained moderate bodily harm through negligence. Thus, the court quite reasonably established a causal relationship between the act expressed in Zh.'s admission of his stepson T., who did not have the right to drive vehicles, to driving the VAZ-21053 motor vehicle and the resulting consequences expressed in the infliction of moderate bodily harm upon K., and found Zh. guilty under Part 1 of Article 349.
The absence of such a causal relationship excludes the person's liability under Article 349 of the Criminal Code.
The subjective side of the elements of the criminal offence provided for in Article 349 of the Criminal Code is characterised by an imprudent form of guilt in the form of recklessness or negligence. The perpetrator is aware that they are admitting to driving a vehicle a driver who does not have the right to drive vehicles or the right to drive vehicles of the relevant category, foresees the possibility of harmful consequences but recklessly expects that they will not occur, or does not foresee the harmful consequences, although they should and could have foreseen them.
If an official, the owner or possessor of a vehicle did not know and could not have known that the driver whom they admitted to driving the vehicle did not have the right to drive vehicles or the right to drive vehicles of the relevant category, the liability of such persons under Article 349 of the Criminal Code is excluded.
The subject of the criminal offence under consideration is physically sane natural persons who have reached the age of sixteen and who are officials or owners or possessors of a vehicle.
The act provided for in Part 1 of Article 349 of the Criminal Code is classified as a criminal misdemeanour.
The acts provided for in Parts 2, 3 and 4 of Article 349 of the Criminal Code are classified as minor crimes.
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 Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on the reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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