Commentary on Article 351. Violation of Rules Ensuring the Safe Operation of Transport of the Criminal Code of the Republic of Kazakhstan

1. Violation by a passenger, pedestrian or other road user (except for a person driving a vehicle) of traffic safety rules or rules for the operation of vehicles, if this act negligently causes serious harm to human health, —

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

2. The same act, which negligently causes the death of a person, —

shall be punishable by restriction of liberty for a period of up to four years or deprivation of liberty for the same period.

3. An act provided for in part one of this Article, which negligently causes the death of two or more persons, —

shall be punishable by deprivation of liberty for a period of three to eight years.

The public danger of the criminal offence under consideration (Part 1 — a criminal misdemeanour; Parts 2 and 3 — crimes) lies in the fact that failure to comply with the rules in force in transport that ensure its safe operation disrupts the functioning of road and urban rail transport, leads to accidents and disasters, threatens people's lives and health, and causes significant material, organisational and environmental damage.

The low level of legal awareness among a significant proportion of road users, expressed in non-compliance with or deliberate violation of the rules ensuring the safe operation of transport, is becoming one of the main threats to the safety of transport operations in Kazakhstan. It should be noted that criminal conduct by drivers of motor vehicles is not the only cause of accidents. Unlawful actions by pedestrians, passengers and other road users may entail socially dangerous consequences comparable in severity to those caused by drivers.

The object of the criminal offence commented on is public relations centred on compliance with the established rules in the field of ensuring traffic safety or the operation of mechanical road, urban rail and animal-drawn vehicles. An additional object is public relations guaranteeing the protection of citizens' lives and health.

The objective element of the offence provided for in Article 351 of the Criminal Code consists in a violation by a passenger, pedestrian or other road user (except for a person driving a vehicle) of traffic safety rules or rules for the operation of vehicles, which negligently results in serious harm to human health (Part 1), the death of a person (Part 2), or the death of two or more persons (Part 3).

According to the Law of the Republic of Kazakhstan “On Road Traffic”, a passenger is a person who is in (inside) a vehicle and is not driving it (subparagraph 12) of Article 1).

A pedestrian is a person who is outside a vehicle on the road and is not performing work there. Persons moving in wheelchairs for persons with disabilities, leading a bicycle, moped or motorcycle, or pulling a sled, cart or baby carriage are also equated with pedestrians (subparagraph 10) of Article 1 of the said Law).

A road user is a person who directly participates in the road traffic process as a pedestrian, passenger or driver (subparagraph 26) of Article 1 of the Law).

A person driving a vehicle is a driver. The category of drivers also includes persons herding livestock, a herd, pack animals, draught animals or riding animals along the road (subparagraph 25) of Article 1 of the Law).

Similar definitions are also enshrined in the Road Traffic Rules approved by Resolution of the Government of the Republic of Kazakhstan dated 13 November 2014 “On Approval of the Road Traffic Rules, the Basic Provisions for the Admission of Vehicles to Operation, the List of Operational and Special Services Whose Vehicles Are Subject to Equipment with Special Light and Sound Signals and Painting in Special Colour Schemes”.

The list of violations of the rules constituting the objective element of this criminal offence is extremely diverse. In addition to violations of the above-mentioned provisions of the rules, the act may consist of a pedestrian crossing the carriageway in a place not designated for that purpose or immediately in front of an approaching vehicle; a cart running over a pedestrian or a horse knocking down a person; non-compliance with traffic rules by cyclists, moped drivers, etc.

For example, A., while driving a technically sound moped of the “Raser” brand, violated paragraph 10.1 of the Road Traffic Rules: failed to increase attention, failed to take precautionary measures, failed to select a safe speed, taking into account the road conditions, that would ensure the possibility of constant control over the movement of the vehicle, and negligently hit two pedestrians, as a result of which one of the pedestrians, L., died from the injuries sustained at the City Clinical Hospital of Almaty.

It should be noted that the criminal law provision concerns violations directly related to ensuring traffic safety or the operation of vehicles. This provision, which is important for the practical application of the Article under consideration, means that any other actions committed on a bus while it is moving, such as hooliganism, are classified under Article 293 of the Criminal Code rather than Article 351 of the Criminal Code, since they do not encroach upon traffic safety or the operation of vehicles.

By its legal structure, the composition of the criminal offence is material.

As socially dangerous consequences of a violation of traffic safety rules or rules for the operation of vehicles by a passenger, pedestrian or other road user, the legislator has provided for negligent infliction of serious harm to health in Part 1 of Article 351 of the Criminal Code, causing death by negligence in Part 2 of the Article under consideration, and causing the death of two or more persons by negligence in Part 3.

Establishing causation is of great practical importance. An analysis of judicial and investigative practice in cases of this category indicates that serious errors are often made when examining this element of the objective aspect, resulting in the delivery of an unlawful conviction or the unjustified release of guilty persons from criminal liability.

T. was driving a car at a speed of 40 km/h during rain. Ahead of him, at a distance of five metres, a cyclist, S., was travelling in the same direction. Having turned, the cyclist suddenly found himself in the car's lane of travel. In order to avoid a collision, T. braked sharply, as a result of which the car was carried into the oncoming traffic lane. This resulted in the car hitting pedestrian B., who died from the injuries sustained. The investigative authorities classified the driver's actions under Part 3 of Article 345 of the Criminal Code. An automotive technical examination appointed by the court established that T. had no technical possibility of preventing the collision with the pedestrian and had not violated the traffic rules, was driving within the permitted speed limit, and that the collision occurred as a result of the cyclist's violation of the traffic rules.

The subjective element of the criminal offence provided for in Article 351 of the Criminal Code, in relation to the consequences, is characterised by guilt in the form of negligence, since the legislator has expressly indicated this in the disposition of the Article. Negligence may take the form of recklessness or carelessness. Thus, the offender foresees the possibility of socially dangerous consequences arising from a violation of traffic safety rules or rules for the operation of vehicles but, without sufficient grounds, recklessly assumes that such consequences will not occur; or fails to foresee the possibility of socially dangerous consequences arising from a violation of traffic safety rules or rules for the operation of vehicles, although, with the necessary attention and foresight, they should and could have foreseen the occurrence of harm.

With regard to the violation itself of traffic safety rules or rules for the operation of vehicles, an intentional form of guilt may also be present, in particular indirect intent, in which the passenger, pedestrian or other road user is aware of the socially dangerous nature of their actions (omissions), foresees the possibility of adverse consequences, does not desire their occurrence but consciously allows them to occur, or treats them with indifference. Nevertheless, it must be taken into account that the mere fact of a violation of traffic safety rules or rules for the operation of vehicles by a passenger, pedestrian or other road user does not constitute a criminally punishable act.

Intentional actions related to the violation of traffic safety rules or rules for the operation of vehicles may constitute the elements of other crimes.

If a passenger, pedestrian or other road user foresaw the harmful consequences (causing harm to health, the death of the victim) resulting from a violation of traffic safety rules or rules for the operation of vehicles 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, “Criminal Offences Against the Individual”.

In general, the subjective element of the act under consideration is characterised by negligence as the form of guilt.

Motive and purpose do not affect the legal classification. Since the act consisting in a violation of traffic safety rules or rules for the operation of vehicles is negligent, motives and purposes in this offence apply not to the act as a whole, but only to the fact of violating traffic safety rules or rules for the operation of vehicles. Despite this, they are of significant practical importance when determining the degree of public danger of the offence and imposing punishment.

The subjects of the act provided for in Article 351 of the Criminal Code may be passengers, pedestrians or other road users (cyclists, persons herding pack or riding animals or herds, persons driving animal-drawn carts, sledges, etc.), except for persons driving a vehicle specified in Article 345 of the Criminal Code.

The act provided for in Part 1 of Article 351 of the Criminal Code is classified as a criminal misdemeanour.

The act provided for in Part 2 of Article 351 of the Criminal Code is classified as a crime of minor gravity.

The act provided for in Part 3 of Article 351 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 Kazakhstan National Academy of Natural Sciences, Member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, Member of the Working Group on Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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