Commentary on Article 354. Violation of Safety Rules During the Construction, Operation or Repair of Main Pipelines of the Criminal Code of the Republic of Kazakhstan
1. Violation of safety rules during the construction, operation or repair of main pipelines, if this act has negligently caused 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.
2. The same act, which has negligently caused grievous bodily harm to a person or caused substantial damage, —
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 or without such deprivation.
3. An act provided for in part one of this Article, which has negligently caused 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 three years or without such deprivation.
4. An act provided for in part one of this Article, which has negligently caused 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 three years or without such deprivation.
Pipeline transport is the safest method of delivering fire- and explosion-hazardous liquid and gaseous hydrocarbons. However, as practice shows, even a minor installation error, deviation from calculated operating conditions, exposure to extreme natural phenomena, or violation of the rules governing scheduled routine maintenance work can result in emergency situations with serious consequences.
The public danger of the criminal offence under commentary (Part 1 — a criminal misdemeanour, Parts 2, 3 and 4 — crimes) lies in the fact that accidents involving main pipelines result in people being killed or sustaining serious injuries, substantial damage being caused to the environment, and wildlife and vegetation being destroyed.
The object of the criminal offence under consideration is the social relations ensuring the safe functioning of pipelines, as well as social relations in the field of ensuring safety during the construction, operation or repair of main pipelines. The additional object is represented by social relations guaranteeing the protection of citizens' lives and health, the preservation of property and the protection of the environment.
The subject matter of the criminal offence under consideration is a main pipeline. According to the Law of the Republic of Kazakhstan dated 22 June 2012 “On Main Pipelines”, a main pipeline is a unified production and technological complex consisting of a linear section and facilities ensuring the safe transportation of products and complying with the requirements of technical regulations and state standards.
In accordance with Article 11 of the said Law, main pipelines include main oil pipelines, gas pipelines and petroleum product pipelines.
A main pipeline consists of a linear section and facilities comprising devices, equipment, structures, buildings and other installations, together with the land plots occupied by them, interconnected into a single technological process.
The subject matter of the criminal offence being analysed also includes structures, buildings and installations that ensure the normal functioning of pipelines. These include compressor stations, pumping stations and loading stations, etc.
Main pipelines do not include field, technological and other pipelines intended for the transportation of products within the territory of the owner or another rights holder of the products for internal economic purposes, including within the contractual territory of a subsoil user, as well as distribution pipelines intended for transporting products to consumers.
The objective element of the criminal offence provided for in Article 354 of the Criminal Code consists in violating safety rules during the construction, operation or repair of main pipelines, which negligently results in moderate bodily harm to a person (Part 1), grievous bodily harm or substantial damage (Part 2), the death of a person (Part 3), or the death of two or more persons (Part 4).
Violation of safety rules during the construction of main pipelines means deviation from the requirements imposed on the safety of buildings and structures, construction materials and products, which creates a threat to the safe functioning of the pipeline (poor-quality welding or insulation of a pipeline in the ground or underwater, allowing pipe deflection beyond the established limit, using defective materials in the construction of shut-off valves, compressor stations, etc.).
Violation of safety rules during the operation of main pipelines may consist in exceeding or reducing the pressure in the pipeline, transporting other products, carelessness when working with monitoring and measuring instruments, untimely repairs, failure to conduct preventive inspections of automation systems and units, allowing persons who are intoxicated, have not undergone safety training or do not possess the required special qualifications to perform work, etc.
Violation of safety rules during the repair of a main pipeline may be recognised as failure to eliminate an identified defect, installation of poor-quality equipment, or defective assemblies and parts.
In this regard, it is essential to establish precisely which specific provision of the relevant special regulations and rules was violated by the guilty person and resulted in harmful consequences.
Violations of rules during the construction or repair of main pipelines must be related to the possibility of causing harm during their operation. In other cases, such violations entail liability under Article 277 of the Criminal Code, “Violation of Rules During Mining or Construction Operations”, or Article 278 of the Criminal Code, “Substandard Construction”.
By its legal structure, the composition of the criminal offence is material in nature; therefore, the objective element of this act includes three mandatory characteristics. Firstly, this is a socially dangerous act consisting in the violation of safety rules during the construction, operation or repair of main pipelines. Secondly, socially dangerous consequences expressed in causing harm to human life and health or causing substantial damage. Thirdly, there must be 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 such characteristics of the objective element as the time, place, method, circumstances, instruments and means of committing the criminal offence. Consequently, when qualifying a criminal offence provided for in Article 354 of the Criminal Code, the above-mentioned characteristics will not be of significance, although they should be taken into account when imposing punishment.
As socially dangerous consequences of violating safety rules during the construction, operation or repair of main pipelines, the legislator has provided in Part 1 of Article 354 of the Criminal Code for negligently causing moderate bodily harm, in Part 2 of the Article under consideration — negligently causing grievous bodily harm or substantial damage, in Part 3 — negligently causing death, and in Part 4 — negligently causing the death of two or more persons.
In accordance with subparagraph 38) of Article 3 of the Criminal Code, substantial damage is deemed to be damage exceeding two thousand monthly calculation indices. The specific nature of the offence being analysed is that, in addition to direct property damage, this term also encompasses environmental, organisational and other damage (significant poisoning or pollution of the environment, gas emissions; interruption of the movement of motor vehicles, vessels, trains and aircraft, disruption of the operations of enterprises and institutions, etc.).
In order to bring a person to criminal liability under Article 354 of the Criminal Code, it is necessary to establish a causal relationship between the violation of safety rules during the construction, operation or repair of main pipelines and the socially dangerous consequences that have occurred. In this regard, 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.
It must be established that it was precisely the unlawful impact on the products transported through the main pipeline (oil, gas, etc.) that led to the legally specified consequences set out in Article 354 of the Criminal Code. If they occurred as a result of the interaction of other factors (for example, electric shock, destruction of a foundation, etc.), liability under this criminal law provision is excluded.
The subjective element of the criminal offence provided for in Article 354 of the Criminal Code, with regard to its consequences, is characterised by guilt in the form of negligence, since the legislator has made a direct reference to this in the disposition of the Article. Negligence may take the form of recklessness or carelessness. Thus, the guilty person foresees the possibility of socially dangerous consequences arising from the violation of safety rules during the construction, operation or repair of main pipelines, but, without sufficient grounds, recklessly assumes that such consequences will not occur, or does not foresee the possibility of socially dangerous consequences arising from the violation of safety rules during the construction, operation or repair of main pipelines, although, with the necessary attentiveness and foresight, they should and could have foreseen the occurrence of harm.
Carelessness may be expressed in the violation of safety rules as a result of absent-mindedness, forgetfulness or confusion.
With regard to the violation itself of safety rules during the construction, operation or repair of main pipelines, an intentional form of guilt may also be identified, in particular indirect intent, whereby a person is aware of the public danger of their actions (omissions), foresees the possibility of adverse consequences occurring, does not desire them but consciously allows them to occur or treats them with indifference. Nevertheless, it should be taken into account that the mere fact of violating safety rules during the construction, operation or repair of main pipelines does not constitute a criminally punishable act.
The obligation of persons carrying out the construction or repair of a main pipeline, or operating it, to foresee the possibility of socially dangerous consequences arising stems from their professional obligations, which consist in not violating safety rules during the construction, operation or repair of a main pipeline. However, the mere existence of an obligation to foresee the occurrence of a socially dangerous result 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 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 qualities of the guilty person, such as their level of education, qualifications, 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 constructing, operating or repairing a main pipeline. For example, a novice worker with little professional experience is just as obliged to foresee the adverse consequences of their unlawful actions (omissions) as an experienced worker with many years of employment experience.
In the case of an unscrupulous attitude, a person constructing, repairing or operating a main pipeline treats their professional duties dishonestly, without conscience and indifferently, that is, they demonstrate a lenient attitude towards the unlawful actions being committed, while foreseeing the possibility of socially dangerous consequences occurring. Consequently, an unscrupulous attitude towards professional duties has the characteristics of an intentional form of guilt in the form of indirect intent, meaning that a person constructing, repairing or operating a main pipeline 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 aimed at violating safety rules during the construction, operation or repair of a main pipeline may constitute the elements of other crimes. If a person foresaw the harmful consequences (causing bodily harm, the death of the victim) as a result of violating safety rules during the construction, operation or repair of a main pipeline 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 Person”. In this case, the intentional violation of safety rules constitutes the method of committing a more dangerous crime — murder; therefore, where the guilty person has the intent to cause the victim's death, the act committed must be classified exclusively under Article 99 of the Criminal Code.
In general, the subjective element of the act under consideration is characterised by a negligent form of guilt.
Motive and purpose do not affect the legal qualification, but they are of 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 the violation of safety rules during the construction, operation or repair of a main pipeline will provide law enforcement authorities with an opportunity to determine the attitude of the person constructing, operating or repairing the main pipeline towards the performance of their professional duties and, accordingly, towards public interests, as well as to understand the guilty person's life values.
The subject of the criminal offence is any sane individual who has reached the age of sixteen and who actually carried out the construction, operation or repair of main pipelines.
The criminal offence under consideration should be distinguished from the intentional damage to or destruction of pipelines (Article 355 of the Criminal Code) and the negligent damage to or destruction of pipelines (Article 356 of the Criminal Code). The act provided for in Article 354 of the Criminal Code is committed by violating special safety rules governing the construction, operation or repair of main pipelines by persons responsible for compliance with the said rules. The acts provided for in Articles 355 and 356 of the Criminal Code are committed by third parties through damage to or destruction of main pipelines, either intentionally or negligently.
The act provided for in Part 1 of Article 354 of the Criminal Code is classified as a criminal misdemeanour.
The acts provided for in Parts 2 and 3 of Article 354 of the Criminal Code are classified as minor crimes.
The act provided for in Part 4 of Article 354 of the Criminal Code is classified as a crime of medium gravity.
Note: Spelling errors, typographical errors and obvious text-recognition errors have been corrected. The content and legal wording have not been substantively changed. The compliance of the provisions presented with the current version of the Criminal Code of the Republic of Kazakhstan has not been separately verified.
Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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