Commentary to article 295. Violation of the rules of traffic safety and operation of railway, air or water transport of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Violation of the rules of traffic safety or operation of railway, air, sea or river transport by a person who, by virtue of his work or position, is obliged to comply with these rules if this act negligently caused serious or moderate harm to human health., —
is punishable by correctional labor for a term of six months to two years, or by restriction of liberty for a term of up to five years, or by arrest for a term of three to six months, or by imprisonment for a term of up to two years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
2. The same act that negligently caused the death of a person, —
is punishable by imprisonment for a term of up to seven years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
3. The act provided for in the first part of this Article, which negligently caused the death of two or more persons, —
is punishable by imprisonment for a term of four to ten years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
4. An act provided for in the first part of this article, if it has not entailed, but has knowingly created a threat of the consequences provided for in the first, second or third parts of this Article., -
is punishable by a fine in the amount of up to one thousand monthly calculation indices or in the amount of the convicted person's salary or other income for a period of up to ten months, or by deprivation of the right to hold certain positions or engage in certain activities for up to three years, or by correctional labor for up to one year, or by arrest for up to four months, or by deprivation of imprisonment for up to one year with or without deprivation of the right to hold certain positions or engage in certain activities for up to two years.
Note. Transport means all types of railway, sea, river and air transport vehicles, including small sea and river vessels.
The public danger of a crime is expressed in the fact that failure to comply with the rules of traffic safety or operation of railway, air, sea or river transport creates a danger of harm to human life and health, property relations, the environment, or harm to their health or life.
The object of the crime is public relations in the field of traffic safety and operation of specific motor vehicles. An additional object here is the life and health of victims or property. Since violations of traffic safety rules or the operation of marine or river transport often cause harm to the environment (pollution by oil, fuels and lubricants of riverbeds, sea surfaces, fish deaths, etc.), an optional object can also be identified. This is public relations in the field of environmental protection.
The subject of the crime is various types of transport. According to art .1 of the Law of the Republic of Kazakhstan "On Transport in the Republic of Kazakhstan" dated September 21, 1994 (as amended and supplemented), transport of the Republic of Kazakhstan is railway, automobile, marine, inland waterway, air, urban electric, including metro, as well as main pipeline transport located on the territory of the Republic of Kazakhstan..
In accordance with art .2 of this Law, relations related to the activities of transport of the Republic of Kazakhstan are regulated by this law, transport codes, and other legislative and regulatory acts of the Republic of Kazakhstan.
Relations related to pipeline transport activities are regulated by the relevant legislation of the Republic of Kazakhstan.
The conditions of transportation, the procedure for using vehicles, ensuring traffic safety, compliance with labor protection rules, fire safety, technical, technological and sanitary standards are determined by regulatory acts in force on the relevant modes of transport, approved in accordance with the established procedure and binding on all participants in transport relations.
Vehicles must have a certificate that determines compliance with safety requirements, medical and sanitary standards, labor protection and environmental standards, international and state standards and specifications, as well as be registered in accordance with the procedure established by law. Vehicles that have not passed certification and are not registered in accordance with the established procedure are not allowed to operate. The certification procedure is determined by the legislation of the Republic of Kazakhstan (Article 15 of the Law of the Republic of Kazakhstan "On Transport in the Republic of Kazakhstan").
Control over the implementation by enterprises, regardless of their affiliation and forms of ownership, of transport legislation, traffic safety and environmental requirements when operating vehicles is carried out by the state transport management body and other state management bodies provided for by the legislation of the Republic of Kazakhstan (art.25 of the Law of the Republic of Kazakhstan "On Transport in the Republic of Kazakhstan").
Railway transport should be understood as mechanical rail transport, regardless of its departmental affiliation (locomotives, trolleys, wagons, gondolas, platforms, tanks, cranes, subway trains).
This does not include mine or in-house transport (electric locomotives, trolleys) that perform purely production functions. At the same time, the actions of the perpetrator should be considered as a violation of labor protection rules (Articles 152 of the Criminal Code) or under articles on crimes against the person (Articles 103-105, 111 of the Criminal Code).
Water transport (sea and river vessels) includes passenger, scientific research, transport, mining (fishing, crab, etc.), processing (floating bases and smelters), auxiliary (tugboats, etc.), technical (dredging, dredging shells, cable laying, etc.), rescue, sports vessels, including including hovercraft and hydrofoils.
These also include small marine and river vessels with a main engine capacity of less than 75 hp and non-self-propelled vessels with a gross tonnage of less than 80 registered tons, motor vessels owned by citizens (regardless of engine power), sailing vessels, rowing boats with a lifting capacity of 100 kilograms or more, kayaks and inflatable vessels. Barges that do not have a mechanical engine and are powered only by a tugboat, as well as a raft, are not such in the criminal law sense.
Air transport includes civil aviation vessels (airplanes, seaplanes, helicopters), as well as other means of aeronautics (balloons, airships, gliders, hang gliders, etc.), the flight on which requires compliance with safety measures.
To qualify an act under Article 295 of the Criminal Code, it does not matter who owns and in whose charge the vehicle is located. The objective side of the crime is characterized by three obligatory signs:
a) an act (action or omission) involving a violation of the rules of traffic safety and operation of railway, air or water transport;
b) criminal consequences, in the form of negligent infliction of serious or moderate harm to human health;
c) the causal relationship between the specified act and the consequences that have occurred. The absence of at least one of them precludes the possibility of establishing the corpus delicti in the actions of a person.
The disposition of Article 295 of the Criminal Code is a blank one and to clarify the signs of the act, one should refer to the Law of the Republic of Kazakhstan "On Transport in the Republic of Kazakhstan" dated September 21, 1994 (as amended and supplemented), to the Law of the Republic of Kazakhstan "On Road Safety" dated July 15, 1996 (as amended and supplemented), to the Law of the Republic of Kazakhstan "On Railway Transport" dated December 8, 2001 (as amended and supplemented), to the Law of the Republic of Kazakhstan "On Road Transport" dated July 4, 2003 (as amended and supplemented), to the Law of the Republic of Kazakhstan "On Inland Waterway Transport" dated July 6, 2004 G. (with the post. ed. and add.), to the Decree of the President of the Republic of Kazakhstan "On the Transport Strategy of the Republic of Kazakhstan until 2015" dated April 11, 2006, as well as to the rules for the safety of their movement and operation established on railway, air or water transport. This approach of the legislator is dictated by the fact that the continuous improvement of railway, water, air and motor transport inevitably causes changes in the relevant rules of traffic safety and operation of these modes of transport, which are not timely covered by the regulatory action of the criminal law. Therefore, ensuring effective criminal law protection of this group of public relations determines the existence of norms with blank dispositions.
The regulations governing relations in transport include:
a) in railway transport – the Law of the Republic of Kazakhstan "On Railway Transport" dated December 8, 2001 (as amended and supplemented); Resolution of the Government of the Republic of Kazakhstan "On Approval of the Provisional Charter of the Railways of the Republic of Kazakhstan" dated January 18, 1996; Order of the Minister of Transport and Communications of the Republic of Kazakhstan "On Approval of the Rules for the Carriage of Passengers, Baggage and cargo transportation by rail of the Republic of Kazakhstan" dated March 18, 2004, as well as "Rules of technical operation of Railways of the Republic of Kazakhstan"; "Instructions for train movement and shunting work on the railways of the Republic of Kazakhstan", "Rules of technical operation of industrial railway transport of the Republic of Kazakhstan" and others;
b) in water transport – the Water Code of the Republic of Kazakhstan dated July 9, 2003 (as amended and supplemented); Resolution of the Government of the Republic of Kazakhstan "On approval of the Rules for maintaining the State Water Cadastre" dated December 31, 2003, as well as "International Rules for preventing Collisions"; "Rules for the Technical Operation of ships"; "Commercial Shipping Code of the Republic of Kazakhstan" and others;
c) in air transport - the Air Code of the Republic of Kazakhstan; Resolution of the Government of the Republic of Kazakhstan "On approval of the Regulations on the Use of the Airspace of the Republic of Kazakhstan" dated February 28, 1997; Resolution of the Government of the Republic of Kazakhstan "On Approval of the Basic Rules of Flights in the Airspace of the Republic of Kazakhstan" dated July 17, 2003, as well as "Rules for the carriage of passengers, baggage and cargo on the air lines of the Republic of Kazakhstan"; "Flight Operations Manual in civil aviation of the Republic of Kazakhstan"; "Manual on the technical operation of aircraft in civil aviation of the Republic of Kazakhstan" and others.
There are a large number of regulations in force on these types of transport, referring to which makes it possible to correctly determine the nature of the proper behavior of the guilty person. When qualifying the actions of the perpetrator, it is necessary to find out which points (articles or paragraphs) of the rules of traffic safety or operation of transport were violated by him.
Violation of traffic safety rules may result, for example, in driving at a forbidding semaphore signal, speeding a train, exceeding the permitted speed of a vessel on approaches to ports, failing to give appropriate sound signals, violating the order of divergence of vessels, non-compliance by aircraft pilots with the flight route, altitude and flight corridors, etc.
A violation of the rules of operation may be recognized as the launch of a technically defective transport, the use of a transport vessel for other purposes, the transportation of prohibited items, improper fastening of cargo, failure to take measures to ensure the safety of passengers during their boarding, etc.
For example, when a railway train was moving at high speed under the control of train drivers V. and D., bushes caught fire from the ignition of a spark. At that moment, V. and D. were distracted by the conversation and did not notice what was happening. As a result of the fire, a large area of the forest was burned, and when extinguishing the fire, forester P. received a 2nd degree burn.
At the same time, violation of the rules of operation not related to traffic (for example, during loading and unloading or repair work), in case of harmful consequences, entails liability under the relevant articles on crimes against the person, and in some cases under art.152 of the Criminal Code "Violation of labor protection rules".
The crime is considered completed from the moment of the occurrence of the consequences specified in the disposition of this norm. According to Part 1 of Article 295 of the Criminal Code– it is negligent infliction of serious or moderate harm to human health. Part 2 of this rule is the death of a person by negligence, and Part 3 is the death of two or more persons by negligence. The qualification of this crime will not change even in cases where the act caused all the harmful consequences indicated in its disposition. For example, one victim suffered serious harm to his health, while another suffered moderate harm to his health.
To determine the severity of the damage caused to the victim's health, it is necessary to appoint a forensic medical examination. When determining serious harm to health due to negligence, one should be guided by Part 1 of Article 111 of the Criminal Code. Signs of moderate severity and serious harm to the victim's health are determined according to Order of the Minister of Health of the Republic of Kazakhstan "Rules of organization and production of forensic medical examination" dated December 20, 2004 No. 875/1. In the case of serious injury to health due to negligence during the commission of this crime, additional qualifications are not required under Part 1 of Article 111 of the Criminal Code, since the act is fully covered by Part 1 of Article 295 of the Criminal Code of the Republic of Kazakhstan.
In order to be held criminally liable under Article 295 of the Criminal Code, it is necessary to establish a causal relationship between this violation and the socially dangerous consequences that have occurred. Moreover, a causal relationship should be established not just with the action or omission of a person, but with a violation of the relevant safety rules that have become the direct cause of harmful consequences.
The subject of the crime is special. They can be a sane individual who has reached the age of 16, who, by virtue of his work or position, is obliged to comply with the rules of traffic safety and operation of railway, water or air transport. The range of subjects of this crime is determined by departmental regulations governing the official functions of a particular transport worker. These include:
- in railway transport: train driver, his assistant, train conductor, railway station attendants, dispatchers, etc.
- in air transport: pilot, navigator, flight mechanic, air traffic controller, etc.
- on water transport: the ship's captain, his assistant, radio operator, skipper, etc.
Drivers of personal boats, sports planes, cashiers, porters, as well as military personnel, who in such cases will be liable under Articles 300, 392 or 393 of the Criminal Code, cannot be the subjects of this crime.
The subjective side is characterized by a careless form of guilt in the form of criminal arrogance or criminal negligence (art.21 of the Criminal Code). In the first case, the perpetrator anticipates that as a result of violating specific points of the rules of traffic safety or operation of transport, harmful consequences defined in the law may occur, but without sufficient grounds, he frivolously expects to prevent them. In the second case, the perpetrator does not foresee the possibility of these consequences, although with due care and foresight he should have and could have foreseen them. 295 of the Criminal Code establishes responsibility for the same act that negligently caused the death of a person.
295 of the Criminal Code establishes responsibility for the act provided for in Part 1 of this Article, which negligently resulted in the death of two or more persons. As in the main body, on the subjective side, negligence in the death of one or more persons can be expressed in criminal arrogance or criminal negligence.
295 of the Criminal Code provides for liability for violation of the rules of traffic safety or operation of railway, air or water transport by a person who, by virtue of his work or position, is obliged to comply with these rules in cases where the perpetrator by these actions knowingly created a threat of harmful consequences provided for in parts 1-3 of this article. At the same time, the knowledge of creating a threat of these consequences means that the perpetrator reliably knew and assumed that if these rules were violated, socially dangerous consequences would inevitably occur.
Therefore, the act provided for in Part 4 of Article 295 of the Criminal Code is considered completed from the moment the threat of harmful consequences specified in parts 1-3 of Article 295 of the Criminal Code is created. The issue of creating a real threat of harmful consequences provided for in Parts 1-3 of Article 295 of the Criminal Code must be resolved taking into account all the circumstances of a particular criminal case. Such a step by the legislator is dictated by the possibility of serious consequences resulting from the slightest oversight and inattention in managing complex and objectively dangerous equipment.
Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.
Date of amendment of the act: 08/02/2007 Date of adoption of the act: 08/02/2007 Place of acceptance: NO Authority that adopted the act: 180000000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 167 Status of the act: new Sphere of legal relations: 028000000000 Report form: COMM Legal force: 1900 Language of the Act: rus
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