Commentary to article 296. Violation of the rules of traffic and operation of vehicles by persons driving vehicles of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Violation by a person driving a car, trolleybus, tram or other mechanical vehicle of the rules of the road or the operation of vehicles, which negligently caused serious or moderate harm to human health, —
is punishable 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 drive a vehicle 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 five years with deprivation of the right to drive a vehicle 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 five to ten years.
Note. Other mechanical vehicles in this article include tractors, motorcycles, and other self-propelled vehicles.
The public danger of a crime is expressed in the fact that if the rules of the road and the operation of vehicles are not followed, significant harm is caused to human life and health, or property relations.
296 of the Criminal Code provides for liability for violation by a person driving a car, trolleybus, tram or other mechanical vehicle of the rules of the road or the operation of vehicles, which negligently caused serious or moderate harm to the health of the victim.
In the resolution of the Plenum of the Supreme Court of Kaz.SSR "On Judicial Practice in cases of motor Vehicle crimes" dated September 23, 1983, paragraph 2 clarifies that the courts are required to fully and comprehensively investigate all the circumstances of a road accident in order to exclude the facts of unjustified conviction or exoneration of persons whose actions contain the corpus delicti; carefully clarify what rules of traffic safety and operation of transport have been violated, is the violation causally related to the consequences that have occurred; identify other persons responsible for creating an emergency situation, violating the rules of operation of vehicles and highways.
The direct object of the crime is public relations in the field of traffic safety and the operation of specific types of motor vehicles. This refers to all types of mechanical transport, with the exception of rail, water and air transport. An additional object here is relations that ensure the life and health of citizens or property relations.
296 of the Criminal Code refers to all types of cars (buses, cars and trucks), motor vehicles (motorcycles, scooters, etc.), electric vehicles (trams, trolleybuses), tractors and other self-propelled vehicles (scrapers, graders, pavers, road rollers, excavators, self-propelled cranes, forklift truck, etc.). All these self-propelled vehicles are considered as vehicles only during their movement on streets and roads. In case of violation of the rules of operation of such machines during the direct performance of production work (road, construction, sowing, loading and unloading), liability under art.296 of the Criminal Code is excluded. There are two main features of transport:
self-propelled vehicles, that is, they are powered by internal combustion engines with a working volume of more than 50 cc. or equivalent engines of another type (electric, steam, gas, etc.);
the order of their movement is regulated by the Rules of the road.
According to art .1 of the Law of the Republic of Kazakhstan "On Motor Transport" dated July 4, 2003 (as amended and supplemented):
Road transport is a branch of the economy, the main area of activity of which is the organization and implementation of transportation of passengers, baggage, cargo and mail using vehicles and infrastructure.;
An automobile vehicle is a unit of rolling stock of motor transport, including buses, minibuses, cars and trucks, automobile trailers, semi–trailers for tractor units, as well as specialized vehicles (designed to transport certain types of goods) and special vehicles (designed to perform various, mainly non-transportation, work);
passenger car – a motor vehicle designed for the automobile transportation of passengers and luggage and having no more than eight seats, excluding the driver's seat;
technical operation of motor vehicles is a set of measures, technical impacts (diagnosis, maintenance, repair) aimed at organizing and ensuring the safe operation of motor vehicles. Other self-propelled machines should be understood as any road, construction, agricultural and other special machines (excavator, grader, crane, scraper, forklift, etc.).
Mopeds, bicycles with outboard engines and other vehicles with an engine capacity of less than 50 cc and a maximum speed of no more than 50 km/h, as well as trailers and semi-trailers of cars, do not belong to the number of vehicles in the criminal law sense, since they do not have their own engine and therefore cannot be classified as self-propelled cars. Causing harm to human health or property damage in case of violation of traffic rules when driving a moped, bicycle or horse-drawn transport, liability is possible under art.300 of the Criminal Code "Violation of rules ensuring safe operation of transport", art.111 of the Criminal Code "Reckless injury to health" or art.188 of the Criminal Code "Reckless destruction or damage to other people's property".
From the objective side, the crime is characterized by three mandatory signs: a) violation of the rules of the road and operation of vehicles; b) the presence of harmful consequences provided for in the law; c) the causal relationship between the violation of these rules and the harmful consequences resulting from these violations.
The disposition of Article 296 of the Criminal Code is blank and refers to the Law of the Republic of Kazakhstan "On Transport" 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 Automobile transport" dated July 4, 2003 (as amended and supplemented), 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. At the same time, the main regulatory act defining the rights and obligations of all road users is the "Rules of the Road". Therefore, in order to bring a person to criminal responsibility under Article 296 of the Criminal Code who is driving a vehicle, first of all, it is necessary to establish the fact that he violated certain points of the aforementioned "Rules", which led to the onset of harmful consequences. In the case of innocent infliction, there is no corpus delicti in the actions of such a person (driver).
According to art .1 of the Law of the Republic of Kazakhstan "On Road Safety" dated July 15, 1996.:
1) road traffic is a set of social relations that arise when people and goods are transported along roads with or without vehicles (pedestrians), as well as in the process of regulating the conditions of this movement; 2) road safety is the state of traffic that reflects the degree of protection of its participants and the state from road accidents and their consequences;
3) ensuring road safety is an activity aimed at preventing the occurrence of road accidents and reducing the severity of their consequences.
Violation of the rules of the road can be expressed in speeding, in non-compliance with the order of passage of intersections, in violation of the rules of overtaking, in violation of the rules when reversing, in driving to the left side of the road, etc.
Violation of the rules of movement of vehicles is possible during its movement, that is, from the moment when the vehicle starts moving until it stops completely. The drunken state of the driver involved in a traffic accident does not always indicate that the driver is to blame for the incident. Driving under the influence of alcohol is an administrative responsibility.
Therefore, in cases of violation of the "Rules of the Road" by a drunk driver, it is necessary to establish the fact that he violated these Rules, which caused a traffic accident and the consequences provided for in Parts 1-3 of art.296 of the Criminal Code.
Article 296 of the Criminal Code also provides for liability for violation of the rules of operation, which may occur in the case of driving a technically defective vehicle, transporting people in a car not specifically designed for this purpose, in case of non-compliance with the requirements for the dimensions of goods, etc. It is important to note that we are talking about those violations of the rules of operation that are closely related to ensuring road safety.
For example, M., not knowing that N.'s car was in a technically defective condition, the brakes did not work, drove it without permission and collided with an oncoming car. As a result of the accident, the driver of the oncoming car O. suffered minor health damage, and M. himself suffered moderate health damage.
Violations of the rules of technical operation of vehicles during repair, loading and unloading, harvesting and other operations, even if they are committed while the vehicle is moving, cannot be qualified under art.296 of the Criminal Code. In such cases, the actions of the perpetrator are subject to qualification under articles of the Criminal Code, which provide for liability for violations of these rules, and in appropriate cases - for crimes against the person, for the destruction or damage of other people's property.
In practice, there are cases when a person driving a vehicle leaves it without taking measures to prevent spontaneous movement of vehicles on an incline. This can lead to a car moving spontaneously, for example, hitting a kiosk, pedestrian, etc. The rules of the road prohibit the driver from leaving his seat or leaving the vehicle unless measures are taken to prevent spontaneous movement of the vehicle. In such cases, the drivers of this transport will be liable under art.296 of the Criminal Code for violating the rules of operation of the vehicle.
The actions of a driver guilty of violating traffic safety and vehicle operation rules, which caused moderate or serious harm to the victim and left him without assistance, are subject to qualification under Articles 296 and Part 1 of Article 119 of the Criminal Code of the Republic of Kazakhstan, when the victim, as a result of the harm to his health, turned out to be in a life-threatening condition for the perpetrator.. Therefore, in cases of causing the specified harm to health, if they did not pose a danger to the victim's life due to the circumstances of the case, there is no danger in the actions of the driver.
A causal relationship in traffic crimes should be established in cases where the harmful consequences that have occurred naturally result from violations of traffic rules and vehicle operation by a person. In such cases, the decision on the responsibility of the perpetrators depends on the correct establishment of the causal relationship. It should be noted that the consequences that have occurred are often the result of the interaction of a number of causes and conditions. They can be not only illegal actions of drivers of motor vehicles, but also improper behavior of other road users, malfunction of transport, adverse weather conditions, etc. In order to establish the fact of a violation and its correct assessment, it is necessary to conduct an automotive technical examination. In the absence of violations on the part of the driver, his liability under art.296 of the Criminal Code is excluded.
The place where a traffic crime was committed (highway, country road, courtyard, territory of an enterprise, railway crossing, etc.) does not affect the qualification and responsibility for the perpetrator comes in accordance with the established procedure under art.296 of the Criminal Code. When committing this crime, liability is possible only in the event of harmful consequences (in the form of serious or moderate harm to health), which are causally related to violations of traffic rules or the operation of vehicles. If a minor injury has been inflicted on the victim, then administrative responsibility ensues.
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 296 of the Criminal Code.
In the event of material damage (in the absence of consequences provided for in Article 296 of the Criminal Code), the perpetrator will be liable under Articles 187 or 188 of the Criminal Code (intentional or careless destruction or damage to other people's property).
In the resolution of the Plenum of the Supreme Court of Kaz.SSR "On Judicial practice in cases of motor vehicle crimes" dated September 23, 1983, paragraph 4 states that courts must strictly comply with the requirement of the law on the individualization of punishment, not to allow leniency against those responsible for gross violations of traffic safety rules and the operation of motor vehicles, which entailed severe consequences.
Violations of the rules of traffic safety and operation of motor vehicles that have resulted in death, moderate injury or serious harm to the victim, destruction or damage to property, should be qualified depending on the consequences under Parts 1, 2 or 3 of art.296 of the Criminal Code of the Republic of Kazakhstan without additional qualification under articles on crimes against life, health and articles about the destruction or damage of property.
If the vehicle was intentionally used as a means of committing murder, then such criminal acts should be qualified under the relevant article against the person (Article 96 of the Criminal Code) without additional qualification under Article 296 of the Criminal Code.
The court has no right to impute to the guilty person, instead of another violation of the rules of the road and the operation of vehicles, if this entails a change in the wording of the charge.
In paragraph 8 of the above-mentioned resolution, the Supreme Court clarifies that, in order to further improve the prevention of transport crimes, courts should take all measures provided for by law to clarify the causes and conditions conducive to the commission of these crimes, and respond with specific definitions to shortcomings and omissions in the work of officials of car farms, road construction, and other enterprises and organizations. to seek from them the elimination of these shortcomings.
The subject of a crime may be a person who has reached the age of 16, who has negligently committed a violation of the rules of the road or the operation of vehicles, resulting in the occurrence of harmful consequences specified in the law. To qualify the criminal actions of the perpetrator, it does not matter whether he was a transport worker or a non-professional driver, just as it does not matter whether he even has a driver's license or whether he voluntarily used someone else's car, motorcycle, etc. Thus, according to the law, it can be a person driving a car, trolleybus, tram or other mechanical vehicle.
In forensic investigation practice, there are cases of accidents when cadet drivers or driving instructors are at the wheel of a car. In such cases, the instructor should be responsible if he did not take timely measures to prevent an accident. In the event of a gross violation of the Rules of the road by a learner driver, upon the occurrence of the consequences provided for in Parts 1-3 of art.296 of the Criminal Code, the responsibility of the learner is not excluded.
296 of the Criminal Code, military personnel or persons liable for military service may not be subjects during training camps. Such persons are responsible under the article providing for liability for violating the rules of driving or operating combat, special or transport vehicles - Article 391 of the Criminal Code, as they infringe on the established procedure for military service.
On the subjective side, the crime is characterized by a careless form of guilt. Since violations of the rules of the road and the operation of vehicles necessarily imply the occurrence of the consequences specified in the law, the driver's mental attitude towards the violation of these rules cannot be considered as a form of guilt. Here, the guilt of a subject in the criminal law sense is determined by his attitude to the consequences that have occurred, therefore, it should be recognized that the crime provided for in Article 296 of the Criminal Code is committed with only one form of guilt - negligent, which manifests itself in two types: criminal arrogance and criminal negligence.
When committing an act in the form of criminal arrogance, the perpetrator foresees the possibility of socially dangerous consequences of violating traffic rules or operating vehicles, but frivolously expects to prevent them. This calculation is based, for example, on driving experience, good knowledge of the road section, etc. For example, when a driver runs a red light, he assumes that an accident will not happen, counts on driving experience, etc.
In case of criminal negligence, the perpetrator does not foresee the possibility of harmful consequences of his actions (inaction), although with due care and foresight he should have and could have foreseen these consequences. For example, when driving in reverse, the driver did not look in the mirror and ran over a tanker who was filling his tank with gasoline. But if the driver had looked in the rearview mirror, this might not have happened.
In cases where a vehicle was intentionally used for the purpose of murder, injury to the victim's health, or destruction of property, such criminal acts should be classified under articles of the Criminal Code on crimes against life, health, or under articles of the Criminal Code on destruction or damage to other people's property.
Motor vehicle crimes should be considered as committed through negligence, since the subjective side of these acts is determined by a person's carelessness to the possibility of socially dangerous consequences if they violate traffic safety rules or operate vehicles.
Clarifying the motive and purpose of the behavior of those responsible for committing a crime under Article 296 of the Criminal Code is essential in sentencing, as it can be considered either as a mitigating or as an aggravating circumstance.
The contents of the qualifying features provided for in Parts 2 and 3 of Article 296 of the Criminal Code are identical to the qualifying features provided for in parts 2 and 3 of Article 295 of the Criminal Code.
Several acts provided for in different parts of Article 296 of the Criminal Code, committed by the same person at different times, are subject to qualification under the relevant part of the specified article independently. If, in violation of traffic rules or the operation of vehicles, the person driving the vehicle simultaneously causes serious harm to the health of one victim and death by negligence to one or more persons, then the act as a whole is subject to qualification under the relevant part of art.296 of the Criminal Code, which provides for the onset of more serious consequences. At the same time, less serious consequences caused by the same act should be indicated at the presentation of charges and in the court verdict.
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
Criminal Code, Comments to the Criminal Code, Normative resolution of the Supreme Court, Criminal legislation, Normative legal acts of the Republic of Kazakhstan
