Commentary to article 559. Violation of rules ensuring safety of movement on railway transport The Code of the Republic of Kazakhstan on Administrative Offences
Chapter 30. ADMINISTRATIVE OFFENSES IN TRANSPORT AND ROAD CONSTRUCTION
Chapter 30 of the Administrative Code combines norms designed to protect safety on various types of transport and its infrastructure, which is a common object of all articles of the commented chapter. Administrative regulations provide for liability for administrative offenses for unlawful actions (omissions) in air, rail, water, sea and road transport, as well as at facilities related to their operation.
The public harm and danger of the increasing number of administrative offenses committed in the Republic of Kazakhstan in the field of transport and road management over the years are obvious and require effective legal mechanisms to minimize and eliminate them.
The optional object of administrative offenses under Chapter 28 of the Administrative Code is often public relations in the field of life, health and material well-being of the population, because mainly violations of the Rules of behavior and use of transport endanger people's lives and health, harm both a particular citizen and the whole society. Significant social and economic losses from traffic accidents give this chapter national significance.
In addition to the norms of this chapter, the protection and protection of public relations in the field of transport and road management are also called upon to implement competing norms of criminal codified legislation, which are characterized by greater public danger, and are almost always substantive norms of law.
It should be noted that the important quality of the comments to this chapter is that motivated application is often carried out in the course of clarifying not only the norms of the Administrative Code, but also other norms of codified legislation (Criminal, Civil, Civil Procedure, Criminal Procedure, Tax, Business, Budget, Environmental, Water, Forestry, Labor and other codes), which made it possible to fully disclose the specifics of public relations protected by administrative law in the field of transport and road management.
The comments identify theoretical and some practical problems of administrative and legal regulation of the process of ensuring safety in transport and in the field of road management, as well as the specifics of bringing offenders to administrative responsibility. The content explains and suggests reasonable solutions to problematic issues related to the essence, features, forms and structure of preventive activities of transport delicacy. Specific proposals have been made to improve the current legislation and the practice of its application.
Among the useful properties of the comments to this chapter, it should be noted that they are based on the current norms of administrative law from the Constitution to departmental Rules, Instructions, Regulations, Standards, as well as educational and scientific sources. The comments correspond to the requirements and needs of administrative and procedural activities, which are regulated by the General and Procedural Parts of the Administrative Code, laws and regulations.
For administrative offenses provided for in this chapter, all types of administrative penalties (basic and additional) are provided from warning to administrative arrest, but the jurisdictional powers to impose them, except for the court, are mainly assigned to law enforcement agencies and transport control authorities. The comments explain in detail the mechanism of applying administrative legal support measures in cases of administrative offenses using Regulatory Rulings of the Supreme Court of the Republic of Kazakhstan, as well as letters from the Prosecutor General's Office and other authorized bodies.
Article 559. Violation of rules ensuring safety of movement on railway transport
1. Violation of the rules for the passage of horse-drawn carts (sledges) and the passage of pack, riding animals and livestock across railway tracks, grazing livestock in the right-of-way of railways -
entails a warning or a fine in the amount of five monthly calculation indices.
2. Damage to railway tracks, protective forest stands, snow barriers and other track facilities, structures and alarm and communication devices -
entails a fine for individuals in the amount of five, for legal entities - in the amount of twenty monthly calculation indices.
3. Non-compliance with the established dimensions during loading and unloading of goods -
entails a fine for individuals in the amount of five, for legal entities in the amount of fifteen monthly calculation indices.
4. Placing, dumping or leaving objects on railway tracks that may cause disruption to train traffic, -
they entail a fine in the amount of twenty monthly calculation indices.
5. Passage along railway tracks in unidentified locations -
entails a warning or a fine in the amount of three monthly calculation indices.
6. Violation of the requirements of the legislation of the Republic of Kazakhstan on railway transport, committed during:
1) maintenance of station and main tracks of the railway network and railway access roads;
2) maintenance, operation and repair of rolling stock, technical facilities, railway artificial structures aimed at ensuring traffic safety in railway transport, -
entails a fine for individuals in the amount of three, for officials - in the amount of seven, for small businesses - in the amount of eight, for medium-sized businesses - in the amount of ten, for large businesses - in the amount of thirty monthly calculation indices.
7. Violation of safety rules in railway transport, resulting in damage to railway rolling stock to a condition beyond repair, -
entails a fine for small businesses in the amount of fifty, for medium-sized businesses in the amount of one hundred, for large businesses in the amount of two hundred monthly calculation indices.
8. Violation of safety rules in railway transport, which resulted in damage to rolling stock in an amount requiring its uncoupling and submission for repair, -
entails a fine for small businesses in the amount of thirty, for medium-sized businesses - in the amount of seventy, for large businesses - in the amount of one hundred and fifty monthly calculation indices.
9. Failure to provide information to the authorized body by the participants of the transportation process on the violations of safety on railway tracks within the time limits established by the rules of safety in railway transport -
entails a fine on officials, on small business entities in the amount of twenty, on medium-sized businesses - in the amount of twenty-five, on large business entities - in the amount of thirty monthly calculation indices.
Traffic safety in railway transport is ensured on the basis of the Law of the Republic of Kazakhstan dated December 8, 2001 "On Railway Transport". This law regulates public relations between carriers, participants in the transportation process, government agencies, passengers, senders, recipients, shippers, consignees, and other individuals and legal entities when transporting passengers, baggage, cargo, baggage, and mail by rail. Based on paragraphs 34-11 of Article 14 of this Law, the approval of safety rules for railway transport falls within the competence of the authorized body (Ministry of the Republic of Kazakhstan) for railway transport.
Until 2015, only the Government of the Republic of Kazakhstan had such competence, but due to the state's policy on the decentralization of state power, these powers were transferred to the authorized body. The Order of the Acting Minister of Investment and Development of the Republic of Kazakhstan dated March 26, 2015 No. 334 approved the Rules of Safety in railway transport.
For any type of transport, safety regulations are of paramount importance, which apply both to transport and to the area where the highway runs. In railway transport, this is the passage through tracks that are equipped with special means at the intersection of roads and railways.
Article 114 of the Land Code of the Republic of Kazakhstan dated June 20, 2003 No. 442 defines the order of land for the operation of railway transport. In order to ensure the safety of the population, as well as the safe operation of facilities on land plots adjacent to the allotment zone for the needs of railway transport, security zones with special land use conditions are established, within which those types of activities that are incompatible with the objectives of establishing zones are limited or prohibited. The protected zones of railway transport include: protective forest strips, land plots necessary to ensure the safety, strength and stability of structures, devices and other transport facilities, as well as land plots adjacent to the right-of-way for railway transport located in mudslide, landslide-prone zones and in places subject to other dangerous impacts. Security zones can be established without the seizure of land plots from land owners and land users.
The general object of the offense is the social relations that develop in the field of ensuring safety in railway transport. Since rail transport is a source of increased danger, the optional object of the offense may be the life, health and material well-being of people.
The objective side of Part 1 of the article under consideration is characterized by actions (omissions) in the form of violations of the rules:
1) passage of horse-drawn carts (sleighs) through railway tracks;
2) the passage of pack animals, riding animals and livestock across railway tracks. It should be noted that the passage of a pack or riding animal or livestock across railway tracks can be qualified for each illegal action, as well as in the aggregate;
3) cattle grazing in the railway right-of-way.
According to paragraphs 11 and 12 of section 24 of the Traffic Rules, when animals are driven across railway tracks, the herd must be divided into groups of such numbers that, taking into account the number of drivers, safe passage of each group is ensured. Drivers of horse-drawn carts (sleds), teamsters and owners of pack, harness, riding animals and livestock are not allowed:
1) leave animals unattended in cases that do not exclude their appearance on paved roads;
2) drive animals across railway tracks and roads outside specially designated areas, as well as at night and in conditions of insufficient visibility (except for slaughterhouses at different levels);
3) guide animals along roads with asphalt and cement-concrete pavement if there are other ways.
The subject of an administrative offense in part 1 of this Article is sane individuals who have reached the age of 16, namely drivers of horse-drawn wagons, as well as drivers of riding and pack animals.
The sanction of the article provides for two types of administrative penalties:
1)Warning;
2) a fine in the amount of five monthly calculation indices.
But arbitrary choice of punishment is unacceptable. When making a decision to impose an administrative penalty under the commented article, the above-mentioned officials must take into account the requirements of part 2 of Article 43 of the Administrative Code, which states that "In the absence of circumstances provided for in Article 57 and the note to Article 366 of this Code, the court (judge), the body (official) imposing the administrative penalty is obliged to apply a warning provided for in the relevant article of the Special Part of this Code."
The objective side of part 2 of the commented article is manifested in illegal actions (in rare cases, inaction) that violate traffic safety in railway transport through: technical impact on railway tracks; damage to protective forest plantations, protective structures and other objects, structures, alarm and communication devices.
Despite the evidence of the damage caused by these illegal actions, the fact of bringing paths and structures that exclude the safe operation of transport is of great importance for the qualification of an administrative act, since the appropriate amount of the fine is not able to compensate for the damage caused to the transport system.
Railway tracks, railway stations, passenger platforms, as well as other railway transport facilities related to train movement and shunting operations are high-risk areas and must have a signal fence.
Based on paragraph 16 of the Rules of Safety in Railway Transport, approved by the Order of the Acting Minister of Investment and Development of the Republic of Kazakhstan dated March 26, 2015 No. 334, the consequences of illegal actions specified in this part of the article are incidents. Malfunctions of the track, rolling stock, including wagons manufactured by PatentesTalgo S.L., alarm systems, centralization, interlocking and communication, contact network, power supply and other technical means, as a result of which the train was delayed on the stage or at the station for more than 1 hour, are an incident.
The subjects of an administrative offense of Part 2 of this Article are sane individuals who have reached the age of 16, as well as legal entities.
The objective side of part 3 of the article under study is manifested in illegal actions by non-compliance with the established dimensions when loading or unloading goods. Exceeding the permissible limits of the relevant loads can lead to physical overload of the roadbed, access roads and pose a threat to traffic safety.
The disposition of part 3 of Article 559 of the Administrative Code is set out in the form: "Non-compliance with the established dimensions during loading and unloading of goods." In our opinion, the preposition "and" should be replaced with "or", since non-compliance with the established dimensions during loading cannot exist separately from similar illegal actions during unloading.
Freight shipments by rail are carried out through cargo terminals. In accordance with paragraph 22 of Article 1 of the Law of the Republic of Kazakhstan "On Railway Transport", a cargo terminal is a complex of facilities and technical facilities on an access road designed to provide a range of services to shippers and consignees and to carry out multimodal transport.
The mechanism of transportation of goods, including oversized cargo, by rail is regulated by the Order of the Minister of Investment and Development of the Republic of Kazakhstan dated April 30, 2015 No. 545. The places of loading and unloading are tracks designed for loading and unloading goods at stations open for cargo operations, cargo storage areas, warehouses, sites, platforms. Shippers prepare goods for loading and transportation in such a way as to ensure the safety of movement and loading and unloading operations, as well as the safety of goods, wagons, and containers. Loading, placing and securing of goods in wagons and containers should ensure the safety of train traffic, the possibility of mechanization and safety of loading and unloading operations, and the safety of goods, wagons, and containers in accordance with the requirements of standards. Cargo placement and fastening in wagons and containers is carried out in accordance with the conditions of cargo placement and fastening.
The subjects of an administrative offense of Part 3 of this Article are sane individuals who have reached the age of 16, as well as legal entities.
Part 4 of the commented article provides for liability for illegal actions that may cause disruption of train traffic and even their derailment. The qualifying signs of the objective side of the offense are expressed by three illegal actions in the form of placing, dropping and leaving objects on the railway tracks that may cause disruption to train traffic.
Ensuring the process of compliance with Safety Rules in railway transport is set out in the order of the Acting Minister of Investment and Development of the Republic of Kazakhstan dated March 26, 2015 No. 334. Based on sub-paragraphs 30 and 31 of paragraph 16 of these Rules, the imposition of objects by unauthorized persons on the railway track, which necessitated the use of emergency braking of the train and its stop, should be classified as an incident on transport. It is also fashionable to include other traffic safety violations, cases that resulted from third-party causes that do not fall into the list of safety rules for railway transport.
The subject of an administrative offense of part 4 of this Article is a sane individual who has reached the age of 16.
The objective side of the fifth 5 of this article provides for the administrative responsibility of citizens for passing along railway tracks in unidentified places.
According to paragraphs 34-17 of Article 14 of the Law of the Republic of Kazakhstan dated December 8, 2001 "On Railway Transport", the competence of the authorized body includes the approval of the rules for passengers, citizens and the placement of facilities in high-risk areas of railway transport, work in them, travel and crossing railway tracks. Passageways and exits to passenger platforms and platforms should be accessible to people with disabilities and people with limited mobility (equipped with ramps and specialized elevators).
The equipment and maintenance of railway crossings are the responsibility of station staff and are approved by the head of the authorized body. This procedure was approved by the Order of the Acting Minister of Investment and Development of the Republic of Kazakhstan dated January 23, 2015 No. 55 "On approval of the Rules of organization of railway stations". Based on paragraph 12 of these Rules, crossings and exits to passenger platforms and platforms must be accessible to disabled and low-mobility groups of the population (equipped with ramps, specialized elevators).
It is not allowed to block the passageways to or from the station building, onto platforms, boarding platforms, pedestrian bridges, decks, tunnels with hand luggage, luggage, or other objects.
The subjects of an administrative offense of part 5 of this Article are sane individuals who have reached the age of 16.
The objective side of the sixth 6 of the commented article provides for liability for violation of the requirements of the legislation of the Republic of Kazakhstan on railway transport and manifests itself in illegal actions (omissions) when:
1) maintenance of station and main tracks of the railway network and railway access roads;
2) maintenance, operation and repair of rolling stock, technical facilities, and railway artificial structures aimed at ensuring traffic safety in railway transport.
Based on paragraph 4 of Article 5 of the Law of the Republic of Kazakhstan dated December 8, 2001 "On Railway Transport", the national infrastructure operator operates, maintains, modernizes, and builds the mainline railway network. The construction of new trunk roads is carried out by decision of the authorized body.
In accordance with article 88-4 of the same law, the rights of the authorized body include:
1) maintenance of station and main tracks of the railway network and railway access roads;
2) maintenance, operation and repair of rolling stock;
3) maintenance, operation and repair of technical facilities aimed at ensuring traffic safety in railway transport;
4) maintenance, operation and repair of artificial structures, as well as railway crossings.
The subjects of an administrative offense provided for in Part 6 of this Article may be:
1) sane individuals who have reached the age of 16;
2) officials in accordance with the procedure provided for in Article 30 of the Administrative Code ;
3) legal entities in the form of small, medium and large enterprises.
Part 7 of the commented article assumes responsibility for violating safety rules in railway transport. The objective side of the considered part consists in illegal actions (inactions) that have caused damage to railway rolling stock to a condition that cannot be restored.
Bringing the perpetrators to administrative responsibility does not exclude bringing them to financial responsibility (recovery of the value of lost property).
Article 78 of the Law of the Republic of Kazakhstan dated December 8, 2001 "On Railway Transport" provides for liability for unauthorized occupation, damage or loss of wagons and containers. The carrier, the shipper, the consignee, as well as other persons are not entitled to use wagons and containers that do not belong to them for their own transportation, cargo storage, or to use them for loading without the permission of the owners, unless this is provided for by relevant contracts. For non-compliance with such a requirement, the guilty party, in addition to paying for the use of wagons and containers, bears property liability to the owner in the form of a fine in the amount of fees for the use of wagons and containers. The payment of a fine does not release the guilty party from property liability to the owner, as established by the Civil Code of the Republic of Kazakhstan.
The subjects of an administrative offense provided for in part 7 of this Article may be legal entities in the form of subjects of small, medium and large enterprises.
Part 8 of the article in question provides for liability for violation of safety rules in railway transport. The objective side is expressed in illegal actions (inactions), which result in negative consequences in the form of damage to rolling stock in the amount requiring its uncoupling and submission for repair.
Based on paragraph 16 of the Railway Safety Regulations approved by the Order of the Acting Minister of Investment and Development of the Republic of Kazakhstan dated March 26, 2015 No. 334, the consequences of illegal actions requiring the uncoupling of part of the rolling stock are incidents. The uncoupling of a car from a passenger train en route due to technical malfunctions (is taken into account at all stations except the passenger train formation station).
The subjects of an administrative offense provided for in part 8 of this Article may be legal entities in the form of subjects of small, medium and large enterprises.
The objective side of part 9 of the commented article is expressed in unlawful inaction in the form of failure to provide information to the authorized body about safety violations on railway tracks within the time limits set by the rules of safety in railway transport. Moreover, the disposition of the article determines that the subjects of such an administrative offense may be any participants in the transportation process on railway transport.
Based on paragraphs 2-1 of Article 30 of the Law of the Republic of Kazakhstan dated December 8, 2001 No. 266 "On Railway Transport", the procedure for providing information on accidents in railway transport is provided. Participants in the transportation process and auxiliary services of railway transport are required to inform the authorized body and its territorial divisions about violations of traffic safety on main, station and access roads. Participants in the transportation process and auxiliary services of railway transport provide information about traffic safety violations no later than one hour from the moment of the incident by telephone or fax. Detailed information about traffic safety violations is provided in writing no later than one day after the incident, in accordance with the Safety Regulations for Railway Transport.
The subjects of an administrative offense provided for in Part 9 of this Article may be:
1) officials;
2) legal entities in the form of small, medium and large enterprises.
The subjective side of all parts of the commented article can be expressed either as direct intent or carelessness.
They have the right to initiate proceedings under the commented article and impose an administrative penalty.:
1) in parts one, two, four and five – authorized officials of the internal affairs bodies; (art. 685 of the Administrative Code);
2) in terms of the second, third, fourth, sixth, seventh, eighth and ninth – authorized officials of transport control bodies (art. 691 of the Administrative Code).
Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:
Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);
Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;
Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);
Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);
Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;
Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;
Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;
Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);
Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);
Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;
Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;
Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);
Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;
Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;
Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);
Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;
Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.
Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).
Date of amendment of the act: 01.01.2020 Date of adoption of the act: 01.01.2020 Place of acceptance: 100050000000 Authority that adopted the act: 103001000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 5 Status of the act: new Sphere of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act: COMM / CODE Legal force: 1900 Language of the Act: rus
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