In cases of crimes related to violations of traffic rules and the operation of vehicles, "owners of vehicles who are required to compensate for damage caused by a source of increased danger should be involved as civil defendants.
By the verdict of the Abai District Court of Shymkent, South Kazakhstan region, dated September 09, 2016, P. was sentenced under part 3 of Article 345 of the Criminal Code to 2 years and 6 months in prison with the deprivation of the right to drive a motor vehicle for a period of 5 (five) years, to serve his sentence in a penal colony, the term of serving the sentence was calculated from July 02, 2016. Recovered from P. and LLP "A" in solidarity in favor of T. the amount of material damage caused in the amount of 1,323,988 tenge, compensation for moral damage in the amount of 2,000,000 tenge, representation expenses in the amount of 340,000 tenge, in a shared manner to the state income state duty in the amount of 7,150 tenge from each, from P. to the state income procedural costs for the production of forensic examinations in the amount of 118,203.39 tenge. The fate of the physical evidence is resolved in accordance with the procedure provided for in article 118 of the CPC. By the verdict of the court P. He was found guilty of violating traffic rules while driving a vehicle, which negligently caused the death of S., causing serious and T. moderate harm to health. By the decision of the Appellate Judicial Board for Criminal Cases of the South Kazakhstan Regional Court of November 11, 2016, the verdict of the court was left unchanged, while the board, considering that the court unreasonably recovered material damage, moral damage and representation expenses from LLP "A" in solidarity, excluded the following words from the operative part of the verdict: "and LLP "A" in solidarity", "in equity", "and LLP "A". Having studied the materials of the criminal case and discussed the arguments of the protest, the judicial board concluded that the decision of the court of appeal should be overturned, and the prosecutor's protest should be satisfied on the following grounds. The court's conclusions on the evidence of P.'s guilt in committing the criminal offense charged against him under the circumstances set out in the descriptive and motivational part of the verdict are based on evidence objectively examined and properly evaluated at the court session and correspond to the factual circumstances. By the Court of the actions of P. A proper legal assessment has been given, and they are correctly qualified under part 3 of Article 345 of the Criminal Code. The penalty imposed on P. is in accordance with the requirements of Article 52 of the Criminal Code, taking into account the nature and degree of public danger of the criminal offense committed by him, his personality, including his behavior before and after the commission of the offense, circumstances mitigating and aggravating criminal liability and punishment, within the sanction of the above-mentioned article of the criminal law, is proportionate to the deed, is fair. Judicial acts regarding the proof of guilt, qualification of actions and the measure of punishment against convicted P. are not disputed in the protest. At the same time, the conclusions of the court of appeal on the unreasonableness of the verdict on recovery in favor of the victim in solidarity with LLP "A" for material damage and moral damage, as well as representative expenses, which resulted in the cancellation of the recovery from LLP "A" by excluding it from the operative part of the verdict, are unlawful.
Thus, in accordance with paragraph 6) of part 1 of Article 485 of the CPC, the grounds for cassation review of judicial acts that have entered into force are violations of constitutional rights and freedoms of citizens committed during the investigation or judicial review of a case, or the improper application of criminal and criminal procedure laws, including those that led to the incorrect resolution of a civil claim. There are such grounds for the cassation review of judicial acts in this case. The question of the civil action in the case of the victim T. The issue of compensation for material damage and moral damage from P. and LLP "A", as well as the costs of paying for legal assistance to a representative, was resolved by the court of first instance within the framework of criminal procedure and civil legislation, taking into account the evidence provided and the materials of the criminal case. The court's conclusions on the partial satisfaction of the civil claim are reasonable and legitimate. In accordance with paragraph 18 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 29, 2011 No. 3 "On the practice of applying criminal legislation in cases of crimes related to violations of traffic rules and operation of vehicles", when considering cases of crimes related to violations of traffic safety rules and operation of vehicles, courts must ensure the correct resolution of civil lawsuits, while observing the requirements of substantive and procedural laws, as well as explanations, The data is contained in the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 20, 2005 No. 1 "On consideration of a civil claim in criminal proceedings".
According to paragraph 8 of the said regulatory resolution, a civil claim is brought against the accused (defendant) or persons who are financially responsible for the harm they have caused. By the decision of the Abai District Court of August 24, 2016, in this criminal case, the victim T. was recognized as a civil plaintiff, and LLP "A", like P., as a civil defendant. Paragraph 26 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 20, 2005 No. 1 "On consideration of a civil claim in criminal proceedings" stipulates that the conditions, scope and method of compensation for damage caused by a crime when considering a civil claim are determined in accordance with the norms of civil, labor and other legislation. According to Part 1 of Article 931 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), legal entities and citizens whose activities are associated with increased danger to others (transport organizations, vehicle owners, etc.) are required to compensate for damage caused by a source of increased danger, unless they prove that the damage was caused by force majeure or intent of the victim.. It has been objectively established from the case file that the owner of the vehicle, a Luidor - 225000 minibus, manufactured in 2014, white in color, with the state registration number 815AS/13 (hereinafter referred to as the minibus), is A LLP, which is confirmed by the vehicle registration certificate dated June 12, 2015 XB No. 00056553, insurance policies concluded between LLP "A", indicated as the policyholder, and the South Kazakhstan branches of JSC "Insurance Company "N", JSC "IC "K". According to P.'s testimony given during the pre–trial investigation, he has been the driver of the minibus belonging to A LLP on route No. 125 since 2015, and according to his testimony in court, he worked by oral agreement with citizen E. At the same time, it can be seen from the copy of the 2016 minibus exit log of LLP "A" attached to the case file that on June 28, 2016, i.e. on the day of the accident on service route No. 125, P. passed a medical check, subsequently received access to the vehicle and started work. In addition, according to the information of the State Institution "Department of Passenger Transportation and Highways of the mountains. Shymkent" dated September 08, 2016 No. 32/5-3163, the owner of minibus route No. 125 is LLP "A", which has the above-mentioned minibus. According to the second paragraph of paragraph 18 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 29, 2011 No. 3 "On the practice of applying criminal legislation in cases of crimes related to violations of traffic rules and operation of vehicles" in cases of this category, owners of vehicles must be involved as civil defendants, who, in accordance with part 1 of Article 931 of the Civil Code imposes the obligation to compensate for damage caused by a source of increased danger. Also, when considering citizens' claims for compensation for moral damage caused by a source of increased danger to the courts, in accordance with paragraph 13 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015 No. 7 "On the application by courts of legislation on compensation for moral damage", it must be borne in mind that the owner of the source of increased danger is obliged to compensate for moral damage. Thus, the court of appeal, when considering the criminal case against P. The above circumstances were not taken into account, which led to an unjustified decision to exclude LLP "A" from the list of civil defendants. Based on the above, the judicial board of the Supreme Court for Criminal Cases overturned the decision of the appellate judicial board in respect of P., upholding the verdict of the first instance. The protest of the Prosecutor General of the Republic of Kazakhstan is satisfied.
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