On the practice of applying criminal legislation in cases of criminal offenses related to violations of traffic rules and vehicle operation

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 29, 2011 No. 3.

      The footnote. The title is amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).       The footnote. There are numbers all over the text "300", "297", "298" replaced by numbers , respectively "351", "347", "348" in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

     In connection with the issues that have arisen in judicial practice when considering cases of motor vehicle criminal offenses, and in order to ensure the correct and uniform application of legislation in cases of this category, the plenary session of the Supreme Court of the Republic of Kazakhstan

     Decides:

     The footnote. The preamble as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

To draw the attention of the courts to the fact that criminal liability for criminal offenses provided for in Articles 345, 345-1, 346 (parts three, four, five and six), 348, 349 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) occurs only if a violation of traffic rules or the operation of vehicles has resulted in the consequences are in the form of negligent infliction of moderate or serious harm to human health, or the death of one or more persons.

     No consequences are required for criminal prosecution under the first part of Article 346 of the Criminal Code.

     According to the second part of Article 346 of the Criminal Code, liability occurs in the presence of consequences in the form of careless damage to other people's vehicles, goods, road and other structures or other property, as well as causing minor harm to human health.

     The footnote. Paragraph 1 is amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).

     1-1. The fact that a person is in a state of alcoholic, narcotic and (or) substance abuse intoxication at the time of committing a criminal offense is a mandatory sign of the acts provided for in Article 345-1 of the Criminal Code.

     To qualify an act under the relevant part of Article 346 of the Criminal Code, two circumstances must be established.: 1) the presence of a person at the time of the commission of a criminal offense in a state of alcoholic, narcotic (or) substance abuse intoxication; 2) the fact that the person was deprived of the right to drive a vehicle before committing this act. The presence of only one of these circumstances precludes the qualification of an act under article 346 of the Criminal Code.

     The footnote. The regulatory resolution was supplemented by paragraph 1-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).

To clarify that the subject of the criminal offense provided for in articles 345, 346, 347, 348, 349, 351 The Criminal Code recognizes a person who has reached the age of 16 at the time of committing a criminal offense, who was driving a motor vehicle and committed a violation of traffic rules or vehicle operation. The presence or absence of such a person's driver's license, as well as the knowledge and skills of its operation, does not affect the basis of criminal liability.

     The footnote. Paragraph 2 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

When classifying a vehicle as a mechanical vessel, one should proceed from the disposition of Article 345 of the Criminal Code and subparagraph 38) of Article 1 of the Law of the Republic of Kazakhstan dated April 17, 2014 No. 194-V "On Road Traffic" (hereinafter referred to as the Law "On Road Traffic"), as well as subparagraph 45) of paragraph 2 of Section 1 of the Rules of the Road approved by Resolution of the Government of the Republic of Kazakhstan dated November 13 , 2014 No. 1196 (hereinafter – Rules of the Road), according to which a self-propelled road vehicle powered by an engine is recognized as a mechanical vehicle, including cars, trolleybuses, trams (with the exception of mopeds and rail vehicles), tractors and self-propelled vehicles when they participate in road traffic.

      In accordance with sub–paragraphs 38) and 41) of Article 1 of the Law "On Road Traffic" and sub-paragraph 46) of paragraph 2 of section 1 of the Rules of the Road, mechanical vehicles do not include a moped, a two- or three-wheeled vehicle equipped with an internal combustion engine with a cylinder volume not exceeding fifty cubic centimeters, or an electric motor., and having a maximum design speed of no more than fifty kilometers per hour. Bicycles with an outboard motor, scooters, scooters and other vehicles with similar characteristics are equated to mopeds.

      A passenger, pedestrian, or other road user, as well as a person driving a non-mechanical vehicle, are subject to criminal liability for a criminal offense provided for in the relevant part of Article 351 of the Criminal Code, provided that their violations of traffic rules negligently caused serious harm to human health or the death of one or more persons.

     The footnote. Paragraph 3 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

Actions of persons driving vehicles when performing work not related to traffic (for example, loading and unloading, repair and refueling of vehicles, construction, road, agricultural and other non-transportation work), which entailed the occurrence of the consequences specified in Articles 345, 346 of the Criminal Code, depending on the specific circumstances of the case, are subject to qualifications under articles of the Criminal Code that provide for liability for violating the rules of certain jobs, safety regulations, or for a criminal offense against a person.

     The footnote. Paragraph 4 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

Violation of the rules of driving or operating a combat, special or transport vehicle of the Armed Forces of the Republic of Kazakhstan by a person who is subject to the status of a serviceman, which negligently caused serious harm to human health or death, is subject to qualification under the relevant part of Articles 463, 466 of the Criminal Code.

      A serviceman is responsible for violations of traffic rules when driving other vehicles or operating them in accordance with the relevant part of Articles 345, 346 of the Criminal Code.

     The footnote. Paragraph 5 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

Taking into account the blank nature of the dispositions of Articles 345, 346, 348, 349, 351 of the Criminal Code, the decision on the qualification of the suspect's act, the indictment (protocol on criminal misconduct, the decision on the application of writ proceedings), the verdict (resolution) of the court should contain an indication of which specific points of the rules of the road or the operation of vehicles violated by the perpetrator, and the content of these violations must also be disclosed.

     Violations of traffic rules or the operation of vehicles that are not causally related to the socially dangerous consequences that have occurred (for example, the driver's absence of a driver's license at the time of a traffic accident) cannot form the objective side of these criminal offenses and are subject to exclusion from the charge.

     The footnote. Paragraph 6 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

When socially dangerous consequences resulted from a traffic accident involving several persons driving vehicles, it is necessary to establish which specific traffic rules were violated by each of them, as well as the causal relationship between each person's actions and the socially dangerous consequences.

      At the same time, it is necessary to find out which of them created obstacles or a danger to other drivers, whether the latter had the technical capability and whether they took all measures to avoid hitting or colliding with another vehicle or other obstacle that got in their way, and also pay attention to whether the following was observed As a driver, paragraph 1 of section 10 of the rules of the road, according to which he must choose a speed that allows him to constantly monitor the movement of the vehicle.

      If the harmful consequences of a road traffic accident were the result of joint actions of several persons, but among them were not only the drivers of vehicles specified in Articles 345, 346 of the Criminal Code, but also others (for example, pedestrians, cyclists, etc.), then Articles 345, 346 apply to the persons driving the vehicle. Illegal actions of other persons are subject to qualification under Article 351 of the Criminal Code.

The footnote. Paragraph 7 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

When appointing an automotive technical examination, it should be borne in mind that questions of a legal nature cannot be raised with the permission of experts.

     Automotive technical expertise resolves only special technical issues, and the object of expert research may also be circumstances related to the actions of the driver of the vehicle and other road users, as specifically expressed.

      When passing sentence, the court is obliged to indicate which of the initial data proposed to the expert, on the basis of which calculations were made, are recognized as reliable, and to evaluate the expert opinion. At the same time, the expert's opinion, due to the requirements of the second part of Article 25 of the Criminal Procedure Code of the Republic of Kazakhstan, does not have an advantage over other evidence, is subject to analysis, comparison and evaluation in conjunction with other evidence examined in the case.

     The footnote. Paragraph 8 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

The acts provided for in various parts of Articles 345, 346 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, one or more persons are negligently harmed at the same time, as well as the death of one or more persons, then the act as a whole is subject to qualification according to the relevant part of Articles 345, 346 of the Criminal Code, providing for the occurrence of more serious consequences. At the same time, the less serious consequences caused by the same act should be indicated when drawing up the indictment and in the verdict.

     The footnote. Paragraph 9 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

If a person intentionally used a vehicle for the purpose of murder, injury to health, or destruction or damage to other people's property, the act should be qualified under articles of the special part of the Criminal Code on criminal offenses against the person or against property, without additional qualification under Articles 345, 346, 348, 351 of the Criminal Code.

     The footnote. Paragraph 10 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

The actions of a driver guilty of violating traffic rules or operating vehicles, upon the occurrence of the consequences provided for in Articles 345, 346, 351 of the Criminal Code, and leaving the scene of a traffic accident, should be classified according to the totality of crimes provided for in Articles 345, 346, 351 and 347 of the Criminal Code.

      In accordance with the note to Article 347 of the Criminal Code, a person who leaves the scene of a traffic accident in connection with providing assistance to victims is exempt from criminal liability under this article.

      A person cannot be held responsible under Article 347 of the Criminal Code even when he leaves the scene of a traffic accident in order to report the incident to the police, to call for additional assistance if it is impossible to provide assistance to the victim on his own at the scene of the traffic accident.

     The footnote. Paragraph 11 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

If a person who has stolen or stolen a motor vehicle, while driving it, commits a violation of the rules of the road or the operation of vehicles, resulting in the consequences specified in Articles 345, 346 of the Criminal Code, then his actions should be qualified according to the totality of the crimes committed, provided for respectively in Articles 188 or 200 of the Criminal Code, as well as, depending on the specific circumstances of the case, articles 345, 346, 347 CC.

     The footnote. Paragraph 12 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

According to the first part of Article 348 of the Criminal Code, criminal liability occurs only if the substandard repair of vehicles, as well as the commissioning of obviously technically defective vehicles, were causally related to the consequences provided for in this article, the possibility of which the perpetrator foresaw, but presumed to eliminate them, or did not foresee, although he should have and could have foreseen it.

     Substandard repairs mean the performance of work to restore the functional capabilities of defective vehicles and equipment that deviate from established technological rules and quality standards.

     The commissioning of technically defective vehicles should be understood as the issuance by an authorized person of a permit for the intended use of a vehicle with technical malfunctions that endanger the safety of movement or operation of the vehicle (for example, malfunctions of the braking system, steering, wheel mounting, control devices, automation, etc.).

     Taking into account the fact that issues related to the repair of vehicles and their commissioning in a technically sound condition require special knowledge, for the correct resolution of cases it is necessary to conduct expert examinations, including automotive technical ones.

The subjects of the criminal offense provided for in the first part of Article 348 of the Criminal Code may be employees of motor transport organizations, regardless of their organizational and legal forms and forms of ownership, engaged in the transportation of passengers and cargo by road and urban electric transport, as well as employees of other organizations who are subject to current instructions or rules, relevant orders or by virtue of their official position regulations, type of activity, responsibility for the repair and technical condition or operation of vehicles, who performed substandard repairs that negligently caused death or serious injury to health.

     The footnote. Paragraph 14 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

The admission by an official, owner or owner of a vehicle to drive a vehicle of a person deprived of the right to drive vehicles and who is in a state of alcoholic, narcotic and (or) substance abuse intoxication entails liability under Article 346 of the Criminal Code.

     The actions of an official, owner or owner of a vehicle to allow a driver who does not have the right to drive vehicles or the right to drive vehicles of the appropriate category to drive a vehicle, if this act negligently caused moderate or serious harm to health or death of one or more persons, are subject to qualification under the relevant part of Article 349 of the Criminal Code.

     The footnote. Paragraph 15 is amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).

In accordance with part three of Article 50 of the Criminal Code, the court has the right to impose additional punishment for committing a criminal offense provided for in part one of Article 348, part one of Article 349, article 351 of the Criminal Code in the form of deprivation of the right to hold certain positions or engage in certain activities if, taking into account the nature and degree of public danger of the committed act and the identity of the perpetrator, it finds it impossible retaining his right to hold certain positions or engage in certain activities.

      If the amnesty act provides for exemption only from the main punishment and does not eliminate the application of additional punishment, the court, upon finding a person guilty of committing criminal offenses provided for in Articles 345, 346, parts two, three and four of Article 348, parts two, three and four of Article 349 of the Criminal Code, decides a guilty verdict, with the release of a convicted person from basic punishment and the imposition of additional punishment in the form of deprivation of the right to hold certain positions or engage in certain activities.

     The footnote. Paragraph 16 as amended by the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

     16-1. In cases of criminal transport offences, courts should bear in mind that a motor vehicle that is the object of a traffic accident cannot be classified as an instrument or means of committing a criminal offence and confiscated to the State's revenue on this basis.

     The footnote. The regulatory resolution was supplemented by paragraph 16-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).

In accordance with paragraph 1) of the fifth part of Article 46 of the Criminal Code, those convicted of reckless criminal offenses provided for in Articles 345, 345-1, 348, 349, 351 of the Criminal Code are sentenced to imprisonment, regardless of the term, in institutions of the minimum security penal system.

      When imposing punishment, the courts should take into account that the acts provided for in parts two, three, four, and five of Article 346 of the Criminal Code relate to criminal offenses committed with two forms of guilt, and in accordance with the requirements of Article 22 of the Criminal Code are generally recognized as committed intentionally.

     In this regard, in the case of negligent infliction of moderate or serious harm to health or death to one or more persons as a result of the commission of an intentional criminal offense (driving a vehicle by a person deprived of the right to drive vehicles while intoxicated; transfer or admission of such a person to drive a vehicle) to the guilty person serving a sentence of imprisonment for A term of more than two years must be imposed in an institution of the medium-security penal system.

     Convicted of a combination of criminal offenses, if some are committed intentionally and others are negligent, the court has the right to order the serving of imprisonment in institutions of the minimum security penal system only if the intentional criminal offense is punishable by imprisonment for up to two years.

     At the same time, the court has the right, based on the totality of criminal offenses, to order the serving of imprisonment in institutions of the minimum security penal system if a punishment unrelated to imprisonment is imposed for an intentional criminal offense.

     The footnote. Paragraph 17 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication); as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/11/2020 No. 6 (effective from the date of the first official publication).

     17-1. An additional penalty of life imprisonment for driving on the basis of part four of Article 345-1 of the Criminal Code and the relevant parts of Article 346 of the Criminal Code is imposed by virtue of the requirements of part three of Article 6 of the Criminal Code only for criminal offenses committed after January 10, 2020. For criminal offenses committed before the specified time, additional punishment in the form of deprivation of the right to drive a vehicle is imposed for the period specified in the sanctions of these articles in the previous edition.

     An additional penalty in the form of deprivation of the right to drive a vehicle is imposed regardless of whether or not the defendant had such a right at the time of sentencing.

     The footnote. The regulatory resolution was supplemented by paragraph 17-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).

When considering cases of criminal offenses related to violations of traffic rules and vehicle operation, the courts must ensure the correct resolution of civil claims, while complying with the requirements of substantive and procedural laws, as well as the explanations given in the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 20, 2005 No. 1 "On the consideration of a civil claim in criminal proceedings".

      In cases of this category, owners of vehicles must be involved as civil defendants, who, in accordance with paragraph 1 of Article 931 of the Civil Code of the Republic of Kazakhstan (hereinafter CC), are required to compensate for damage caused by a source of increased danger.

      At the same time, the courts must take into account that in case of damage to life, health or property as a result of a traffic accident, the victim is entitled to insurance compensation by virtue of compulsory civil liability insurance for vehicle owners. By virtue of Article 924 of the Civil Code, the victim's claims against the defendant for recovery of the difference between insurance compensation and the actual amount of damage may be resolved.

     If the damage caused as a result of a traffic accident is not an insured event or is caused by the fault of the driver of a non-mechanical vehicle (for example, as a result of a collision with a horse-drawn vehicle or bicycle), the civil liability of the owner of which is not subject to compulsory insurance, it is reimbursed to the perpetrator according to the general rules provided for by civil legislation.

     The footnote. Paragraph 18 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

When considering claims for compensation for moral damage, courts should be guided by the provisions of Articles 951, 952 of the Civil Code and the explanations given in 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." When determining the amount of compensation for moral damage, the courts should proceed from the principles of fairness and sufficiency, so that the established amount of compensation makes it possible to conclude that the plaintiff's claims are reasonably satisfied.

     In case of gross negligence of the victim (intoxication, violation of traffic rules, etc.), the amount of compensation for damage may be reduced or its compensation may be refused.

     Insurance companies may not be required to compensate third parties for moral damage caused by an insured event. The obligation to compensate moral damage in the event of an insured event must be imposed on the owner of the vehicle or the carrier.

     The footnote. Paragraph 19 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

If there is a motion to dismiss the case in connection with reconciliation with the victim, the courts should strictly follow the requirements of Article 68 of the Criminal Code and be guided by the explanations given in the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 21, 2001 No. 4 "On judicial practice on the application of Article 68 of the Criminal Code of the Republic of Kazakhstan".

      If the actions of a person form a set of criminal offenses provided for in parts one, two of Article 345, parts one, two, three of Article 346 and Article 347 of the Criminal Code, then the question of the application of Article 68 of the Criminal Code is decided in relation to each act individually.

      At the same time, the courts should bear in mind that the provisions of Article 68 of the Criminal Code do not apply to persons who have committed criminal offenses provided for in Articles 345, 346, 348, 349, 351 of the Criminal Code, which negligently caused the death of one or more persons.

     The footnote. Paragraph 20 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

After the termination of a criminal case against a person accused of committing a criminal offense under Articles 345, 346, 348, 349, 351 of the Criminal Code, on the grounds provided for by criminal and criminal procedure laws, a person by virtue of part six of Article 62 of the Code of the Republic of Kazakhstan on Administrative Offenses may be brought to administrative responsibility no later than three months from the date of the decision to terminate the criminal case only in cases where there are signs of an administrative offense in his actions.

     The issue of recovery of material and moral damages may be resolved through civil proceedings.

     The footnote. Paragraph 21 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).

According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, and is also generally binding and effective from the date of its official publication.

     Chairman of the Supreme Court of the Republic of Kazakhstan

B. Beknazarov

     Judge of the Supreme Court of the Republic of Kazakhstan, Secretary of the plenary session

J. Baishev

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