Traffic safety and operation in transport, human life and health
Article 345 of the Criminal Code protects two objects: traffic safety and operation in transport, as well as human life and health. The death toll includes not only those who died at the scene, but also those who died later from injuries sustained as a result of a traffic accident (hereinafter referred to as an accident). Even if the death of the victim(s) occurred some time after the accident from injuries sustained as a result of the accident, these consequences should fall under the criteria of qualified personnel (parts 3 and 4 of Article 345 of the Criminal Code). At the same time, the consequences that have occurred must be directly causally related to the violations of traffic regulations or ETS). Thus, according to paragraph 6 of the NPS No. 3 dated June 29, 2011 "On the practice of applying criminal legislation in cases of criminal offenses related to traffic violations and vehicle operation", violations of traffic regulations or vehicle operation that are not causally related to the socially dangerous consequences that have occurred (for example, the driver's absence at the time of the driver's license accident), cannot form the objective side of these criminal offenses and are subject to exclusion from the charge.
For qualification, it is important that the consequences that have occurred are directly causally related to the violations of traffic regulations or ETS and the harmful consequences that have occurred. 2. By the Law of the Republic of Kazakhstan dated December 27, 2019 No. 292-VI "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on Improving criminal and criminal procedure legislation and strengthening the protection of Individual Rights" (hereinafter referred to as the Law of the Republic of Kazakhstan) The Criminal Code has been supplemented by article 345-1, which provides for liability for violations of traffic regulations or ETS by persons operating vehicles under the influence of alcohol, drugs and (or) substance abuse. These changes have been in effect since January 11, 2020 and are aimed at tightening responsibility for the commission of these criminal offenses. Regarding the introduced norm – Articles 345-1 of the Criminal Code: the object of this criminal offense is public relations in the field of traffic safety or ETS. Criminal liability for this offense, as well as for a violation under Article 345 of the Criminal Code, occurs only if a violation of the rules of the road or the operation of vehicles has led to consequences in the form of negligent infliction of moderate or serious harm to human health, or the death of one or more persons. The criminal nature of a person's behavior is expressed in driving a vehicle in a state of alcoholic, narcotic and (or) substance abuse intoxication. The disposition of part 1 of Article 345-1 of the Criminal Code already covers negligent infliction of moderate harm to human health, in general, the subjective side of the offense is characterized by a reckless form of guilt (before amendments to the Criminal Code). For the subject of the offense provided for in Article 345-1 of the Criminal Code, unlike the previous article, mandatory confirmation of the fact that the perpetrator is in a state of alcoholic or other intoxication is required.
Traffic safety and operation in transport, human life and health
By the same Law, part 1 of Article 346 of the Criminal Code was transferred from criminal offenses to the category of crimes of moderate severity; qualified crimes of minor and moderate severity were transferred to serious ones. This article has been supplemented by Part 2, which provides for liability on the basis of "negligently damaging vehicles, goods, road and other structures or other property, as well as causing minor harm to human health." The public danger of an act under the above article is due to the fact that drivers who are intoxicated have a sharply reduced reaction, impaired coordination of movements, and the ability to correctly assess the road situation and choose the right decision in the current situation, which leads to accidents. 4. In each criminal case of the specified category, the court is obliged to take all measures provided for by law for a comprehensive, complete and objective resolution of the case. To give a correct assessment of the collected evidence, including factual data. The protocols of inspection of the accident site and vehicle drawn up by traffic police officers often contain incompleteness: the traces of damage, the direction, shape and location of deformations on the vehicle are not described in detail, which affects the correctness of establishing the initial data and the reliability of forensic examinations of accidents. 5 In accordance with the provisions of paragraph 9) of Part 2 of Article 322 of the CPC and the clarifications of paragraph 3 of the NPVS "On the consideration of criminal cases by courts in an abbreviated manner" in cases where the conditions provided for in part 1 of Article 382 of the CPC exist, in order to promptly review and simplify judicial procedures, appoint and conduct the main trial in an abbreviated manner. When imposing punishment in cases dealt with by writ, the requirements of the law must be strictly observed.
In particular, according to part 3 of Article 55 of the Criminal Code, in cases in which a conviction has been ordered, a fine is imposed in the amount of 10 to 20 MCI for committing a criminal offense, and from 50 to 200 MCI for committing a minor offense. 6. Judges should carefully check compliance with the requirements of paragraph 22) of Articles 71, 614-615 of the CPC when concluding procedural agreements. In order to ensure the exercise of victims' rights in conciliation proceedings, to require the prosecution and attach to the case an opinion written in the victim's own hand on the issue of concluding a procedural agreement, qualification, type, measure of punishment, and civil action. In the case when a procedural agreement is concluded during the main trial, explain to the victims about the intention of the parties to conclude a procedural agreement and the right to object to it. Take procedural measures to respond to violations of the criminal procedure law when drafting and concluding procedural agreements by issuing private rulings to the prosecutor. 7. Take measures to prevent errors by the courts when imposing basic and additional punishments, releasing a person from criminal liability and punishment, resolving issues related to a civil claim, and drafting and executing judicial acts. It should be borne in mind that the termination of proceedings is carried out: - in violation of the procedural period established by part 1 of Article 526 of the CPC and other principles of legality - on the basis of Article 10 of the CPC, with the invalidation of illegal acts (the Tselinograd District Court of the Akmola region terminated the criminal case against O. under part 1 of Article 345 of the Criminal Code in connection with gross violations norms of the CPC: the pre-trial investigation in protocol form was initiated only on January 17, 2020, O. himself was questioned as a suspect only on April 25, 2020.
The protocol on criminal misconduct against O. under part 1 of Article 345 of the Criminal Code was drawn up by the state traffic inspector only on May 30, 2020, that is, 35 days after his interrogation as a suspect in the case, without suspending proceedings in this case in accordance with the procedure provided for by law or extending the procedural time limits for it, in violation of the requirements of part 1 of Article 526 of the CPC. In accordance with part 1 of Article 50 of the CPC, procedural actions committed by participants in criminal proceedings after the expiration of the term are considered invalid. The court declared all the evidence obtained in the case invalid); - if the public prosecutor refuses to charge, on this independent basis (the public prosecutor's refusal to charge) with reference to Article 337 of the CPC; - in the absence of a criminal offense based on paragraph 2) of part 1 of Article 35 of the CPC (in the preliminary hearing, a court decision is issued, in the main trial - an acquittal). 9. In cases, forensic chemical, toxicological and medical examinations are not always conducted to establish the presence of alcohol in the blood and its concentration. The pre-trial investigation bodies and the courts are limited to medical examination reports, which are based on the results of a breathalyzer test, which establishes the presence of alcohol in the air exhaled by a person. A chemical and toxicological expert examination is conducted based on the results of blood sampling and makes it possible to establish specifically the presence of alcohol in the blood of the subject, which serves the purposes of an objective and comprehensive investigation of the circumstances, including in cases in which the defendant disputes the fact that he consumed alcohol. In this category of cases, forensic examinations are not always appointed and conducted against persons who have committed crimes under the influence of alcohol. The lack of research into whether a person who has committed a crime in a state of intoxication needs compulsory treatment does not allow for the full realization of the goals of fair punishment, as well as the prevention of the commission of new criminal offenses by the perpetrator. 10. Regarding increased liability for persons deprived of the right to drive vehicles and who are intoxicated, but who nevertheless drove vehicles under the influence of alcohol again, in addition to the measures specified in Article 346 of the Criminal Code of the Republic of Kazakhstan, article 91 of the Criminal Code may be applied and the guilty person may be found in need of treatment for alcoholism, drug addiction or substance abuse.
Traffic safety and operation in transport, human life and health
In this regard, the court, along with punishment, may impose compulsory medical measures in the form of outpatient compulsory supervision and psychiatric treatment. This measure is necessary due to the repeated commission of a crime under the influence of alcohol, drugs and (or) substance abuse, which raises the question of the further possibility of a recurrence of such a crime. 11. Part 2 of Article 223 of the CPC stipulates that the person conducting the pre-trial investigation issues a decision on conducting an examination, which is mandatory for the suspect, the accused, as well as for the person whom the applicant explicitly identifies as the person who committed the criminal offense. That is, court approval is not required. If the suspect does not agree to undergo an examination, it is necessary to conduct a compulsory examination with court approval, since the examination is associated with a restriction of the constitutional right to personal inviolability. 12. The entry into force of the sentence and its enforcement are regulated by part 3 of Article 470 of the CPC. The legislator sets specific deadlines for applying for the execution of the sentence - within 3 days from the date of entry into force of the sentence or the return of the case from a higher court. The legislator did not provide for any exceptions or reservations regarding the enforcement of the fine. The Law of the Republic of Kazakhstan dated July 12, 2018 No. 180-VI supplemented Article 41 of the Criminal Code with a new legal concept "the deadline for payment of a fine established by a court verdict". Bailiffs believe that enforcement actions cannot be carried out within the time limit for payment of the fine established by the court verdict, and therefore they refuse to accept writ of execution for the collection of a fine, which entails red tape and excessive forwarding of writ of execution. The legislator distinguishes the legal concepts of "the deadline for payment of a fine established by a court verdict" from "postponement of execution of a sentence" (Articles 41 of the Criminal Code, Articles 475 of the CPC, paragraph 2) of Article 476 of the CPC, articles 50 and 51 of the Criminal Code). Postponement of the execution of a judicial act means a procedural court decision to postpone to a later date the date on which the judicial act was applied for enforcement or the date on which the bailiff began performing enforcement actions in the initiated enforcement proceedings. A deferral from payment of a fine is granted to a convicted person only on the basis of his petition in the order of execution of the sentence (part 2 of Article 50 of the Criminal Code, part 3 of Article 475, part 5 of Article 41 of the Criminal Code), whereas the time limit for payment of a fine is set by a court verdict when considering the case on the merits.
Thus, the concepts of "the time limit for payment of a fine established by a court verdict" and "postponement of execution of a sentence" are not identical and have different legal meanings (according to part 5 of Article 41 of the Criminal Code, the time of postponement is not included in the calculation of the time limit for payment of a fine established by a court verdict). 13. Cases of unjustified release of persons from criminal liability on the basis of article 68 of the Criminal Code should be excluded. The courts should take into account that part 1 of Article 68 of the Criminal Code provides for exemption from criminal liability in connection with reconciliation of a person who has committed a criminal offense or a crime of minor or moderate gravity, not related to causing death, is subject to exemption from criminal liability if he reconciled with the victim, the applicant, including through mediation, and made amends the harm caused. When imposing criminal punishment in cases of this category, courts should follow the general rules for sentencing specified in Article 52 of the Criminal Code: the degree of intoxication of the defendant when committing a criminal offense, the nature and extent of the harm caused or possible harm, as well as the impact on the sentencing of persons dependent on the defendant (young children, disabled children, the sole breadwinner of parents-disabled people, seriously ill, elderly, etc.), the presence of mitigating and aggravating circumstances of responsibility and punishment. 15. According to this category of criminal offenses, vehicles cannot be classified as instruments or means of their commission and, accordingly, confiscated under paragraph 1) of part 3 of Article 118 of the CPC, because the use of vehicles is an integral sign of the objective side of the criminal offense.
The driver uses the vehicle in order to extract its useful properties (as a means of transportation), and not to intentionally achieve a criminal result in the form of harm to another (other) person or damage to property. Such consequences occur due to the careless fault of the person driving the vehicle. It should be borne in mind that vehicles act as subjects of criminal offenses, through which, indirectly (since the main goal of drivers is to extract their useful properties for the purpose of movement), an encroachment is carried out on the object of the crime: on legally protected public relations for the protection of material and ideal goods in the field of road safety and vehicle operation. Consequently, the vehicle cannot be recognized as a means or instrument of a crime. 16. In order to ensure judicial control, courts, based on the results of consideration of cases in this category, need to issue private rulings on violations by criminal prosecution authorities of the CPC norms concerning the procedure for collecting and securing evidence.
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