Commentary on Article 104. Causing Death by Negligence of the Criminal Code of the Republic of Kazakhstan
1. Causing death by negligence —
shall be punishable by restriction of liberty for a term of up to three years or deprivation of liberty for the same term.
2. Causing death by negligence of two or more persons —
shall be punishable by restriction of liberty for a term of up to five years or deprivation of liberty for the same term.
The public danger of causing death by negligence is expressed in the gross indiscipline, violation of ordinary rules of everyday life, inattention and lack of prudence of the guilty person.
The Criminal Code does not consider causing death by negligence to be murder. The use of a broader concept in Article 104 of the Criminal Code makes it possible to apply this provision freely in cases of negligent deprivation of the victim's life in the course of the guilty person's professional activities involving violations of certain safety rules (if there is no special provision in the Code).
The object of this crime is human life.
The objective side of the crime consists of actions or omissions that violate certain precautionary rules and, as a result, cause the death of another person. At the same time, the consequence of the act in the form of causing the victim's death must be causally connected with the act of the guilty person.
If, as a result of falling after being pushed and striking some object (a stone, curb, etc.), the victim dies, the guilty person shall be held liable for causing death by negligence, provided that the guilty person had no intent to cause grievous bodily harm or deprive the victim of life.
For the qualification of the act under Article 104 of the Criminal Code and for distinguishing negligent causing of death from other crimes, it is important to establish that the victim's death occurred precisely as a result of negligent actions that were objectively not aimed at depriving the victim of life. Judicial practice identifies signs of causing death by negligence in the delivery of punches to the head during a fight, gross violations of the rules for handling weapons, etc.
By its structure, the corpus delicti is material. The crime is deemed completed from the moment of the victim's death.
The subjective side of the crime presupposes guilt in the form of negligence: recklessness and carelessness. Causing death through recklessness means that a person foresaw the possibility of socially dangerous consequences (death) arising as a result of their actions (omissions), but, without sufficient grounds, frivolously relied on preventing those consequences.
Paragraph 27 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Qualification of Certain Criminal Offences Against Human Life and Health” states that the unlawful intentional causing of death to another person must be distinguished from causing death by negligence, which cannot be qualified under Article 99 of the Criminal Code, since it occurs as a result of criminal recklessness (when a person, while committing an act, foresees the possibility of the victim's death but frivolously, without sufficient grounds, relies on preventing it) or criminal carelessness (when the guilty person does not foresee the possibility of the victim's death resulting from their actions, although, under the circumstances of the case, they could and should have foreseen it).
At the same time, it should be borne in mind that causing death as a result of criminal recklessness and the unlawful intentional causing of death to another person committed with indirect intent differ in their subjective elements. In the case of criminal recklessness, the guilty person merely foresees the possibility of death and frivolously relies on preventing it, whereas in the case of indirect intent, the person foresees not only the possibility but also the probability of death, although they do not desire it, they consciously allow it to occur or remain indifferent to such a consequence of their actions, while taking no measures to prevent the victim's death.
Causing death by negligence is subject to qualification under Article 104 of the Criminal Code. If causing death by negligence is specified in the relevant article as an aggravating element of a criminal offence, the act shall be qualified under the relevant article providing for liability for the criminal offence committed, with this aggravating element being imputed to the guilty person. In this case, additional qualification under Article 104 of the Criminal Code is not required. For example, causing death by negligence in the course of committing crimes provided for in Part Three of Article 106, Articles 116 and 119, subparagraph 2) of Part 3-2 of Article 120, Article 121, Part Four of Article 135, Parts Three of Articles 156, 255, 269, 270, 271, 276 and 277, Parts Two of Article 278, Parts One of Articles 279 and 280, Parts Two of Articles 281 and 282, Part Three of Article 283, Parts Two of Articles 285, 292 and 304, Parts Three of Articles 306 and 317, Part Five of Article 319, Part Two of Article 320, Part 3 of Article 322 of the Criminal Code, etc.
Causing death by negligence in the form of criminal carelessness must be distinguished from accidental causing of death, where a person was unaware and, under the circumstances of the case, could not have been aware of the socially dangerous nature of their actions (omissions), or did not foresee the possibility of socially dangerous consequences and, under the circumstances of the case, was not obliged or was unable to foresee them. Cases shall also be recognized as causing death without guilt where a person, having foreseen the possibility of consequences in the form of the victim's death when committing an act, relied on preventing such consequences on sufficient grounds, or was unable to prevent them due to the incompatibility of their psychophysiological qualities with the requirements of extreme conditions or neuropsychological overload (Article 23 of the Criminal Code).
For the application of Article 104 of the Criminal Code, it is necessary to establish the existence of negligent guilt in relation to the criminal result — the death of another person.
Part 2 of Article 104 of the Criminal Code provides for liability for causing death by negligence to two or more persons. For the qualification of the guilty person's act under Part 2, the death of at least two persons is required (for example, the death of several people in a fire deliberately started out of mischief, the death of a group of tourists through the fault of its leader, etc.).
Causing the death of one person and grievous bodily harm to another person (in both cases through negligence) must, where there are grounds for doing so, be qualified cumulatively under Part 1 of Article 104 and Part 3 of Article 114 of the Criminal Code.
The subject is a physically competent person who has reached the age of 16.
The acts provided for in Parts 1 and 2 of Article 104 of the Criminal Code are classified as minor offences.
Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, Member of the Working Group on the Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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