Commentary on Article 119. Leaving a Person in Danger of the Criminal Code of the Republic of Kazakhstan

• 1. Knowingly leaving without assistance a person who is in a life- or health-threatening condition and is deprived of the ability to take measures for self-preservation due to minority, old age, illness or another helpless condition, in cases where the perpetrator had the opportunity to provide assistance to that person or was obliged to care for that person, or where the perpetrator himself placed that person in a life- or health-threatening condition, —
• shall be punishable by a fine in an amount of up to one hundred monthly calculation indices, or corrective labour in the same amount, or engagement in community service for a period of up to one hundred and twenty hours, or arrest for a period of up to forty-five days.
• 2. The same act, which through negligence resulted in the infliction of serious or moderate bodily injury on the person left without assistance, —
• shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or corrective labour in the same amount, or restriction of liberty for a period of up to two years, or deprivation of liberty for the same period.
• 3. An act provided for in Part One of this Article, which through negligence resulted in the death of the person left without assistance, —
• shall be punishable by restriction of liberty for a period of up to three years or deprivation of liberty for the same period.
• 4. An act provided for in Part One of this Article, which through negligence resulted in the death of two or more persons, —
• shall be punishable by restriction of liberty for a period of up to five years or deprivation of liberty for the same period.

The public danger of this criminal offence (Part 1 — a criminal misdemeanour; Parts 2, 3 and 4 — crimes) is expressed in knowingly leaving without assistance a person who is in a life- or health-threatening condition and is deprived of the ability to take measures for self-preservation due to minority, old age, illness or another helpless condition.

The object of the criminal offence is the life and health of a person who is deprived of the ability to take measures for self-preservation.

The victim of the criminal offence is a person who: a) is in a life- or health-threatening condition; and b) is deprived of the ability to take measures for self-preservation. The proper legal classification of the criminal offence requires establishing the presence of both of these characteristics.

A condition dangerous to life or health means a condition of a person's body or psyche, or the surrounding circumstances, which poses a threat of death or bodily injury to that person. A dangerous condition is characterised by the intensive impact on the victim's body of two possible groups of factors: environmental factors (for example, fire, flood, earthquake, etc.); and internal factors, which include, in particular, hunger, illness and injuries sustained.

The intensity of the impact of the dangerous factors must be sufficiently high to create a real threat of death or bodily injury.

A necessary condition for criminal liability is the victim's inability to take measures for self-preservation due to one of four reasons: minority, old age, illness or helplessness.

In accordance with Article 23 of the Civil Code of the Republic of Kazakhstan, minors are understood to be persons who have not reached the age of fourteen.

When determining old age, in each specific case, the physical and mental characteristics of the person must be assessed in comparison with the nature of the danger threatening that person.

One of the alternative characteristics of the victim specified in Article 119 of the Criminal Code is helplessness, which is not related to age or illness. Any person, regardless of their individual characteristics, may find themselves helpless in the face of an impending danger in a particular situation and become a victim of the criminal offence under consideration (injury, exhaustion, isolation from the outside world as a result of a flood, or being trapped under rubble following the collapse of a building's walls). In this sense, the concept of helplessness used by the legislator in Article 119 of the Criminal Code is broader in content than the concept provided for in subparagraph 3) of Part 2 of Article 99, Part 2 of Article 106 and Part 2 of Article 107 of the Criminal Code.

The objective element of Part 1 of the commented Article is characterised by two alternative features: a) knowingly leaving the victim in a condition dangerous to life or health where the danger is not connected with the perpetrator's prior conduct (pure omission); b) placing a person in danger and leaving that person in a condition dangerous to life or health (mixed omission). If the subject places another person in a condition dangerous to life or health and subsequently takes timely and effective measures to prevent adverse consequences, liability under Article 119 of the Criminal Code is excluded.

It is important to establish that the situation posing a danger to the victim's life or health actually existed at the time when the perpetrator left the victim.

If the dangerous situation arose after the subject had left the victim, liability under Article 119 of the Criminal Code is excluded.

For criminal liability for an omission to arise, the following conditions must be present:

the perpetrator was obliged to care for the victim;

the perpetrator had the opportunity to provide assistance to that person.

The obligation to provide assistance arises from family or similar relationships (parents — children, guardian — ward), official position (a kindergarten teacher, a schoolteacher at school, a tourist group instructor), or an employment or civil-law contract (a nanny caring for a child, a private security guard, a caregiver for a seriously ill person). Where the person concerned is a medical professional, the act is classified under the special provision as failure to provide medical assistance to a patient under Article 320 of the Criminal Code. At the same time, I would like to point out that the legislator did not act entirely correctly when formulating Article 320 of the Criminal Code. I will discuss what this consists of below, when distinguishing Article 119 from Article 320 of the Criminal Code.

It is the criminal law itself that imposes an obligation to provide assistance on a person who has personally placed the victim in a condition dangerous to life or health. Moreover, such placement gives rise to the corresponding obligation regardless of whether it is assessed as unlawful or lawful, culpable or non-culpable. The second condition for criminal liability under Article 119 of the Criminal Code is the person's ability to provide assistance. The question of whether or not the subject had such an opportunity may be answered on the basis of an analysis of all the specific circumstances of the case: the prevailing situation, the physical and mental characteristics of the perpetrator, their professional and other skills, experience, the availability of appropriate means, etc.

Where a person was unequivocally deprived of the ability to act accordingly, for example, as a result of force majeure, liability under Article 119 of the Criminal Code is excluded.

The objective element is characterised by the perpetrator's omission.

By its legal structure, the elements of the criminal offence are formal. The criminal offence is deemed completed from the moment the obligations to provide assistance to the victim are not fulfilled, regardless of whether harmful consequences occur. However, if the person takes measures to notify the relevant authorities in a timely manner of the need to provide assistance, the elements of the criminal offence are absent.

The subjective element is characterised by direct intent, meaning that the perpetrator is aware that they are obliged and have a real opportunity to provide appropriate assistance to a person who is knowingly in a condition dangerous to life and health, and deliberately evades providing such assistance.

The term “knowingly” leaving a person without assistance while that person is in a condition dangerous to life or health should be understood as cases in which the perpetrator was aware of the danger to the victim's life or health and understood that the victim was deprived of the ability to independently seek medical assistance. Guilt in the offence of leaving a person in danger is characterised by the subject's awareness of three circumstances: 1) the existence of a danger to another person's life or health; 2) the existence of an obligation to provide assistance to that person arising from some legal act; 3) the existence of an opportunity to provide assistance to another person, as well as the unwillingness to provide such assistance. The absence of any one of these conditions excludes criminal liability for leaving a person in danger under Article 119 of the Criminal Code.

The motives may vary: indifference, cowardice, revenge, etc.

The subject is special — a sane natural person who has reached the age of sixteen and is obliged to show care for a person who is knowingly in a condition dangerous to life and health. Such an obligation may arise from the perpetrator's profession, a contract or their prior conduct.

The aggravated and particularly aggravated elements of the criminal offence also include an act which through negligence results in the infliction of serious or moderate bodily injury on the person left without assistance (Part 2), an act provided for in Part 1 of Article 119 of the Criminal Code which through negligence results in the death of the person left without assistance (Part 3), and an act provided for in Part 1 of Article 119 of the Criminal Code which through negligence results in the death of two or more persons (Part 4).

The criminal offence provided for in Article 119 of the Criminal Code must be distinguished from the criminal offence provided for in Article 320 of the Criminal Code, “Failure to Provide Medical Assistance”.

Unlike the criminal offence provided for in Article 119 of the Criminal Code, the object of which is public relations ensuring the protection of the life and health of a person deprived of the ability to take measures for self-preservation, the direct object of the criminal offence provided for in Article 320 of the Criminal Code is public relations centred on compliance with the established rules for providing medical assistance.

The subject of the criminal offence provided for in Article 119 of the Criminal Code is a person who had the opportunity to provide assistance to the victim or was obliged to care for them, or who placed the victim in a condition dangerous to life or health. In contrast, the subject of the criminal offence provided for in Article 320 of the Criminal Code is a medical or other employee who, by virtue of their profession, is obliged to provide assistance in accordance with the law or a special rule.

Differences are also found in the objective and subjective elements of the criminal offences. In the case of leaving a person in danger, the occurrence of socially dangerous consequences is not mandatory (in the basic composition under Part 1), whereas in the case of failure to provide assistance to a patient, the infliction of bodily injury is a mandatory feature of the objective element. With regard to the subjective element, it should be noted that leaving a person in danger is an intentional offence, whereas failure to provide assistance to a patient is generally characterised by negligence as the form of guilt.

The criminal offence provided for in Article 119 of the Criminal Code must also be distinguished from the act for which liability is established under Article 347 of the Criminal Code, “Leaving the Scene of a Road Traffic Accident”. As noted above, the direct object in the case of leaving a person in danger is public relations ensuring the protection of the life and health of a person who is deprived of the ability to take measures for self-preservation, whereas the object of leaving the scene of a road traffic accident is public relations centred on compliance with the established rules in the sphere of traffic safety or the operation of motor vehicles and urban rail transport.

The difference in the objective elements of the specified criminal offences lies in the specific nature of the socially dangerous act itself, the place and the circumstances in which it is committed. In the case of leaving a person in danger, the place, situation and circumstances of the socially dangerous act are irrelevant, whereas, in order to hold a person criminally liable under Article 347 of the Criminal Code, the act may be committed only at the scene and under the circumstances of a road traffic accident.

The subject of leaving a person in danger may be a person who had the opportunity to provide assistance to the victim or was obliged to care for them, or who placed the victim in a condition dangerous to life or health (i.e. a special subject). The subject of leaving the scene of a road traffic accident is also special, but has different special characteristics — a person who was driving a vehicle and violated traffic rules or the rules governing the operation of vehicles.

Accordingly, if, in a road traffic accident, the victim suffered as a result of their own fault or the fault of other road users, and the driver nevertheless left the victim without assistance (for example, hit a pedestrian who suddenly appeared in front of their car and drove away), the driver's actions should be classified under Article 119 of the Criminal Code, since, subject to the appropriate conditions, the act does not constitute the offence of leaving the scene of a road traffic accident.

The act provided for in Article 119 of the Criminal Code must also be distinguished from the criminal offence provided for in Article 357 of the Criminal Code, “Failure of a Ship's Captain to Assist Persons in Distress”. Since the act provided for in Article 357 of the Criminal Code, like Article 347, belongs to transport-related criminal offences, the corresponding distinctions from leaving a person in danger also concern the object of the offence. In general, failure to assist persons in distress on a waterway is a special provision in relation to Article 119 of the Criminal Code. Under the general rule provided for in Part 3 of Article 13 of the Criminal Code, “Multiplicity of Criminal Offences”, in such cases there is no concurrence of crimes, and the criminal liability of the ship's captain arises only under Article 357 of the Criminal Code.

The actual provision of assistance by the ship's captain consists, first and foremost, in the captain's authority to issue orders to subordinates. Accordingly, if crew members fail to comply with the captain's orders and instructions to rescue people in danger of perishing, their omission should be classified under Article 119 of the Criminal Code, “Leaving a Person in Danger”.

In a situation where the captain of a ship that has itself suffered an accident fails to provide assistance to its passengers and crew, the captain's omission should be classified under Article 119 of the Criminal Code, “Leaving a Person in Danger”. Leaving people in a condition dangerous to their life and health must be knowing, provided that the victims were unable to take measures for self-preservation due to their helplessness. Criminal liability is determined by the fact that the captain is initially obliged, in accordance with the regulatory legal acts governing their professional activities, to care for the crew members and all persons on board the vessel, and that the captain has a real opportunity to provide them with assistance.

The act provided for in Part 1 of Article 119 of the Criminal Code is classified as a criminal misdemeanour.

The act provided for in Part 2 of Article 119 of the Criminal Code is classified as a crime of minor gravity.

The acts provided for in Parts 3 and 4 of Article 119 of the Criminal Code are classified as crimes of medium gravity.

Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, 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 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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