Commentary on Article 279. Violation of Rules or Regulatory Requirements in the Sphere of Architectural, Urban Planning and Construction Activities of the Criminal Code of the Republic of Kazakhstan

1. Violation of rules or regulatory requirements in the sphere of architectural, urban planning and construction activities, which negligently results in the death of a person or other grave consequences, —

shall be punishable by deprivation of liberty for a term of up to six years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or without such deprivation.

2. An act provided for in part one of this Article, which negligently results in the death of two or more persons, —

shall be punishable by deprivation of liberty for a term of three to eight years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or without such deprivation.

The safety of the principal final products of architectural, urban planning and construction activities — buildings and other construction structures — is ensured through a system of technical regulation and strict compliance with the requirements of the legislation currently in force in the construction sector.

The public danger of this crime lies in the fact that violations of rules or regulatory requirements in the sphere of architectural, urban planning and construction activities are associated with a high risk of human fatalities, harm to health and the environment, significant material damage to both individuals and legal entities, as well as the State, and the destruction of residential buildings, other buildings, structures and construction facilities.

In accordance with subparagraph 53) of Article 1 of the Law of the Republic of Kazakhstan dated July 16, 2001, “On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan”, architectural activity is an activity involving the creation of architectural objects, including the creative process of creating the external and internal appearance of an object, its spatial, compositional, volumetric-planning and functional organization, as recorded in the architectural section of design documentation for construction (reconstruction, restoration), and the exercise of architectural supervision during project implementation.

According to subparagraph 25) of Article 1 of the aforementioned Law, urban planning activity is an activity involving urban planning, organization and development of territories and settlements, their territorial transport planning and traffic management, determination of the types of urban planning use of territories, and comprehensive design of urban and rural settlements, including the creative process of shaping urban planning space, creating an urban planning project, and coordinating all related sections of urban planning documentation.

Construction activity is an activity involving the creation of fixed assets for production and non-production purposes through the erection of new and/or alteration (expansion, modernization, technical re-equipment, reconstruction, restoration, capital repair) of existing facilities (buildings, structures and their complexes, communications), installation (dismantling) of technological and engineering equipment associated with them, manufacture (production) of construction materials, products and structures, as well as carrying out work on the conservation of construction of unfinished facilities and the post-utilization of facilities that have exhausted their service life (subparagraph 31) of Article 1 of the Law).

Thus, architectural, urban planning and construction activities consist of:

conducting engineering surveys for construction and using the cartographic and geodetic fund for architectural, urban planning and construction purposes;

preparing justifications, forecasts and documents of the State Planning System of the Republic of Kazakhstan in the field of architecture, urban planning and construction;

developing, coordinating, examining and approving, in accordance with the established procedure, urban planning, architectural and construction, and other design (design and estimate) documentation;

constructing new buildings and structures, as well as expanding, technically re-equipping, modernizing, reconstructing, restoring and carrying out capital repairs of existing structures, buildings, facilities, engineering and transport communications;

carrying out engineering preparation of territories and constructing landscaping and greening facilities;

conserving the construction of unfinished facilities;

carrying out a set of works related to the post-utilization of facilities;

conducting research and experimental development work and using its results in the field of architecture, urban planning and construction;

exercising urban planning and architectural and construction control and supervision;

engaging and providing engineering services;

establishing requirements that ensure safety in the sphere of architectural, urban planning and construction activities (subparagraph 2) of Article 3 of the Law of the Republic of Kazakhstan “On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan”).

The disposition of the Article under consideration is blanket in nature; therefore, in order to determine whether a violation of rules or mandatory regulatory requirements has occurred, it is necessary to refer to the relevant regulatory legal and regulatory technical acts.

According to the Law of the Republic of Kazakhstan dated November 9, 2004, “On Technical Regulation”, a technical regulation is a regulatory legal act establishing mandatory requirements for products and/or the processes of their life cycle, developed and applied in accordance with the legislation of the Republic of Kazakhstan in the field of technical regulation (subparagraph 45) of Article 1 of the Law).

In accordance with the Law of the Republic of Kazakhstan dated July 16, 2001, “On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan”, urban planning regulations are regimes, permits and restrictions (including encumbrances, prohibitions and easements) governing the use of territories (land plots) and other real estate properties, as well as any permissible changes to their condition, established in accordance with the procedure prescribed by law (subparagraph 26) of Article 1 of the Law).

State standards (state regulatory documents) constitute a system of regulatory legal acts, urban planning and technical regulations, regulatory technical documents, and other mandatory requirements, conditions and restrictions ensuring favorable, safe and other necessary conditions for human habitation and vital activities (subparagraph 39) of Article 1 of the Law).

Interstate standards (interstate regulatory documents) in the field of architecture, urban planning and construction constitute a system of regulatory technical documents, rules and other mandatory requirements, conditions and restrictions, including interstate urban planning standards, interstate construction norms and rules, and interstate construction standards, which are in force pursuant to international treaties ratified by the Republic of Kazakhstan in the territories of the Republic of Kazakhstan and another State (other States).

Architectural, urban planning and construction activities are carried out on the basis of the principle of ensuring the safety of construction facilities for the life and health of citizens, the preservation of the property of individuals and legal entities, and the protection of the environment.

The object of the crime under consideration is public safety in the course of architectural, urban planning and construction activities.

The additional object is human life or health, the environment, and property relations.

The subject matter of the crime is buildings and structures, motor roads, tunnels, power plants, residential buildings or other construction facilities.

The objective element of this crime is characterized by an act or omission expressed in the violation of rules or regulatory requirements in the sphere of architectural, urban planning and construction activities, which negligently results in the death of a person or other grave consequences.

Such violations include:

1.) carrying out activities subject to licensing in the sphere of architecture, urban planning and construction without a license;

2\) deviation from the approved functional designation of territories, urban planning regulations, and the established regime in areas subject to special urban planning regulation;

3\. deviation from the procedure established by law for the selection and allocation (authorization for use), as well as the seizure of land plots for urban planning purposes related to the provision of State needs;

deviation from the established procedure for the development, coordination, examination and approval of urban planning, architectural and construction, and other design (design and estimate) documentation, as well as deviation from documentation approved in accordance with the procedure established by law or the introduction of amendments thereto without the authorization of the approving authority;

4-1) deviation from the established procedure for the development, examination and approval of design (design and estimate) documentation, as well as deviation from documentation approved in accordance with the procedure established by the legislation of the Republic of Kazakhstan or the introduction of amendments thereto without the authorization of the approving authority;

carrying out construction and installation works without notifying the bodies exercising State architectural and construction control and supervision, in accordance with the procedure established by the Law of the Republic of Kazakhstan “On Permits and Notifications”;

carrying out construction without the involvement of architectural and construction control and supervision, technical supervision and author's supervision in cases where their mandatory involvement is stipulated by this Law;

unauthorized construction, as well as alteration of the architectural appearance, redevelopment (re-equipment, change of functional purpose) of buildings, individual premises and/or parts of buildings;

deviation from established red lines and building lines, as well as yellow lines in areas of increased seismic hazard during the planning and development of settlements;

failure to comply with State standards in the field of architecture, urban planning and construction, as well as occupational safety, fire and explosion safety, sanitary and environmental safety, and requirements ensuring accessibility for persons with disabilities and persons with reduced mobility to social, transport and recreational infrastructure facilities during the design, construction and subsequent operation of a facility;

violation of the procedure established by law for the acceptance and commissioning of completed construction facilities, as well as their maintenance during operation;

unjustified refusal by officials to issue, or the provision of inaccurate information concerning the preparation and adoption of decisions related to the planning and development (reconstruction) of settlements (parts of settlements), projected facilities, as well as the condition of the living environment and vital activity environment and the changes anticipated therein that directly affect public and private interests;

other actions as a result of which the condition of the living environment and vital activity environment deteriorates, the rights and legitimate interests of citizens, including persons with disabilities, and society as a whole are infringed, and damage is caused to State interests, which entail liability provided for by the laws of the Republic of Kazakhstan (Article 17 of the Law of the Republic of Kazakhstan “On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan”).

At the same time, there must be a causal relationship between the violation of the aforementioned rules or regulatory requirements and the consequences that have occurred.

Any construction of buildings, structures, their complexes and individual parts, social, industrial, transport and engineering infrastructure facilities, as well as the improvement of territories, is carried out on the basis of design documentation for construction.

A construction project is developed on the basis of approved urban planning and architectural projects, engineering survey materials and the permit documentation obtained.

In accordance with the Law of the Republic of Kazakhstan “On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan”, a project is an intention of individuals and legal entities or the State to ensure the necessary conditions for human habitation and vital activities, presented in the form of architectural, urban planning and construction documentation (drawings, graphic and textual materials, engineering and estimate calculations), including a feasibility study for construction and/or design and estimate documentation, which disclose the essence of the intention and the possibility of its practical implementation (subparagraph 11) of Article 1 of the Law).

Design documentation includes:

projects for landscaping a territory, its external decoration, and the placement and installation (erection) of works of monumental or decorative art;

urban planning projects — projects containing an intention for comprehensive urban planning, organization, development and construction of territories and settlements or parts thereof (the General Scheme for the Organization of the Territory of the Republic of Kazakhstan, interregional territorial development schemes, comprehensive urban planning schemes for territories, master plans of settlements, detailed planning projects, industrial zone planning projects, development projects, master plans of facilities and complexes, landscaping and greening projects, and other planning projects);

— construction project (construction design) — design (design and estimate) documentation containing spatial planning, structural, technological, engineering, environmental protection, economic and other solutions, as well as estimate calculations required for the organization and execution of construction, engineering preparation of territories and landscaping. Construction projects also include projects for the conservation of construction of unfinished facilities and the post-utilization of facilities that have exhausted their service life;

— architectural project containing an architectural concept — an independent project for the construction of a structure (monument), the design of which requires the participation of an architect, or a part of design (design and estimate) documentation that includes architectural and artistic, compositional and spatial planning solutions for a facility, takes into account social, economic, functional, technological, engineering and technical, fire prevention, explosion prevention, sanitary and hygienic, environmental and other requirements, and is completed to the extent necessary for the development of a construction project or other documentation for the construction of a facility (subparagraph 13) of Article 1 of the Law).

The project developer is obliged to prepare design documentation in accordance with the requirements of legislative acts and technical regulatory legal acts.

For information on the State system of regulatory documents in the field of architecture, urban planning and construction, see Article 28 of the aforementioned Law.

By its legal structure, the corpus delicti is material. The crime is deemed completed from the moment the specified consequences occur: the death of a person or other grave consequences.

For the purposes of the Article under consideration, grave consequences may include: causing grievous bodily harm; causing grievous bodily harm to two or more persons; deterioration in the health of the population and the condition of the environment; the occurrence of a man-made or environmental disaster, or an environmental emergency; causing large or especially large-scale damage; catastrophes or accidents.

The grave consequence in the form of negligently causing the death of two or more persons is provided for as an aggravating qualifying element (Part 2 of Article 279 of the Criminal Code).

The subjective element of the crime is characterized by negligence in the form of recklessness and carelessness: the perpetrator foresees the possibility of socially dangerous consequences arising from their actions (inaction), but, without sufficient grounds, frivolously relies on preventing such consequences, or does not foresee the possibility of socially dangerous consequences arising from their actions (inaction), although, with due attention and foresight, they should and could have foreseen such consequences.

The subject of the crime is special, i.e. participants in architectural, urban planning and construction activities, for example, customers (investors, developers), responsible contractors performing surveying, design and construction and installation works, manufacturers and suppliers of construction materials, products, structures and equipment, as well as operational supervision services overseeing the progress of construction and installation of equipment, and other participants. Criminal liability arises upon reaching the age of 16.

In the event of competition between criminal law provisions, participants in the commissioning and acceptance of construction facilities, as well as experts, are subject to criminal liability under Articles 278 and 280 of the Criminal Code, respectively.

The crime under consideration should be distinguished from violation of safety rules in mining or construction operations (Article 277 of the Criminal Code). Violation of construction safety rules consists in breaching construction technology, poor-quality preparation of construction materials (for example, in the production of concrete or masonry mortar), carrying out construction work without the relevant designs, failure to observe safety precautions at construction sites (inadequate fencing of construction sites, failure to provide workplaces with protective equipment), etc. This crime is characterized by the violation of mandatory requirements of norms and standards during construction work that ensure the quality, strength, reliability, durability and safe operation of facilities, buildings, structures, their elements, components, etc.

Furthermore, in terms of the mechanism by which harm is caused, the crime under analysis should be distinguished from violation of environmental requirements for economic or other activities (Article 324 of the Criminal Code of the Republic of Kazakhstan).

The acts provided for in Parts 1 and 2 of Article 279 of the Criminal Code are classified as crimes of medium gravity.

Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honored Worker 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, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

Constitution Law Code Regulatory Act Decree Order Decision Resolution Advocate Almaty Lawyer Legal services Legal Consultation Civil Criminal Administrative cases and disputes Defense Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Rules Note Regulations Program Charter Charter Article Commentary Resolution Regulations Protocol Draft Program Rules Addresses