Commentary on Article 281. Violation of Safety Rules at Explosive Facilities of the Criminal Code of the Republic of Kazakhstan
1. Violation of safety rules at explosive facilities or in explosive workshops, if this negligently results in the infliction of grievous or moderate bodily harm to a person, —
shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or imprisonment for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without such deprivation.
2. The same act, if it negligently results in the death of a person or other grave consequences, —
shall be punishable by imprisonment for a period of up to six years, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without such deprivation. An act provided for in Part One of this Article, if it negligently results in the death of two or more persons, —
shall be punishable by imprisonment for a period of three to eight years, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without such deprivation.
The public danger of the crime lies in the fact that violations of safety rules at the specified facilities may result in numerous human casualties and substantial material damage.
Facilities (enterprises, workshops) are considered explosive (hazardous industrial facilities) if their technological processes involve the use, in solid, liquid or gaseous form, of substances capable of spontaneous explosion upon reaching a certain concentration level under the influence of external factors (impact, sparks, elevated temperature, etc.). These include, in particular, facilities where inflammable, oxidizing, combustible and explosive substances are produced, used, processed, stored or destroyed.
The object of this crime is public safety in the field of conducting explosive operations.
The additional objects are human life and health, property, and environmental safety.
The objective side of the crime is characterized both by an act that directly contradicts the requirements established in regulatory legal acts and by an omission expressed in the failure to comply with these requirements. It consists of violating safety rules at explosive facilities or in explosive workshops, if this could result in the death of a person or other grave consequences.
An explosive facility is a plot of land (premises, storage facility) where explosive substances, such as gunpowder, TNT, nitroglycerin, as well as products containing such substances, in particular, ammunition, pyrotechnic products, explosive devices, etc., are located.
An explosive workshop is a plot of land equipped with production machinery where operations involving the production or use of explosive substances or products containing them are carried out.
Safety rules for conducting explosive operations are understood as regulatory acts governing matters relating to the safe placement, design, production, combination, analysis, operation, storage and transportation of explosive mixtures and compounds at explosive facilities.
The disposition of the Article is blanket in nature; therefore, in order to bring a person to criminal liability, it is necessary to establish which specific provisions of the safety rules governing work in explosive workshops the person violated.
A violation of the rules should be understood as a violation of production and technical discipline and a violation of special safety rules at the relevant enterprises and in workshops.
A violation of production and technical discipline should be understood as a deviation from the established procedure for conducting production processes, for example, exceeding the maximum permissible concentration levels of explosive substances, failure to comply with production technology, failure to comply with the requirements of design documentation, and failure to provide workplaces with air purification equipment (ventilation). A deviation from the established requirements for observing safety precautions when working with explosive substances and explosive objects may also be considered a violation of the rules, for example, smoking or using objects capable of causing sparks, which leads to ignition.
The main regulatory document is the Industrial Safety Rules for Hazardous Industrial Facilities Conducting Blasting Operations, approved by Order No. 343 of the Minister for Investment and Development of the Republic of Kazakhstan dated December 30, 2014.
Violation of safety rules at facilities not recognized as explosive does not constitute the elements of the crime under consideration, even if an explosion occurs as a result of such violations and the consequences specified in the Article being commented on ensue. For example, if there has been a violation of the rules for handling explosive substances (gasoline), pyrotechnic products or gas cylinders in domestic conditions, liability may arise under Articles 156, “Violation of Labor Protection Rules”; 204, “Negligent Destruction or Damage to Another Person's Property”; 277, “Violation of Safety Rules During Mining or Construction Operations”; 292, “Violation of Fire Safety Requirements”, of the Criminal Code, or under other Articles.
The safety of conducting operations at explosive facilities and in explosive workshops is also regulated by the Labor Code of the Republic of Kazakhstan. In accordance with Article 15 of the Labor Code, the Government of the Republic of Kazakhstan develops the main areas of state policy in the field of labor, labor safety and labor protection and ensures their implementation (paragraph 1); establishes the procedure for the adoption of regulatory legal acts in the field of labor safety and labor protection by the relevant authorized bodies (paragraph 6).
The development and approval of occupational safety and labor protection instructions within an organization shall be carried out by the employer in accordance with the procedure established by the authorized body.
The concept of explosive substances is examined in the commentary to Article 255 of the Criminal Code.
By its structure, the corpus delicti is material. A violation of safety rules at explosive facilities is considered completed from the moment grievous or moderate bodily harm is inflicted on a person. An essential element is the causal link between the relevant violations of the rules and the occurrence of the consequences.
The characteristics of socially dangerous consequences (the infliction of grievous or moderate bodily harm to a person, the death of a person or other grave consequences, and the death of two or more persons) are examined in the commentary to Article 277 of the Criminal Code.
The subjective side of the crime is characterized by negligence. The perpetrator is aware that they are violating safety rules at explosive facilities or in explosive workshops and foresees the possibility of socially dangerous consequences occurring; however, without sufficient grounds, they recklessly count on preventing such consequences, or they do not foresee the possibility of socially dangerous consequences occurring, although, with due attentiveness and foresight, they should and could have foreseen such consequences.
The subject of the crime is a sane individual who has reached the age of 16 and whose occupational activities are connected with working at explosive enterprises.
The act provided for in Part 1 of Article 281 of the Criminal Code belongs to the category of minor crimes.
The acts provided for in Parts 2 and 3 of Article 281 of the Criminal Code belong to the category of crimes of medium gravity.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honored 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 Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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