Commentary on Article 304 of the Criminal Code of the Republic of Kazakhstan. Violation of Sanitary Rules or Hygienic Standards

1. Violation of sanitary rules or hygienic standards resulting through negligence in mass illness, infection, exposure to radiation or poisoning of people —

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 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 resulting through negligence in the death of a person —

shall be punishable by restriction of liberty for a period of up to five years or imprisonment for the same period.

3. An act provided for in part one of this Article, resulting through negligence in the death of two or more persons —

shall be punishable by imprisonment for a period of five to ten 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 under consideration lies in the fact that it endangers the sanitary and epidemiological well-being of the population.

According to subparagraph 283) of paragraph 1 of Article 1 of the Code of the Republic of Kazakhstan “On Public Health and the Healthcare System”, sanitary and epidemiological well-being of the population means the state of public health and the living environment in which there is no harmful impact on humans from environmental factors and favourable conditions for their vital activity are ensured.

According to subparagraph 36) of paragraph 2 of the Sanitary Rules “Sanitary and Epidemiological Requirements for Laboratories Using Potentially Hazardous Chemical and Biological Substances”, approved by Order No. 684 of the Minister of Healthcare of the Republic of Kazakhstan dated 8 September 2017, epidemiologically significant facilities are facilities whose products and/or activities, in the event of violation of the requirements of the legislation of the Republic of Kazakhstan in the field of sanitary and epidemiological well-being of the population, may lead to food poisoning and outbreaks of infectious diseases among the population.

The object of the act under analysis is public health.

The objective side of the crime consists of both actions and omissions expressed in the violation of sanitary rules or hygienic standards, which has resulted in mass illness, infection, exposure to radiation or poisoning of people.

Sanitary rules and hygienic standards establish sanitary and epidemiological requirements for various types of human activity (maintenance and operation of industrial, public, residential and other premises, buildings, structures, equipment and vehicles; food products and foodstuffs, the conditions for their production, packaging, transportation, storage, sale, disposal and destruction; ensuring radiation, chemical, microbiological, toxicological and parasitological safety, etc.).

Sanitary rules are regulatory legal acts in the field of sanitary and epidemiological well-being of the population that establish sanitary and epidemiological requirements (including criteria for the safety and/or harmlessness to humans of environmental factors, entrepreneurial and other activities, products, works and services), non-compliance with which creates a threat to human life or health, as well as a threat of the occurrence and spread of diseases.

A hygienic standard is the maximum or minimum permissible quantitative and/or qualitative value of an indicator established through research, characterising a particular environmental factor from the standpoint of its safety and/or harmlessness to humans.

Illness is understood as a condition of the body expressed in a disruption of its normal vital functions, life expectancy and ability to maintain self-regulation.

Mass illness of people is the illness of a significant number of the population in a particular territory, when the incidence of a particular disease exceeds the average statistical level several times. The criteria for mass occurrence are determined by epidemiologists. The main mass illnesses among people include acute intestinal diseases, diphtheria, measles, scabies, anthrax, cholera, tuberculosis and brucellosis.

Mass illnesses include both infectious diseases caused by specific microbes or viruses and non-infectious diseases caused by other factors.

Infectious and parasitic diseases are human diseases whose occurrence and spread are обусловлены by the impact of biological environmental factors on humans and the possibility of transmission of the disease from an infected person or animal to a healthy person (subparagraph 12э) of paragraph 1 of Article 1 of the Code “On Public Health and the Healthcare System”).

Infectious diseases posing a danger to others are human infectious diseases characterised by a severe course, a high level of mortality and disability, and rapid spread among the population (epidemic).

Mass non-infectious diseases (poisoning) are human diseases whose occurrence is caused by the impact of physical and/or chemical and/or social environmental factors.

Infection is understood as the penetration of an infectious disease pathogen into the human body, resulting in the development of one or another form of an infectious process (disease or carriage of infectious agents).

Exposure to radiation is understood as the impact of any types of radiation on the human body. Exposure may occur through thermal (infrared), visible and ultraviolet light, cosmic rays, ionising radiation, etc.

Poisoning is understood as a disease (condition) arising from acute (single) or chronic (prolonged) exposure of a person to chemical, biological and other environmental factors.

By its legal structure, this corpus delicti is material, meaning that, in order for it to be recognised as completed, the consequences specified by law must occur: mass illness, infection, exposure to radiation or poisoning of people. When these consequences occur, harm is caused to human health. At the same time, these consequences must be of a mass nature, meaning that a significant number of people must be affected as a result.

The subjective side of the crime is characterised by an unintentional form of guilt, namely, the person foresaw the possibility of the occurrence of the specified consequences of their actions (omissions), but, without sufficient grounds, recklessly counted on preventing these consequences, or did not foresee the possibility of mass illness, infection, exposure to radiation or poisoning of people resulting from their actions (omissions), although, with due attention and foresight, they should and could have foreseen these consequences.

The subject of the crime is a sane natural person who has reached the age of 16.

If the perpetrator commits acts aimed at intentionally causing the consequences specified in the law, liability shall arise under the Articles concerning crimes against the person, and, where the purpose of undermining the security and defence capability of the Republic of Kazakhstan is proven, under the Article on sabotage (Article 184 of the Criminal Code).

A more dangerous form of this crime is the violation of the relevant rules resulting through negligence in the death of a person (Part 2 of Article 304 of the Criminal Code).

The infliction, through negligence, of the death of two or more persons is specified as a particularly aggravating circumstance (Part 3).

The act provided for in Part 1 of Article 304 of the Criminal Code of the Republic of Kazakhstan is classified as a minor offence.

The acts provided for in Parts 2 and 3 of Article 304 of the Criminal Code of the Republic of Kazakhstan are classified as medium-gravity offences.

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 Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

Constitution Law Code Regulatory Decree Order Decision Resolution Lawyer Almaty Lawyer Legal Service Legal Consultation Civil Criminal Administrative Cases and Disputes Defence Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Norms Note Rules Programme Charter Charter Article Commentary Resolution Regulations Protocol Draft Programme Rules Addresses