Commentary on Article 347. Leaving the Scene of a Road Traffic Accident of the Criminal Code of the Republic of Kazakhstan
1. Leaving the scene of a road traffic accident by a person driving a vehicle and violating traffic rules or the rules for the operation of vehicles, where the grave consequences provided for in Articles 345 and 346 of this Code have occurred, —
shall be punishable by a fine in an amount of up to one 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.
Note. A person who leaves the scene of a road traffic accident in connection with providing assistance to victims shall be exempt from criminal liability under this Article.
The public danger of this crime lies in the fact that a person driving a vehicle and violating traffic rules fails to provide necessary assistance to victims of road traffic accidents who are in a life- and health-threatening condition and are deprived of the ability to take measures for their own preservation. As a result, the severity of the harmful consequences increases, thereby creating a real threat of causing much greater harm to their life and health. In addition, drivers who flee the scene of an accident generally exceed the permitted speed limit and grossly violate other traffic rules, thereby creating emergency situations that often result in another road traffic accident.
The object of the crime under consideration is public relations focused on compliance with the established rules in the field of traffic safety and the operation of motor vehicles and urban rail transport.
The subject of the crime under consideration is vehicles (cars, trolleybuses, trams, or other motor vehicles driven by an engine).
For the purposes of Article 347 of the Criminal Code, victims are persons (drivers, pedestrians, cyclists, and other road users) who need assistance but, due to their physical incapacity or lack of specialized knowledge, are unable to provide such assistance to themselves.
The objective element of the crime under consideration consists in leaving the scene of a road traffic accident by a person driving a vehicle and violating traffic rules or the rules for the operation of vehicles, where the grave consequences provided for in Articles 345 and 346 of the Criminal Code have occurred.
According to subparagraph 24) of Article 1 of the Law of the Republic of Kazakhstan dated April 17, 2014, “On Road Traffic,” a road traffic accident is an event arising in the process of a vehicle moving on a road and involving that vehicle, which results in harm to human health, the death of a person, damage to vehicles, structures, or cargo, or other material damage.
According to subparagraph 8) of paragraph 3 of Article 54 of the above-mentioned Law, a driver of a motor vehicle involved in a road traffic accident is obliged to: immediately stop the vehicle (without moving it), switch on the hazard warning lights and place a warning triangle (flashing red light) in accordance with the requirements of the traffic rules, and not move objects related to the accident. Take all possible measures to provide pre-medical assistance to the injured, call an ambulance, and in emergency cases, send the injured persons in passing vehicles or, if this is impossible, transport them in their own vehicle to the nearest medical facility, provide their surname and the state registration plate number of the vehicle (upon presentation of an identity document or driver's license and vehicle registration document), and return to the scene of the accident. Immediately report the incident to the nearest internal affairs body, record the surnames and addresses of eyewitnesses, and wait for the arrival of officers of the internal affairs bodies, except in the cases provided for in subparagraph 5) of paragraph 2 of Article 54.
In the event of a road traffic accident where there are no injured persons and the drivers mutually agree on the assessment of the circumstances of the incident, they shall first draw up and sign a diagram of the accident and then proceed to the nearest subdivision of the internal affairs bodies to have the incident documented (subparagraph 5) of paragraph 2 of Article 54). The carriageway must be cleared if the movement of other vehicles is impossible. If it is necessary to clear the carriageway, the position of the vehicle, traces, and objects related to the accident must first be recorded in the presence of witnesses, all possible measures must be taken to preserve them, and a detour around the scene of the accident must be arranged.
If a driver, contrary to the requirements of the above-mentioned paragraph of the Rules, arbitrarily drives or walks away from the scene of the incident, their actions should be regarded as leaving the scene of a road traffic accident.
In accordance with paragraph 11 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On the Practice of Applying Criminal Legislation in Cases Involving Crimes Related to Violations of Traffic Rules and the Operation of Vehicles,” the actions of a driver guilty of violating traffic rules or the rules for the operation of vehicles, where the consequences provided for in Articles 345 and 346 of the Criminal Code have occurred, and who has left the scene of a road traffic accident, must be classified cumulatively under Articles 345, 346, and 347 of the Criminal Code.
Thus, by a judgment of the Almaty City Court, K. was convicted of a combination of crimes under Part 4 of Article 345 of the Criminal Code and Article 347 of the Criminal Code. While intoxicated and driving a vehicle, namely a Mercedes-Benz G5, K. violated the Traffic Rules: exceeded the established speed limit and entered an intersection on a prohibiting traffic light signal, as a result of which he collided with a Mitsubishi Galant driven by driver B., who had entered the intersection on a permitted green traffic light signal. As a result of the collision with the Mercedes-Benz G5, the Mitsubishi Galant, due to inertia, struck a traffic light pole and overturned onto its left side. As a result of the road traffic accident, the driver of the Mitsubishi Galant, B., and passengers X. and G. died at the scene from the injuries sustained, while passenger S. sustained serious bodily injuries. Having established that the passengers of the Mitsubishi Galant passenger car had suffered injuries as a result of the road traffic accident, K., in violation of the requirements of paragraph 2.1.8 of the Traffic Rules, failed to take measures to provide medical assistance to the injured or transport them to a medical facility, showed no compassion, failed to report the incident to the police, and fled the scene of the accident.
In accordance with the Note to Article 347 of the Criminal Code, a person who leaves the scene of a road traffic accident in connection with providing assistance to victims shall be exempt from criminal liability under the Article under consideration.
A person shall also not be held liable under Article 347 of the Criminal Code where they leave the scene of a road traffic accident for the purpose of reporting the incident to the police authorities or calling for additional assistance when it is impossible to provide assistance to the victim independently at the scene of the road traffic accident. In this regard, the correct legal assessment of the driver's conduct depends on a thorough examination of a number of circumstances that prompted the driver to leave the scene of the accident. Thus, B., while driving a car, struck pedestrian R., causing serious harm to his health, and then fled the scene of the accident. The court erroneously terminated the criminal prosecution against the driver under Article 347 of the Criminal Code, stating in its judgment that medical assistance had been provided to the victim by other people.
The very purpose of the criminal law prohibition on leaving the scene of a road traffic accident is to ensure that the driver provides the necessary medical assistance to victims of the accident. Therefore, a driver's abandonment of a victim in a dangerous condition at a location where assistance could have been provided by other persons does not exclude the driver's liability under Article 347 of the Criminal Code.
Leaving the scene of a road traffic accident by a person driving a vehicle and violating traffic rules or the rules for the operation of vehicles, which resulted in the grave consequences provided for in Articles 345 and 346 of the Criminal Code, should be considered a completed criminal offense from the moment the act itself is committed, that is, from the moment the person leaves the scene of the road traffic accident.
Thus, the actions of K., who, while intoxicated, struck a garbage bin enclosure located along the carriageway, were correctly classified. As a result, passenger D. sustained serious harm to his health. After the collision, K., without providing pre-medical assistance to the injured person and without reporting the incident to the internal affairs body, fled, leaving the scene of the road traffic accident. Thus, while driving a vehicle, K. violated the requirements of the Traffic Rules, as a result of which the grave consequences provided for in Part 2 of Article 345 of the Criminal Code occurred, and he left the scene of the road traffic accident.
Consequently, a driver may be held liable under Article 347 of the Criminal Code only cumulatively with Articles 345 and 346 of the Criminal Code.
If a driver leaves the scene of a road traffic accident in which they are subsequently found not to be at fault, they shall be subject only to administrative liability in accordance with Part 2 of Article 611 of the Code of Administrative Offenses.
The subjective element of the crime provided for in Article 347 of the Criminal Code is characterized by an intentional form of guilt, meaning that the offender is aware that they are leaving the scene of a road traffic accident and wishes to act in that manner.
The motive and purpose do not affect the legal classification of the offense.
The subject of the crime under consideration is a sane individual who has reached the age of sixteen.
In addition to the general characteristics, the disposition of the Article under consideration contains an indication of special characteristics of the subject. Such a characteristic is the provision that only a person driving a vehicle and violating traffic rules or the rules for the operation of vehicles, as a result of which they are specifically obliged to stop and provide assistance to victims who are in a life- and health-threatening condition, may be recognized as the subject of this crime. Persons who leave the scene of a road traffic accident include drivers operating a vehicle whose direct impact created a threat to the life or health of the victim. In this regard, whether or not such a person has the right to drive a vehicle is irrelevant. Thus, driver S. was correctly found guilty of committing the crime provided for in Article 347 of the Criminal Code. While driving a Nissan Almera and travelling south along Arkabay Street in the settlement of Baiserke, S. lost control of the vehicle and struck a lighting pole, causing bodily injuries to passenger I., and then fled the scene of the accident. At the same time, S. did not have a driver's license.
In addition to persons who have obtained a certificate granting the right to drive a vehicle in accordance with the procedure established by law, the subject of the crime commented on may also be a person who has never held or obtained a driver's license, or a person who has been deprived of their driving rights in accordance with the procedure established by law.
Thus, the subject of the crime under consideration is a person who was driving a vehicle, caused a road traffic accident, and then fled the scene of the incident.
During driving instruction in a vehicle equipped with dual controls, liability for the trainee's erroneous actions that result in the consequences provided for in the Article under consideration shall be borne not by the trainee but by the instructor.
It should be noted that the actions of a driver do not constitute the offense of leaving the scene of a road traffic accident where the victim suffered as a result of their own fault or the fault of other road users, while the driver, who did not violate the rules specified in the law, nevertheless left the victim without assistance (for example, hitting a pedestrian who suddenly appeared in front of the vehicle and driving away). Subject to the appropriate conditions, such an act should be classified under Article 119 of the Criminal Code.
Cases where a driver does not flee the scene of a road traffic accident but also fails to take measures to provide assistance to the injured should be assessed in a similar manner.
Leaving the scene of a road traffic accident is a special provision in relation to Article 119 of the Criminal Code, “Leaving a Person in Danger.” According to the general rule provided for in Part 3 of Article 13 of the Criminal Code, “Multiplicity of Criminal Offenses,” there is no concurrence of crimes in such cases, and the driver's criminal liability arises only under Article 347 of the Criminal Code.
The distinction between the elements of the crime provided for in Article 347 of the Criminal Code and those of the crime provided for in Article 119 of the Criminal Code should be made on the basis of the object of the criminal offense: the object of leaving the scene of a road traffic accident is public relations focused on compliance with the established rules in the field of road traffic safety and the operation of road transport; the object of leaving a person in danger is the interests of the individual (life and health).
The difference in the objective elements of these criminal offenses lies in the specific nature of the socially dangerous act itself, as well as the place and circumstances in which it is committed. Thus, in order to hold a person criminally liable under Article 347 of the Criminal Code, that person must have violated the rules in the field of road traffic safety or the operation of road transport, and the act may be committed only at the scene and under the circumstances of a road traffic accident. In cases of leaving a person in danger, the place, circumstances, and conditions of the socially dangerous act are irrelevant.
The subject of leaving the scene of a road traffic accident may only be a person driving a vehicle and violating traffic rules or the rules for the operation of vehicles (i.e., a special subject). The subject of leaving a person in danger is also special, but has different special characteristics: a person who had the ability to provide assistance to the victim or was obliged to care for them, or a person who placed the victim in a life- or health-threatening condition.
The act provided for in Article 347 of the Criminal Code is classified as a minor crime.
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 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, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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