Comment to Article 305. Failure by the ship's captain to provide assistance to those in distress of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Failure by the ship's captain to provide assistance to people in distress at sea or on another waterway, if such assistance could have been provided without serious danger to his vessel, its crew and passengers, —
is punishable by a fine in the amount of two hundred to seven hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of two to seven months, or by restriction of liberty for up to three years, or by imprisonment for up to two years with deprivation of the right to hold certain positions or engage in certain activities for up to three years or without one.
2. Failure by the captain of one of the vessels that collided at sea or on the waterway to rescue another vessel, which negligently resulted in the death of the vessel or other grave consequences, if these measures could have been taken without serious danger to his vessel, its crew and passengers., —
is punishable by deprivation of the right to hold certain positions or engage in certain activities for up to three years or correctional labor for up to two years.
The public danger of a crime is expressed in the fact that when it is committed, the life and health of people in distress at sea or located in other waters are put at risk, or significant damage is caused to a marine vessel.
Providing all possible assistance to those dying at sea as a special moral duty lies with the captain of the ship from the very beginning of navigation. Currently, the fulfillment of such a duty follows from a number of international conventions. For example, Article 11 of the Brussels Convention for the Unification of Certain Rules concerning the provision of assistance and Rescue of people at Sea dated September 23, 1910. says: "Every captain is obliged, as far as he can do so without serious danger to his ship, his crew and passengers, to provide assistance to any person, even a hostile one, encountered at sea, who is in danger of dying."
Article 12 of the 1958 Convention on the High Seas stipulates that each State imposes the duty on the captain of any vessel flying its flag, without seriously endangering his vessel, crew and passengers, to assist any person found at sea who is in danger of death, to follow with all possible speed to help those who are dying, if he It is reported that they need help, since such an action on his part can reasonably be counted on.
A similar provision is contained in paragraph 2 of Article 31 of the Law of the Republic of Kazakhstan "On Merchant Shipping" dated January 17, 2002 (as amended and supplemented) and in the Law of the Republic of Kazakhstan "On the Accession of the Republic of Kazakhstan to the Convention on the Unification of Certain Rules on Liability Arising from Collisions of Inland Navigation Vessels" dated February 8, 2003.
The direct object of the crime is public relations in the field of traffic safety and operation of sea and river transport.
The objective side of the crime provided for in Part 1 of Article 305 of the Criminal Code is expressed in the inaction of the ship's captain, who did not provide assistance to people in distress at sea or on another waterway and if this assistance could have been provided without serious danger to his vessel, its crew and passengers. People in distress are those who find themselves in a life-threatening condition due to the wreck of the ship they were on. At the same time, they can be located directly in the water, on a sinking ship, on rescue equipment (boats, rafts) or on any object (on the wreckage of the ship). The victims may be citizens of any State.
In accordance with international conventions on assistance to those in distress (the Temporary Instruction "On the procedure for providing legal assistance by courts of the Republic of Kazakhstan and on the procedure for seeking legal assistance from ships of foreign States" dated August 23, 2006), the ship's captain is responsible for providing assistance to those dying at sea or on another waterway. Failure to perform such duties (inaction) constitutes a criminally punishable act provided for in Article 305 of the Criminal Code, provided that there is no serious danger to one's vessel, crew and passengers.
According to the meaning of the law, it does not matter for what reasons people find themselves in distress: as a result of a shipwreck, plane crash, capsizing or collision of floating vehicles.
The legislator explicitly stated that the responsibility of the captain is possible only in cases where such assistance does not pose a serious danger to the ship, its crew and passengers. A serious danger may be recognized, for example, the presence of a real threat of collision and flooding of a vessel, the death of crew members, passengers or injury to their health, a difficult meteorological situation (hurricane, storm), damage to the vessel as a result of a collision.
If the assistance provided was fraught with risk to the rescuers themselves, then the question of the responsibility of the ship's captain is resolved taking into account Article 34 of the Criminal Code on extreme necessity or Article 35 of the Criminal Code on reasonable risk.
The crime provided for in Part 1 of Article 305 of the Criminal Code is recognized as completed from the moment when the dead are discovered or distress signals or other reliable information about people in distress are received, to whom the ship's captain did not provide the necessary assistance if there was a real opportunity to provide it. In the event of consequences in the form of loss of life, it may affect the type and amount of punishment of the ship's captain.
Based on the disposition of Part 1 of Article 305 of the Criminal Code, the place of commission of the crime is the sea or another waterway (ocean, river, lake, shipping channel, port water area).
The subject of a special crime is the captain of a vessel who has not provided assistance to people in distress at sea or on another waterway. The subjective side of the crime is characterized by an intentional form of guilt and is committed only with direct intent. The captain is aware of the danger to people in distress at sea or in another waterway and the opportunity to provide assistance to them without serious danger to his vessel, crew and passengers, however, he does nothing to avoid providing such assistance. It is difficult to imagine a situation in which the captain of a ship is indifferent to his behavior or deliberately allows such behavior.
The motive for not providing assistance to those in distress can be different (anxiety about the transported cargo, greed, etc.). The motive is not a constructive sign of this crime and is therefore taken into account by the court when individualizing punishment.
Part 2 of Article 305 of the Criminal Code provides for liability for failure to take appropriate measures by the captain of one of the rescue vessels of another vessel that collided at sea or on a waterway, resulting in the death of the vessel or other serious consequences if these measures could have been taken without serious danger to his vessel, its crew and passengers.
Article 12 of the 1958 Convention on the High Seas requires the captain of a vessel to take appropriate measures to rescue the latter in a collision with another vessel, and to provide, if possible, the name of his vessel, the ports of registration, as well as the ports of departure and destination. This provision was later consolidated in paragraph 3 of Article 31 of the Law of the Republic of Kazakhstan "On Merchant Shipping" dated January 17, 2002 (as amended and supplemented).
On the objective side, the crime provided for in Part 2 of Article 305 of the Criminal Code is expressed in the failure of the captain of one of the colliding vessels to perform the actions necessary for him to eliminate the danger of the death of another vessel. Responsibility in this case comes on condition that there is a real opportunity to provide assistance without serious danger to their vessel, its crew and passengers. Responsibility comes regardless of who is responsible for the collision. Failure by the ship's captain to provide assistance to another vessel affected by a collision with another vessel constitutes signs of an act provided for in Part 1 of Article 305 of the Criminal Code.
By design, the composition of the crime in question is material, that is, it requires the occurrence of harmful consequences in the form of shipwreck or other serious consequences, as well as a causal relationship between the act and socially dangerous consequences.
Grave consequences should be understood as causing serious or moderate harm to the health of the victims, the death of one or more crew members or passengers, and causing serious damage to the environment.
The subject of the crime under Part 2 of Article 305 of the Criminal Code is a special one. He is the captain of a ship (sea, river) of any class and purpose, or a person who performs his duties in accordance with the established procedure (assistant captain, skipper), or a person who is on board the ship in the singular.
Other persons (crew members) who did not provide assistance to people in distress are liable under Article 119 of the Criminal Code "Abandonment in danger".
The subjective side of the crime provided for in Part 2 of Article 305 of the Criminal Code presupposes intent in relation to one's act and a reckless form of guilt, in the form of criminal arrogance or criminal negligence in relation to the consequences of one's act. The captain of the vessel is aware of the socially dangerous nature of his act, anticipates the possibility of harmful consequences as a result of failure to take appropriate measures to save another vessel that collided with his vessel, but without sufficient reason expects to prevent them or does not foresee the possibility of harmful consequences, although with due care and foresight he should have and could have foreseen them.
Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.
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