Commentary to Art. 264 of the Criminal Code of the Russian Federation
1. Some controversial issues of judicial practice are resolved in the Post. Plenum of the Armed Forces of the Russian Federation dated December 9, 2008 N 25 (as amended by the Post. Plenum of the Armed Forces of the Russian Federation dated May 24, 2016 N 22).
2. The object of the crime is the safety of traffic and operation of the vehicle, the additional object is human life and health.
The subject of the crime are cars, trams, tractors and self-propelled vehicles, which are united by the concept of “mechanical means”, i.e. Vehicles driven by an engine.
Mopeds, i.e. two- or three-wheeled mechanical vehicles, the maximum design speed of which does not exceed 50 km/h, having an internal combustion engine with a displacement not exceeding 50 cubic meters. cm, or an electric motor with a rated maximum power in a continuous load mode of more than 0.25 kW and less than 4 kW, quadricycles with similar characteristics are among the objects of the crime provided for in Art. 264 of the Criminal Code of the Russian Federation do not apply. Bicycles that have an electric motor with a rated maximum power in continuous load mode not exceeding 0.25 kW, which automatically turns off at a speed of more than 25 km/h, are not classified as mechanical vehicles and are also not the subject of this crime.
3. The objective side of the crime includes violation of traffic rules and (or) operation of the vehicle, the consequences provided for in parts 1 - 6 of the commented article, and the causal relationship between them.
The most common types of traffic violations are: failure to comply with the rules for positioning a vehicle on the roadway (driving into oncoming traffic), choosing a speed that does not meet safety requirements taking into account visibility and other traffic conditions, exceeding the established speed limit, violating the rules of maneuvering, driving through intersections, failure to take timely measures to stop the vehicle when a danger to traffic arises, if technically possible, driving a car or other vehicle while intoxicated.
The corpus delicti constitutes only such violation of traffic rules, which led to an emergency situation, the development of which led to the occurrence of an accident.
An emergency situation is understood as a road situation in which the driver does not have the technical ability to prevent an incident, and such a situation can occur both due to his fault and for objective reasons. ——————————— URL: https://gai.ru/glossary/avariynaya-situatsiya.htm.
In the case of interaction between persons driving a vehicle, an emergency situation occurs when one of the drivers, as a result of violating traffic rules, creates a danger to traffic, and other road users, acting in accordance with traffic rules, do not have the technical ability to prevent the incident. Establishing these circumstances is a necessary condition for concluding a causal relationship between the driver’s actions containing a violation of traffic rules and the resulting consequences in the form of causing serious harm to health, death to one, two or more persons, as well as in some cases for concluding the presence (absence) of actions of a person violating traffic rules.
V., by the verdict of the court of first instance, was found guilty of the fact that in the dark, while driving a truck with a tank semi-trailer loaded with fuel and lubricants, he crossed the roadway of the city street S. with a width of 13.5 m, coming from the adjacent territory of the gas station "** *" in the direction of the entrance to the gas station "***" at a speed of about 14 km/h and at the same time did not provide an advantage in movement to the motorcycle driven by K., which was moving along the main road, thereby violating paragraphs 1.3, 8.3 of the traffic rules and requirements of the “Give way” sign, which resulted in a collision of vehicles and the negligent death of motorcycle driver K. and his passenger S.
Qualifying V.’s actions as a violation of clause 8.3 of the traffic rules and road sign 2.4 “Give way,” the court proceeded from the fact that the convict began to move across the roadway when other vehicles were moving along it.
Meanwhile, the mere presence of vehicles on the roadway, on which traffic is carried out as a priority, does not in itself indicate the need for a driver who does not have priority to comply with the “Give way” requirement. The court did not take into account that this requirement, which in its content represents an order not to interfere with vehicles having priority in traffic, is aimed at preventing a collision between vehicles whose movement trajectories intersect, and, therefore, the obligation to give way arises in a specific traffic situation, including in the event that the movement of one vehicle that does not have priority may interfere with the movement of another vehicle that has such priority. To conclude that a driver has an obligation to give way when entering a road from an adjacent territory or from a secondary road, it is important not only and not so much the fact that vehicles are on the road with priority traffic, but also the distance to them, their speed, as well as the time which is required by the driver starting the maneuver to clear the way for the approaching vehicle, indicating that the latter may be obstructed in traffic. In addition, due to the unconditional obligation of drivers to comply with traffic rules, it cannot be ignored that every road user has the right to count on their compliance by other road users and is not obliged to foresee the movement of vehicles in violation of the Rules or to assume the possibility of their violation by road users.
The appellate court, ruling an acquittal, indicated that the driver of the motorcycle, K., was moving significantly in excess of the permissible speed. At the same time, the driver of the fuel tanker V. had the opportunity to complete the maneuver of crossing the roadway without contact with the motorcycle if the motorcycle was moving at the maximum permitted speed, and did not have such an opportunity when the motorcycle was moving at the actual speed. In the case, other traffic participants were identified who were traveling in the same direction as the motorcycle, but at the permitted speed, whose movement was not impeded by the maneuver performed by the driver of the fuel tanker. In this regard, the appellate court correctly concluded that the actions of driver V. did not interfere with the movement of vehicles traveling along the intersected roadway at the permitted speed. And, therefore, the court had no grounds for concluding that he violated the requirement to give way to approaching vehicles, as provided for in clause 8.3 of the Rules and road sign 2.4.
The lack of technical ability of the person driving the vehicle to prevent an incident, if an emergency situation is created by another traffic participant as a result of the latter violating traffic rules, excludes a crime in the actions of the person driving the vehicle.
For example, I. was found guilty of violating traffic rules, resulting in the death of two persons. As established by the court, I., driving a VAZ 21104 car, followed behind and to the left of a VAZ 21124 car driven by driver P., who hit pedestrian K., who was crossing the roadway from left to right without stopping in the middle of the roadway. As a result of a collision with a pedestrian by driver P., victim K. was thrown up and fell on the hood of a VAZ 21104 car driven by I. After this, the VAZ 21104 car driven by I. drove into oncoming traffic, where it collided with an Opel car -Vectra driven by S., as a result of which the passengers of the colliding cars T. and M. died. The criminal case regarding causing the death of the pedestrian K. was discontinued against I. for lack of corpus delicti due to the lack of the convicted I. technical ability to avoid hitting a pedestrian as in maximum permissible and at actual speed. The court came to the conclusion that I. was guilty of violating clauses 1.4, 8.1, 9.2, 10.1 of the traffic rules, which resulted in the death of two passengers in the colliding cars. According to the court’s conclusions, after victim K. fell on the hood of his car, driver I. could have reacted adequately to this, and therefore had the technical ability to avoid an accident by reducing speed, but instead made an unjustified maneuver to the left, driving into the oncoming traffic lane, which led to the above vehicle collision. The court of second instance saw an error in the conclusions of the court of first instance, which established a causal connection between the collision with a pedestrian by another driver and driver I.'s departure into the oncoming lane, but nevertheless made a conclusion based on assumptions that he had the technical ability to avoid a collision with an oncoming car. The court regarded I.’s actions as an unjustified maneuver, which means the driver’s conscious, purposeful actions to control the car, while the established circumstances indicated that after a pedestrian fell on the hood of the car, whose body blocked the driver’s view, and due to surprise, I. lost control with your car. According to the conclusions of the court of second instance, in this case there was an uncontrolled drive of the car into the oncoming lane by the driver, the cause of which was a traffic situation created by other traffic participants, in which driver I. did not have the technical ability to prevent it, and therefore for her he is not responsible for the consequences.
The technical ability to avoid an incident means the presence of conditions that make it possible to avoid a collision (collision, rollover) by reducing the speed, stopping the vehicle, determined by the technical data and features of the vehicle, the road traffic situation and the corresponding value of the driver’s reaction time. ——————————— URL: https://gai.ru/glossary/tehnicheskaya-vozmojnost-predotvrascheniya-dorojno-transportnogo-proisshestviya.htm.
Since traffic regulations prescribe the driver's only behavior when danger arises is to reduce speed, determining the technical ability to avoid an incident has legal significance only for cases of reducing speed (braking).
In judicial practice, there are cases when a causal connection with an accident is a traffic violation committed by more than one of the drivers, for example. when vehicles simultaneously enter the oncoming lane for the purpose of overtaking. In such cases, both drivers bear responsibility for the consequences.
When hitting a pedestrian, the latter violated traffic rules, for example. when he crosses the roadway in violation of traffic rules (at a prohibiting traffic light, in an unspecified place, in a state of intoxication, etc.), if the person driving the vehicle had the technical ability to prevent a collision, in judicial practice it is, as a rule, regarded as not as a circumstance that exempts the vehicle driver from criminal liability, and as a circumstance that mitigates punishment.
The absence of the technical ability of the person driving the vehicle to prevent a collision with a pedestrian does not in all cases exempt from criminal liability: for example, if the main reason for the collision with a pedestrian is the failure of the person driving the vehicle to comply with special traffic rules, failure to provide an advantage in traffic (for example, driving without stopping through a pedestrian crossing along which a pedestrian is moving (Section 14.1 of the Traffic Regulations)) or if the vehicle has stopped or slowed down in front of an unregulated pedestrian crossing (Section 14.2 of the Traffic Regulations).
In such cases, whether the person driving the vehicle has the technical ability to avoid hitting a pedestrian has no legal significance, and therefore raising the above question to experts in such cases does not make sense.
4. Parts 2, 4, 6 of the commented article contain as a qualifying feature the driving of a vehicle by a person in a state of intoxication.
On the content of the concept of a person driving a vehicle while intoxicated, see the commentary to Art. 264.1.
Driving a vehicle while intoxicated is a violation of clause 2.7 of the traffic rules. However, for criminal liability to occur, this violation must also be in a causal connection with the consequences. For example, a person who is intoxicated drives a car through a signalized intersection on a green traffic light, where a collision occurs with a car driven by a sober driver who entered the intersection on a red traffic light. In this case, violation of clause 2.7 of the traffic rules does not constitute the crime in question, since the emergency situation was created by another driver.
5. The list of technical faults, in the presence of which their operation is prohibited, is provided for by the Road Traffic Rules of the Russian Federation, the Basic Provisions for the admission of vehicles to operation and the responsibilities of officials to ensure road safety and other regulatory legal acts. ——————————— See: Post. Government of the Russian Federation dated October 23, 1993 N 1090 “On Road Traffic Rules” (together with the Basic Provisions for the admission of vehicles to operation and the responsibilities of officials to ensure road safety).
Violation by an individual owner of a vehicle of the rules for its operation when he is aware of technical malfunctions in which the operation of the vehicle is prohibited, if this entails consequences provided for by law, contains a crime under Art. 264 of the Criminal Code of the Russian Federation.
6. The subject of the crime is special. To incur criminal liability under Art. 264 of the Criminal Code, a person must have reached 16 years of age, and a traffic violation must have been committed while driving a car or other mechanical vehicle. The passenger, since he is not the person driving the vehicle, is not one of the subjects of this crime.
According to established judicial practice, the question of the legality of the participation in road traffic of the person driving the vehicle does not matter for the onset of liability. The subjects of the crime provided for in the commented article are persons both with and without a driver’s license obtained in the manner prescribed by law, persons deprived of the right to drive a vehicle, as well as persons whose driver’s license has expired.
7. From the subjective side, the form of guilt is determined by the careless attitude of the perpetrator to the consequences, which may consist of frivolity or negligence.
8. For the onset of criminal liability under the commented article, the location of the crime does not matter.
9. If the harm was caused not as a result of the movement of the vehicle, but as a result of using the vehicle to perform any work, and it was not the traffic rules that were violated, but the rules regulating other types of activities, the grounds for qualifying such actions under Art. 264 of the Criminal Code are missing.
Judicial practice: sentences and punishment under Art. 264 of the Criminal Code of the Russian Federation
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