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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF UKRAINE

of December 23, 2005 No. 14

About practice of application by courts of Ukraine of the legislation on cases on some crimes against traffic safety and operation of transport, and also about administrative offenses on transport

(as of December 19, 2008)

For the purpose of ensuring identical and correct application by courts of the legislation on cases on crimes against traffic safety and operation of transport, and also about administrative offenses on transport the Plenum of the Supreme Court of Ukraine DECIDES:

1. Draw the attention of courts that timely and correct hearing of cases about the crimes provided by Articles 286 - 289, 415 Criminal codes of Ukraine (further - UK), and also cases on the administrative offenses provided by the p. 3 and 6 of the Art. 121, the p. 3 and 4 of the Art. 122, Articles 122-2, 122-4, 122-5, of the p. 3 of the Art. 123, the Art. 124, the p. 4 of the Art. 127, the p. 2 of Art. 127-1, of Art. 130 of the Code of Ukraine about administrative offenses (further - the Administrative Code), are important for safety of traffic and operation of transport, protection of life and human health, property rights of physical persons and legal entities.

2. By consideration of criminal and administrative cases of the specified categories courts shall consider provisions of precepts of law in which the concept "vehicles", in particular, of the note to Art. 286 of UK, by the p. 7 of Art. 121 the Administrative Code, item 1.10 of the Traffic regulations approved by the resolution of the Cabinet of Ministers of Ukraine of October 10, 2001 N1306 is determined.

3. By hearing of cases about crimes, responsibility for which is established by Articles 286 - 288, 415 UK, it must be kept in mind that dispositions of the regulations formulated in them - blanket. With respect thereto courts shall find out and specify carefully in sentences in what they consisted called in the listed Articles of violation; what regulations of rules, instructions, other regulations are not observed; whether there is causal relationship between these violations and socially dangerous consequences provided by the law.

Abuse of regulations of traffic safety and abuse of regulations of operation of transport by persons which steer vehicles are independent acts, and courts shall consider it in case of the resolution of decisions on such cases.

4. As the subject of the crime provided by Art. 286 of UK recognize person who steers the vehicle irrespective of whether it has the right to it, and the crime provided by Art. 415 of UK - the serviceman (the person liable for call-up during passing of training or special sessions) who directly operates the fighting, special or transport vehicle irrespective of whether he is regular driver of such machine and whether he is able to manage it. Under certain conditions person which teaches driving other person and is during educational driving near the pupil (the training officer, the instructor and so forth) can be brought to responsibility under these Articles.

5. It must be kept in mind that responsibility under Articles 286, 415 UK comes irrespective of the place where abuses of regulations of traffic safety or operation of transport, rules of driving or operation of the machine were allowed (on the highway, the highway, the street, the railway crossing, the field, the territory of the company, in the yard, and so forth).

It concerns also cases when the specified rules were violated during accomplishment by means of vehicles of various works (road, agricultural, construction, etc.). If person during accomplishment of such works, at least and during movement or operation of the machine, broke not these, and other rules (for example, industrial safety rules, in particular safety regulations), its actions, in the presence to that the bases, are subject to qualification under articles of the Criminal Code which provide responsibility for non-compliance with these (other) rules, and in appropriate cases - for crimes against life and health of person or for destruction or damage of property.

6. Explain to courts what violation by person of safety rules of traffic or operation of transport what entailed the consequences provided by various parts of Art. 286 of UK it is necessary to qualify as one crime by that part of this Article which provides heavier consequences. At the same time in sentence it is necessary to specify all qualifying essential elements of offense.

If the consequences specified in various parts of Art. 286 of UK are caused by two or more violations, the perpetrator shall bear responsibility for cumulative offenses, provided by these regulations.

7. In cases when socially dangerous consequences provided by Art. 286 UK came because of abuse of regulations of traffic safety or operation of transport by two or more transport drivers, courts shall find out nature of violations which were allowed by each of them and also whether non-compliance by another was cause of infringement of the specified rules one driver of them and whether the first had opportunity to avoid the road accident and its consequences. At the same time it must be kept in mind that criminal liability of person which violated Traffic regulations is under certain conditions excluded it is forced, because of creation of emergency by other person steering the vehicle.

8. Responsibility under Articles 286 - 288, 415 UK comes only provided that the perpetrator owing to violation of certain rules put on imprudence to the victim of average weight either heavy bodily harm or its death. If, violating the corresponding rules and realizing socially dangerous nature of the actions, the guilty person provided socially dangerous consequences and wished or consciously allowed their approach, these actions need to be qualified under articles of the Criminal Code in which responsibility for deliberate crimes against life and health of the person is established.

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