7th Symposium of Lawyers - Alexandr Denisenko1

“Diversity of controls and sanctions in goods road transport: helping your hauliers through the maze of unharmonised applications”

Comments on the speech made by the Assistant Secretary General of KAZATO A.A. Denisenko at the seventh symposium of legal practitioners “Level of harmonisation of the policy of inspection and sanctions against carriers transporting goods by road”
Saint Petersburg, 30th April 2008
 

“Policy of inspection and sanctions regarding the working conditions for drivers”

The principal documents governing conditions for the use of vehicles and trailers for international transport are:

• The Convention on road traffic (1977.05.21),
• The European Agreement, reinforcing the Convention on road traffic (1979.06.07),
• The agreement relating to the weights and clearances of vehicles engaging in transport between countries on the roads of member states of the CEI (1999.06.04),
• The law of the Republic of Kazakhstan of 1996.07.15 № 29-I “Governing road traffic safety”,
• The resolution passed by the government of the Republic of Kazakhstan on 2002.01.19 № 62 “Certain questions governing the movement of road vehicles within the Republic of Kazakhstan”,
• Road traffic regulations within the Republic of Kazakhstan (1997.11.25, № 1650).

The mandatory conditions for the use of vehicles and trailers for international transport are:

• the vehicle must be registered in the country to which it belongs,
• the vehicle and the trailer must have registration numbers and plates for the country in which they are registered, as well as national identification plates,
• the vehicle, the trailer and components of the vehicle must comply with the instructions of the “Technical conditions for vehicles and trailers” appearing in the Convention on road traffic, the instructions contained in the appendix to the traffic regulations (resolution passed by the Republic of Kazakhstan on 1997.11.25, №1650), the national standard 25478-91 for vehicles and the requirements in terms of their technical condition in accordance with road safety conditions. They must also be in a good condition.

The regulatory acts of the Republic of Kazakhstan contain the notion of “driving time” in accordance with the European Agreement governing the work of crews of vehicles engaged in international road transport (AETR), of which Kazakhstan is a signatory. 

In the regulations for organising drivers’ working hours and breaks, as well as the requirements relating to equipping vehicles with systems for monitoring drivers’ working hours and breaks (tachographs), ratified by the Order of the Ministry of Transport and Communication of the Republic of Kazakhstan on 19th January 2004 № 16-I, the following notion appears:

“The daily driving hours – the driving hours between two daily rest periods, in whatever form, or between daily or weekly rest periods”.

The daily vehicle driving hours must not exceed 9 hours. This may be increased twice during the course of any week, up to 10 hours.

The general vehicle driving hours for any two weeks must not exceed 90 hours.

During the course of each working week, the driver must have a weekly rest period of 45 successive hours. This rest period may be reduced to 36 hours, if it is used as part of the additional  allocation for the vehicle or the additional allocation for the driver, or to 24 hours if it is used in any other place. Each reduction in the rest period must be compensated for by a corresponding rest period within three weeks.

The weekly rest period may be delayed until the end of the sixth day after six daily vehicle driving periods, if the overall driving time over the course of these days does not exceed the maximum time for six daily driving periods.

1. Transport inspections at customs posts, aimed at ensuring that carriers adhere to the rules governing drivers’ working hours and breaks, are carried out by checking the presence and proper operation of systems for monitoring drivers’ working hours and breaks (tachographs) and their use, as well as by checking the recording of lists relating to crews’ driving hours and breaks.
2. Transport inspections at posts relating to fulfilment of the requirements of the authorisation system during the course of international road transport within the Republic of Kazakhstan are carried out by checking:
   1) the availability of authorisation documents for the movement of vehicles within the Republic of Kazakhstan,
   2) the availability of special authorisations for the movement of high sided and heavy goods vehicles transporting indivisible goods,
   3) the availability of the findings of health and safety and epidemiological bodies relating to the authorisation of vehicles to provide international transport for passengers and food products, as well as goods, where transportation of the latter requires the findings of the corresponding national bodies,
   4) the compatibility of the route established for the international journey,
   5) the presence of dockets registering entry into the Republic of Kazakhstan of vehicles registered in countries where the system does not require authorisations,
   6) the presence of inspection dockets, the latter being issued at border crossings when vehicles enter the country.
3. 3. Transport inspections at crossing points for high sided and heavy goods vehicles by checking the actual weight parameters and clearances of vehicles and by defining the extent to which the latter have been exceeded in relation to the authorised parameters for the Republic of Kazakhstan, are carried out using stationary weighing systems or mobile scales, measuring instruments and clearance frames.
4. 4. During inspections, the body’s authorised officials check the following documents one more time:
   1) documents confirming the professional qualifications of drivers (driving licence (certificate issued in exchange for a driving licence and document certifying the identity of the driver) conferring the right to drive the vehicle in the corresponding category),
   2) documents relating to vehicles (registration documents, waybills and transport documents using forms designed for goods transport, lease agreement for leased vehicles, accounting documents, registers for accounting),
   3) documents confirming the ownership or right to use or make use of the vehicle, in the event that the vehicle may have been used without its owner being present,
   4) documents confirming that a national technical inspection has been carried out,
   5) the insurance policy for the mandatory insurance covering the civil liability of vehicle owners and/or the insurance policy for the mandatory insurance covering the carriers civil liability as regards passengers,
   6) documents needed for the regular transportation of passengers on established routes (certificates, transport timetables, route maps, agreements with bus stations, passports, contracts, licences),
   7) documents for the transportation of high risk goods (licences (authorisations) for operating with goods with a known risk, issued by the corresponding authorised body, a route form relating to the transportation of high risk goods, accident forms, driver and specialist training certificates, certificates authorising the driver to transport high risk goods, authorisation for the vehicle to transport high risk goods). Inspection bodies.
   The Transport Inspection Committee of the Ministry of Transport and Communication for the Republic of Kazakhstan and the Traffic Police Committee of the Ministry of Internal Affairs for the Republic of Kazakhstan.
   Appeal procedures and deadlines.
   Infringement of the rules governing drivers’ working hours and breaks when transporting passengers, luggage or goods results in a fine of between five and ten monthly assessment indicators (article 447-1 section 2).
   

The use by drivers of vehicles belonging to foreign corporate entities or foreigners for international road transport within the Republic of Kazakhstan without authorisations or special authorisations, in the cases specified in the legislation of the Republic of Kazakhstan governing road transport, results in a fine of between ten and twenty five monthly assessment indicators (article 447-2, especially for foreign carriers).

Driving a vehicle by a person not having in their possession an insurance policy relating to mandatory insurance covering the civil liability of vehicle owners and/or relating to the mandatory insurance covering the carrier’s civil liability as regards passengers, results in a fine of one monthly assessment indicator (article 470 section 3, where these offences are committed at national border crossings).

The infringement by drivers of the rules for operating vehicles – driving a vehicle or minibus that has not undergone a pre-transport technical inspection, for regular and irregular transportation of passengers and luggage – results in a fine for individual entrepreneurs of between five and ten, and for officials, of between ten and twenty five monthly assessment indicators (article 461 section 6-1).

The installation on a vehicle of false registration plates or driving vehicles that are prohibited from operation, as well as driving vehicles with false national identification plates, results in a fine of between two and six monthly assessment indicators or suspension of the driver’s driving licence for between three and six months (article 461 section 3) (traffic police).

Exceeding the speed limit specified for the vehicle by more than 40 kilometres an hour results in a fine of between five and ten monthly assessment indicators or suspension of the driver’s driving licence for between six months and a year (article 462 section 3) (on the request of the traffic police).

Exiting using the opposite carriageway in contravention of established requirements results in a fine of between two and five monthly assessment indicators or suspension of the driver’s driving licence for a period of between four and six months (article 463 section 1-1) (on the request of the traffic police).

The infringement by drivers of traffic regulations, which may have increased the risk of an accident, i.e. forced other drivers to suddenly change their speed and direction, results in a fine of between two and five monthly assessment indicators or suspension of the driver’s driving licence (for vehicle drivers) for a period of between six months and a year (article 465) (on the request of the traffic police).

The infringement of driving rules on level crossings results in a fine of between two and five  monthly assessment indicators or suspension of the driver’s driving licence for a period of up to six months (article 466) (on the request of the traffic police).

Driving a vehicle by a driver who is inebriated, under the influence of narcotics or addicted to drugs, or handing the wheel to a person who is inebriated, under the influence of narcotics or addicted to drugs, results in a fine of between ten and fifteen monthly assessment indicators or suspension of the driver’s driving licence for a period of between six months and a year (article 467 section 1) (on the request of the traffic police).

Should these same actions increase the risk of an accident, this will result in a fine of between ten and twenty monthly assessment indicators or suspension of the driver’s driving licence for a period of between one and two years (article 467 section 2) (on the request of the traffic police).

The actions outlined in section 1 of this article having harmed the health of the victim, not comprising any actions that are punishable by law, or caused damage to vehicles, goods, road installations or other property, result in a fine of between 10 and 20 monthly assessment indicators or suspension of the driver’s driving licence for a period of up to two years (article 467 section 3) (on the request of the traffic police).

Regular driving of a vehicle over the course of a year by a driver who is inebriated, under the influence of narcotics or addicted to drugs, or handing the wheel to a person who is under the influence of alcohol or drugs, results in a fine of between ten and fifty monthly assessment indicators or suspension of the driver’s driving licence for a period of between one and two years (article 467 section 5) (on the request of the traffic police). 

NB: If the driver is found to be inebriated (alcohol, narcotics or drugs), this must be certified by a doctor in accordance with the established procedure.
In the event of an infringement by a vehicle’s driver of rules designed to ensure road safety, and where this infringement has resulted in damage to vehicles, goods, roads, road infrastructures and other items or property and caused material damage, this will result in a fine of between three and six monthly assessment indicators or suspension of the driver’s driving licence for a period of between six months and a year (article 468 section 1) (on the request of the traffic police).

Should these same actions not comprise any actions that are punishable by law but have harmed the health of the victim, this will result in a fine of between five and ten monthly assessment indicators or suspension of the driver’s driving licence for a period of between six months and a year (article 468 section 2) (on the request of the traffic police).

Leaving the scene of an incident, in breach of traffic regulations, by the person driving the vehicle, where the incident does not comprise actions that are punishable by law, results in a fine of between five and ten monthly assessment indicators or suspension of the driver’s driving licence for a period of between six months and a year (article 469) (on the request of the traffic police).

NB: A person who has left the scene of an accident in order to provide assistance to a victim is exempt from prosecution under the terms of this article.
A failure to comply with the legal requirements of employees of the ministry of internal affairs (police) regarding stopping a vehicle results in a fine of between five and ten monthly assessment indicators or suspension of the driver’s driving licence for a period of between six months and a year (article 471 section 1) (on the request of the traffic police).

A failure to comply with the legal requirements of transport inspection body employees at border crossing points of the Republic of Kazakhstan and at transport checkpoints within the Republic of Kazakhstan regarding stopping a vehicle results in a fine of between five and ten monthly assessment indicators or suspension of the driver’s driving licence for a period of between six months and a year (article 471 section 1-1) (on the request of transport inspection bodies).

A failure to comply with the legal requirements of employees of the ministry of internal affairs (police) regarding submitting to an expert examination, in accordance with established procedure, into inebriation by alcohol, narcotics or drugs results in a fine of between ten and fifteen monthly assessment indicators or suspension of the driver’s driving licence for a period of up to one year (article 471 section 2) (on the request of the traffic police).

NB: The police authority’s requirements, in terms of uniformed transport inspections, relate to stopping the vehicle using a hand signal or a baton with a simultaneous whistle or using a loud-hailer. The signals must be comprehensible to the driver and given at the appropriate time, in order not to increase the risk of an accident.

Article 484. Systematic infringement of operating and road traffic rules by individuals driving vehicles

1. The systematic infringement of rules governing the operation of vehicles, i.e. perpetration over the course of the year of one infringement or more outlined in the following articles:
   (art. 247. Use of cars, motorcycles and other means of transport that exceed the standards for polluting substances in their exhaust fumes,
   art. 461. Infringement by drivers of the rules for operating vehicles,
   art. 468. Infringement by vehicle drivers of the established rules designed to ensure road safety, who have harmed the health of people, damaged vehicles and other property,
   art. 470. The driving of a vehicle by a person without documents and who is not entitled to drive,
   art. 474. The operation of vehicles in a poor technical condition and other breaches of operating rules,
   art. 475. Allowing an inebriated driver or a person who is not entitled to drive a vehicle to drive a vehicle)
   results in a fine of between three and five monthly assessment indicators or suspension of the driver’s driving licence for individuals for a period of between three and six months and the imposition of a fine for the officials responsible for operating the vehicles of between ten and thirty monthly assessment indicators.
2. The systematic infringement of traffic regulations by individuals driving vehicles, i.e. one infringement or more over the course of the year outlined in the following articles:
   (art. 461. Infringement by drivers of the rules for operating vehicles,
   art. 462. Drivers exceeding the speed limit,
   art. 463. A failure by vehicle drivers to comply with traffic lights, traffic control signs, road signs, road markings and other serious traffic offences,
   art. 464. The infringement by vehicle drivers of the rules for learning to drive, the use of external illuminated signals and audible signals and the use of hazard warning lights,
   art. 465. Infringement by the driver of traffic regulations, this infringement having increased the risk of an accident,
   art. 466. The infringement of driving rules relating to level crossings,
   art. 468. Infringement by vehicle drivers of the established rules designed to ensure road safety, who have harmed the health of people, damaged vehicles and other property,
   art. 469. Leaving the scene of an accident,
   art. 470. The driving of a vehicle by a person without documents and who is not entitled to drive,
   art. 471. A failure to comply with the requirements of employees of the ministry of internal affairs (police), transport inspection body employees at border crossing points of the Republic of Kazakhstan and at transport checkpoints within the Republic of Kazakhstan regarding stopping a vehicle, any attempt to avoid being examined as regards inebriation”:
   1. A failure to comply with the legal requirements of employees of the ministry of internal affairs (police) regarding stopping a vehicle,
   1-1. A failure to comply with the requirements of transport inspection body employees at border crossing points of the Republic of Kazakhstan and at transport checkpoints within the Republic of Kazakhstan regarding stopping a vehicle,
   2. A failure to comply with the legal requirements of employees of the ministry of internal affairs (police) regarding submitting to an examination in accordance with the established procedure for inebriation, narcotics and drugs)
   result in a fine of between three and five monthly assessment indicators or suspension of the driver’s driving licence for individuals for a period of between three and six months.

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