Features of criminal prosecution for gross violations of traffic rules in certain European states

Golubev Igor' Viktorovich Teacher, Department of OOP, Tyumen Institute for Advanced Training of Employees of the Ministry of Internal Affairs of Russia 625049, Russia, Tyumen region, Tyumen, Amurskaya str., 75, of. OOOP golybev.igor72@gmail.com Other publications by this author

Currently, there is a tendency to increase the number of vehicles among the population, which affects the overall traffic congestion and leads to increased accidents. As a result, the number of traffic violations is increasing, as well as an increase in gross violations of traffic rules, which in some cases result in serious harm to human health or death.

Therefore, research on the problem of prosecution for gross violations of traffic rules is relevant and in demand all over the world.

The basis for the prevention of traffic violations is to bring the perpetrators to justice, including criminal liability. Thus, Chapter 27 of the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation) provides for offences against traffic safety and operation of transport (Articles 263-271.1 of the Criminal Code of the Russian Federation).

In connection with the above, it is advisable to turn to the consideration of international research experience in the field of criminal liability for gross violations of traffic rules. The research analyzed scientific materials included in a series of publications by the Netherlands Institute of Law and Management, published following the results of the International Conference "Criminal Prosecution for Gross Violations of Traffic Rules", which took place on September 7, 2012 in the Kingdom of the Netherlands ^[1]. It should be noted that criminal legislation in the field of road safety represents a research niche in demand by the scientific community. The material we have selected for analysis contains analytical reviews that are of interest to legal scholars, legislators, and representatives of judicial authorities around the world.

The conference proceedings contain 5 chapters (2-6) devoted to the qualification of gross traffic violations in the Netherlands, England and Wales, France, Germany and Spain. Three chapters (7, 8, 9) are devoted to general issues and criminal prosecution for gross violations of traffic rules ^[1]. According to the authors of the study, the role of guilt and harm depends on the severity of punishment for offenses committed, as well as on the psychological aspects of traffic violations that relate to cause-and-effect relationships and the concept of conditional intent in relation to extremely dangerous behavior on the roads.

The purpose of this study is to determine the procedure for bringing to justice for dangerous driving based on an analysis of the commission of gross violations of traffic rules in the criminal law system of the Kingdom of the Netherlands.

To achieve this goal, it is necessary to complete a number of tasks:

- consider and analyze the complex nature of traffic violations;

- to analyze the system of gross violations of traffic rules in the criminal law of the Kingdom of the Netherlands and the types of penalties imposed for them;

- to analyze the system of gross violations of traffic rules in the criminal law of the Netherlands and the types of penalties imposed for them.

The complex nature of traffic violations requires close attention from the legislative authorities. In general, a gross violation of traffic rules is an offense based on the behavior of the subject of traffic and leading to serious consequences, as a result of which it can be qualified as a criminal offense ^{[2, p.93]}.

In this regard, bringing the perpetrator to the strictest possible punishment for gross violations of traffic rules is a deterrent for other road users.

When developing a system of measures to bring to justice for gross violations of traffic rules, problems arise in the qualification, which are due to the presence of: firstly, the corpus delicti; secondly, the subjective side of the crime; thirdly, responsibility for crimes.

At the same time, each issue must be considered separately, taking into account a large number of variables.

The main criterion for determining responsibility for a committed crime is its consequences for others, as well as the special circumstances of the crime, aggravating or mitigating responsibility.

Gross offenses in the field of road safety may not have serious consequences (for example, driving a vehicle while intoxicated or exceeding the set speed of a vehicle), then actions with a potential threat should be considered as characteristics of offenses (for example, overtaking or reversing), or they can be qualifying or aggravating circumstances of liability for offenses related to the result (driving a vehicle if there is obviously no compulsory insurance, or failure by the driver of the vehicle to comply with the requirement to undergo a medical examination for intoxication).

The next issue of establishing the subjective side of the crime is related to determining the possibility of their commission in the form of negligence. Therefore, it is necessary to establish the minimum required level of responsibility for an offense and determine whether it is advisable to differentiate punishment depending on the form of guilt.

All this can lead to an excessive complication of the procedure for qualifying prosecution for a committed traffic violation.

Therefore, it is important to determine the fair punishment for an offense. In practice, as a rule, courts impose more lenient punishments than the maximum ones. within the limits of the statutory sanctions. Nevertheless, a more severe punishment is a good indicator of how the legislator assesses the public danger of a crime in comparison with other similar offenses ^{[4, p.181]}.

Thus, the law enforcement officer has the opportunity to exercise control over the fines actually imposed. The last important aspect of punishment concerns the method of punishment.

In the context of traffic, more types of punishments should be considered. There are quite a few potential penalties specifically adapted to traffic conditions, such as: warning, administrative fine, suspension from driving, confiscation of the vehicle, deprivation of the right to drive, etc.).

Let's focus on some aspects that arise in the field of road safety. These aspects explain the most significant differences between the criminal law systems in the international legal system.

The first aspect concerns a complex issue: What should the legislator do in cases where a minor offense leads to serious consequences? Crimes related to traffic violations differ from ordinary crimes in that they are usually not committed by repeat offenders. Many serious traffic accidents are caused by ordinary people who, at least up to that point, were perceived as well–intentioned people. As soon as the criminal law targets these ordinary people, they may face penalties that are prescribed for the most serious crimes. The most difficult cases in the field of road safety are those in which serious consequences (for example, the death of a minor) are combined with low moral responsibility. Whether such behavior is grounds for criminal prosecution for a crime that has led to serious consequences depends on the minimum required level of responsibility. It should be noted that the minimum required level of culpability in the system can largely be determined by the courts.

The second aspect is how the legislator should act in cases where criminal behavior leads to real danger, rather than serious consequences. How should criminal law treat a driver who almost killed another person while overtaking dangerously? In legal systems focused primarily on consequences, such behavior may well qualify as a minor offense. In the Netherlands, for example, a specific offence involving creating a situation of danger on the road is only equated to an offence (as opposed to a criminal offence) with a maximum prison term of up to two months. Since the offense does not even require proof of guilt, it is not well suited to combat extremely criminal and dangerous behavior on the roads. However, in Germany and Spain, culpable behavior on the road that creates danger may result in liability for a specific offense.

The third aspect is how to deal with cases where behavior that usually creates an unjustified risk does not lead to real danger. Such behavior can be considered a crime that creates an abstract threat. The definition of such crimes does not specify the dangers or harmful consequences that justify their criminalization. In most criminal law systems, driving under the influence of alcohol or drugs is classified as a serious offense, since it entails substantial punishment. In this regard, the legislator faces a difficult choice: should the crime set behavioral standards, such as unfitness to drive, or should the law set a certain level of permissible alcohol and narcotic drugs in the blood, exhaled air or urine? German criminal law provides for behavioral standards in this regard. Fixed norms of alcohol and narcotic drugs content take place only in case of an administrative offense. However, in many other countries, such fixed norms are part of a criminal offense. In this case, the obvious question arises as to what standards should be established. In England and Wales, the blood alcohol concentration is set at 0.08%, in the Netherlands – 0.05% (or 0.02% for novice drivers). The Dutch legislator is currently considering the possibility of establishing fixed standards for certain types of narcotic drugs ^{[7, p.46]}. In most criminal law systems, other abstract offenses that pose a threat to road safety, such as speeding, do not carry serious penalties, and in many cases they are even regulated by administrative legislation. However, in Spain, exceeding the speed limit by more than 60 km/h in populated areas or by 80 km/h outside populated areas is a criminal offense, and a preventive measure in the form of imprisonment for a period of three to six months is applied for it.

The fourth aspect concerns whether the legislator should distinguish between different levels of responsibility in the event of serious consequences or danger. In Germany, any unintentional behavior resulting in death or serious bodily injury is considered negligence. In the Netherlands, the maximum penalties for causing death and grievous bodily harm are doubled in cases of negligence (as opposed to negligence), which can be defined as extremely negligent behavior. In the Netherlands, the crime of creating danger on the road does not require proof of guilt.

The fifth aspect should be taken into account to what extent the law should be adapted specifically to the field of road safety. In some countries, special liability is provided for negligent traffic violations. In the Netherlands and France, the maximum penalty for negligent traffic violations is much higher than for general traffic violations. However, in Germany and Spain, negligent driving is considered a negligent offense. In the Netherlands and France, aggravating circumstances such as driving under the influence of alcohol, exceeding the speed limit, or refusing to undergo a medical examination for intoxication lead to a significant increase in the maximum penalty. In England and Wales, there are two offences with special constituent factors: causing death as a result of careless driving under the influence of alcohol or drugs, and causing death as a result of driving without insurance, a license, or while suspended from driving ^[5].

The legislation of the Kingdom of the Netherlands deserves attention. where special attention is paid to determining the nature of the offense and the degree of correlation of the offense with responsibility for violations of traffic rules ^[1].

Thus, according to Dutch law, traffic violations can be divided into the following groups::

Offenses related to behavior that does not directly harm people: minor offenses consisting of violations of specific provisions concerning the limitation of the established speed limit for failure to provide an advantage in traffic; general offenses related to creating danger on the road, and an offense related to driving under the influence of a substance that impairs the ability to drive a vehicle.;

Offences committed through negligence: the commission of a negligent traffic accident, as a result of which another person was killed or seriously injured. At the same time, there is a group of common intentional crimes, such as premeditated murder and intentional infliction of grievous bodily harm (and attempted murder) ^{[6, p.94]}.

Dutch criminal law classifies criminal offenses into serious crimes or offenses. As for crimes, guilt (in the form of intent or negligence) must always be proven. Misdemeanors are less serious offenses. The maximum penalty never exceeds one year of imprisonment. Most offenses do not require proof of guilt.

It is necessary to identify separate composite (defining) signs of an offense and general requirements: illegality and sanity (guilt). A person is not criminally liable if he has not acted unlawfully, i.e. he can successfully hope for an acquittal, for example, by acting in conditions of necessary defense. Criminal liability may also be absent because the perpetrator, although he acted unlawfully, is not guilty of committing the act due to the presence of a mental disorder. This three–step structure - the definition of an offense, illegality and punishability – is standard.

Offenses, although they need to be proven guilty, cannot be classified as crimes with absolute responsibility. This is an uncodified justification recognized by case law. A fundamental principle of Dutch criminal law states that there can be no punishment without guilt. The distinction between composite elements and other liability requirements has an important procedural aspect: as for a charge that includes only composite elements, Dutch criminal law requires the court to be convinced that the person has committed the crime provided for by the charge (article 338 of the Dutch Criminal Law). Lower standards of proof are used for justification.

It is necessary to note the great freedom of action on the part of the prosecutor's Office and the courts. According to Dutch law, the Prosecutor's Office must decide whether to charge a person with a crime or not (articles 167 and 242 of the Dutch Criminal Law). The prosecutor's office is not obligated to charge a suspect, even if it is firmly convinced of the commission of a crime. They may decide not to prosecute if it is not in the public interest. Victims or other interested parties have no right to press charges. The law also gives the courts more freedom of action.

The Dutch legislator ensures road safety by establishing specific traffic rules and road signs. Violation of such rules can be characterized as an abstract crime that creates a threat. The reason for criminalizing certain actions, of course, is that they can easily lead to a threat to road safety, but the threat itself is not a defining element of the crime. The absence of a threat to road safety, and even more so the absence of an actual violation of protected interests, in no way affects the responsibility of the violator. Violating these specific traffic rules is an offense. The maximum penalty is usually imprisonment for up to two months (or a fine).

The most serious offenses that can be committed in the field of road safety (as well as other areas of public activity) are intentional. Dutch legislation does not contain specific intentional violations of traffic rules. In the case of intentional infliction of bodily injury or death, we are talking about intentional crimes. Article 287 of the Dutch Criminal Law criminalizes premeditated murder, which carries a maximum penalty of up to fifteen years in prison. Article 302.1 of the Dutch Criminal Law provides for criminal liability for intentionally causing grievous bodily harm to another person in the form of imprisonment for up to eight years. Article 302.1 of the Criminal Law of the Netherlands, in combination with article 302.2 of the Criminal Law of the Netherlands, contains the corpus delicti of a result in which death is an objective consequence of the act. The law makes a sharp distinction between crimes depending on whether the intention to commit murder can be established. In particular, unlike English law, a criminal cannot be guilty of premeditated murder if, although he caused the death of another person, he only intended to cause serious bodily injury.

Dutch criminal law recognizes two types of intent: direct and indirect. If the dangerous behavior did not result in death or grievous bodily harm, the accused may be prosecuted for attempted premeditated murder or attempted grievous bodily harm. In this case, the maximum term of imprisonment is reduced by one third (article 45 of the Dutch Criminal Law), while indirect intent is sufficient.

The Dutch criminal law includes several common negligent homicide offences, such as negligent homicide and negligent grievous bodily harm. For negligent homicide (article 307 of the Dutch Criminal Law), the maximum term of imprisonment is two years in case of recklessness and four years in case of negligence. Causing grievous bodily harm by negligence (article 308 of the Dutch Criminal Law) may result in a maximum term of imprisonment of one year (recklessness) or two years (negligence). In addition, there are specific gross violations of traffic rules related to causing death or serious bodily injury due to negligence, which entail a much stricter maximum penalty.

The maximum criminal penalty is determined by three factors.

1) the consequences of a traffic accident caused by negligent behavior on the road: in case of death of another person, the maximum term of imprisonment is three years; in case of serious injury– one year and six months;

2) the degree of guilt (negligence, negligence, etc.), so negligence acts as an aggravating circumstance, doubling the maximum sentence. Thus, in case of causing death, the offender faces a maximum term of imprisonment of six years; causing grievous bodily harm – three years.

3) regardless of the presence of an aggravating circumstance, the maximum term of imprisonment is determined by specific aggravating circumstances, for example, exceeding the prescribed speed and driving under the influence of alcohol, then the maximum penalty is doubled.

Thus, regarding gross violations of the rules of the road, defined as dangerous behavior on the road and entailing a significant maximum penalty, the legislation of the Netherlands contains only one specific provision: negligence causing a traffic accident, as a result of which another person was killed or seriously injured.

A distinctive feature of the provision is that its key element, negligence, is a complex concept that raises the difficult question of the lower limit of negligence.

In this paper, the international experience of research in the field of criminal liability for gross violations of traffic rules was reviewed. The research analyzed scientific materials included in a series of publications by the Netherlands Institute of Law and Management, published following the International Conference on Criminal Liability for Gross Traffic Violations, which took place on September 7, 2012 in Groningen (the Netherlands). The authors analyzed analytical reviews devoted to the study of the complex nature of traffic violations, as well as the system of gross violations of traffic rules in a number of European countries, highlighted the peculiarities of sentencing for these types of crimes in these states. It should be noted that the authors of these reviews investigated the role of guilt and harm in terms of the severity of punishment, as well as the psychological aspects of the behavior of drivers of vehicles that are relevant to the causal relationships of the commission of these types of crimes in the field of road safety.

Having conducted a comparative analysis of the current legislation of Russia and foreign countries (the Netherlands, England, and Wales), it can be stated that proper qualification and increased liability for gross violations of traffic rules make it possible to stabilize safety on public roads. At the same time, the degree of danger should be taken into account, and therefore it is necessary to carry out an additional classification of offenses, by analogy with foreign countries.

Thus, in accordance with the legislation of the Kingdom of the Netherlands and the Republic of France, the maximum penalty for negligent traffic violations is higher than an administrative offense, and there is an intermediate offense between administrative and criminal liability. This principle can be implemented in Russian legislation.