Commentary on Article 18. Criminal Liability of Persons Who Have Committed a Criminal Offence While Intoxicated of the Criminal Code of the Republic of Kazakhstan
A person who has committed a criminal offence while intoxicated as a result of the consumption of alcohol, narcotic drugs, psychotropic substances or other intoxicating substances shall not be exempt from criminal liability.
Committing a criminal offence while in any state of intoxication poses an increased danger both to individual citizens and to society as a whole. Alcohol, by affecting the human body, impairs a person's consciousness and willpower, the more severely the greater the degree of intoxication.
Alcohol intoxication may occur as a result of a single consumption, systematic consumption of alcoholic beverages, or a pathological craving for alcohol, i.e. the disease of alcoholism, and the last consumption may cause pathological intoxication and, accordingly, a state of insanity.
Today, alongside the traditional forms of bringing oneself into a state of intoxication through the consumption of alcoholic beverages, new types have become more widespread, associated with the use of narcotic drugs, narcotic-containing medicinal preparations and intoxicating substances in the form of inhaling the vapours of petrol, glue, acetone, etc.
Unlike traditional forms of drug intoxication, the consumption of toxic substances has a more intensive destructive effect on the central nervous system of a person, damages their consciousness and leads to the destruction of their personality. Alcohol and drug dependencies weaken a person's willpower and often become the main motive for committing acquisitive crimes in order to obtain money to purchase alcoholic beverages or drugs. The abuse of alcoholic beverages, narcotic drugs and toxic substances undermines the health not only of the adult population but also affects the health of future generations at the genetic level.
The article under consideration regulates the issues of bringing to criminal liability a person who has committed a criminal offence while in a state caused by the consumption of alcohol, narcotic drugs, psychotropic substances or other intoxicating substances. In this case, the person must be in a state of physiological intoxication.
In physiological intoxication, the functioning of inhibitory processes of nervous activity and self-control are weakened. However, a person who is intoxicated maintains contact with reality, and their actions are motivated in nature. By consuming alcohol, a person voluntarily brings themselves into a state of severe intoxication, which, although it disrupts mental processes, is not a pathological condition arising independently of the person's will.
Moreover, pursuant to subparagraph 12) of paragraph 1 of Article 54 of the Criminal Code, committing a criminal offence while under the influence of alcohol, narcotic drugs or toxic substances may be recognised as an aggravating circumstance of criminal liability. However, the court has the right, depending on the nature of the criminal offence, not to recognise this circumstance as aggravating.
Paragraph 4 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Imposing Criminal Punishment” states: “In accordance with subparagraph 12) of part one of Article 54 of the Criminal Code, the court has the right, depending on the nature of the criminal offence, not to recognise the commission of a crime while intoxicated as an aggravating circumstance of liability and punishment. When deciding this issue, courts must take into account whether the commission of the criminal act was, by its nature, related to the intoxication of the guilty person, as well as the circumstances under which the person found themselves in such a state. In particular, the state of intoxication of a minor at the time of committing a criminal offence cannot be taken into account as an aggravating circumstance of liability and punishment if it is associated with the involvement of the minor in the consumption of alcoholic beverages, narcotic drugs or other intoxicating substances by an adult accomplice to the criminal offence.
In cases where a circumstance provided for by Article 53 or Article 54 of the Criminal Code is specified in the disposition of an article of the Special Part of the Criminal Code of the Republic of Kazakhstan as one of the qualifying elements of a crime, it may not be recognised by the court as a mitigating or aggravating circumstance of liability and punishment for the commission of that criminal offence.
The limits of judicial proceedings are restricted by the charges brought, which are formulated when the indictment is drawn up. Circumstances mitigating or aggravating liability and punishment are included in the content of the accusation (subparagraph 4) of part 3 of Article 299 of the Criminal Procedure Code). Consequently, based on the requirements of Article 340 of the Criminal Procedure Code, the establishment by the court in its judgment of the existence of aggravating circumstances of liability that were not specified in the indictment worsens the position of the defendant and constitutes a violation of the limits of judicial proceedings. At the same time, the resolution of the issue of recognising circumstances as mitigating liability is not restricted by the limits of the accusation and must be based on the factual circumstances of the case established during the main court hearing.”
A state of intoxication caused by the consumption of alcohol, narcotic drugs or other intoxicating substances does not fall within the category of mental disorders constituting the medical criterion of insanity.
In forensic psychiatric practice, it is customary to distinguish between simple alcohol intoxication and pathological intoxication. At the same time, simple alcohol intoxication is conditionally divided into the following degrees of intoxication: 1) mild; 2) moderate; and 3) severe.
The mild degree of intoxication is characterised by reduced perception of the surrounding environment, impairment of intellectual activity, attention disorders, slowed reactions in the thinking process, as well as mood instability and other disorders.
At the moderate degree of intoxication, attention is rapidly impaired, clarity of perception is absent and the thought process slows down. Persons in this degree of intoxication may become malicious and aggressive, which leads to the commission of a criminal offence.
At the severe degree of intoxication, the ability to perform reasonable actions and make sound judgments is lost, and a tendency towards aggressive and destructive actions appears.
At any degree of intoxication, the medical criterion of insanity is absent. Consequently, a person who has committed a socially dangerous act while in a state of physiological intoxication of any degree is a subject of a criminal offence and is not exempt from criminal liability, since their actions lack both the medical and legal criteria of insanity, although the person's mental processes are impaired, which does not constitute a pathological condition as in the case of pathological intoxication.
A state of physiological intoxication should be distinguished from pathological intoxication as one of the forms of temporary mental disorder that excludes a person's sanity. Pathological intoxication should also be distinguished from the severe degree of physiological intoxication, which is qualitatively different from a short-term mental disorder. Their proper differentiation is of great importance for resolving the issue of bringing persons who have committed criminal offences while intoxicated to criminal liability or exempting them from such liability when the issue concerns a state of insanity resulting from pathological intoxication. In psychiatry, pathological intoxication belongs to the group of acute, short-term mental disorders. It occurs as a result of consuming not only significant but also small doses of alcohol. This condition is characterised by a sudden change in consciousness.
Pathological intoxication mainly manifests itself in two forms: epileptoid and paranoid. In the epileptoid form of pathological intoxication, a person experiences a distorted perception of the surrounding reality, a twilight state of consciousness and pathological excitement, which may lead to unlawful behaviour. In the paranoid form of pathological intoxication, a person experiences hallucinations and delusional ideas. Their consciousness is impaired, the surrounding reality is perceived in a distorted manner, and feelings of fear and anxiety arise, which may give rise to a desire to escape, defend oneself and attack enemies who appear to them in their delusions. In the paranoid and epileptoid forms of intoxication, both of the above-mentioned criteria of insanity are present.
The provision enshrined in Article 18 of the Criminal Code establishes that a person who has committed a criminal offence while in a state caused by the consumption of alcohol, narcotic drugs, psychotropic substances or other intoxicating substances is not exempt from criminal liability provided the following conditions are met: the person must necessarily possess the characteristics of a subject of a criminal offence, i.e. be a sane natural person who has attained the age at which, pursuant to Article 15 of the Criminal Code, criminal liability arises for committing the relevant criminal offence, and the intoxication must be physiological.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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