Commentary on Article 358. Operation of an Aircraft, Sea, River or Small-Size Vessel by a Person under the Influence of Alcohol, Narcotic Drugs and (or) Toxic Substances, Transfer of Control to Such a Person or Allowing Such a Person to Operate an Aircraft, Sea, River or Small-Size Vessel under the Criminal Code of the Republic of Kazakhstan

1. Operation of an aircraft, sea, river or small-size vessel by a person who is under the influence of alcohol, narcotic drugs or toxic substances, or the transfer of control of such a vessel to a person who is under the influence of alcohol, narcotic drugs or toxic substances, as well as allowing a person who is under the influence of alcohol, narcotic drugs or toxic substances to operate such a vessel, committed by an official or by the owner or holder of the vessel, —

shall be punishable by a fine in an amount of up to two hundred monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to two hundred hours, or arrest for a period of up to fifty days, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to two years.

2. The same acts resulting through negligence in the infliction of moderate bodily harm to a person, —

shall be punishable by a fine in an amount of up to one thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to six hundred hours, or restriction of liberty for a period of up to two years, or imprisonment for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to five years.

3. The acts provided for in Part One of this Article, resulting through negligence in the infliction of grievous bodily harm to a person, —

shall be punishable by a fine in an amount of up to three thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to one thousand two hundred hours, or restriction of liberty for a period of up to five years, or imprisonment for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to six years.

4. The acts provided for in Part One of this Article, resulting through negligence in the death of a person, —

shall be punishable by imprisonment for a period of five to ten years, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to seven years.

5. The acts provided for in Part One of this Article, resulting through negligence in the death of two or more persons, —

shall be punishable by imprisonment for a period of seven to twelve years, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to ten years.

The public danger of the criminal offence under consideration (Part 1 constitutes a criminal misdemeanour; Parts 2, 3, 4 and 5 constitute crimes) is обусловed by the fact that operating an aircraft, sea, river or small-size vessel while under the influence of intoxicating substances, or transferring control to or allowing a person under the influence of intoxicating substances to operate the specified means of transport, creates a real threat to the safety of their movement or operation, the lives and health of a large number of citizens, and may cause substantial material damage to the environment.

The object of the criminal offence under consideration is the social relations in the sphere of the safety of movement or operation of an aircraft, sea, river or small-size vessel. The additional object is the social relations guaranteeing the protection of citizens' lives and health, the preservation of property and the protection of the environment.

The subject matter of the criminal offence is aircraft, sea, river or small-size vessels.

According to Subparagraph 40) of Article 1 of the Law of the Republic of Kazakhstan dated 15 July 2010, “On the Use of the Airspace of the Republic of Kazakhstan and Aviation Activities,” an aircraft is a device supported in the atmosphere through its interaction with air, excluding interaction with air reflected from the Earth's (water) surface.

Aircraft include aeroplanes, seaplanes, helicopters, as well as other aeronautical vehicles (aerostats, airships, gliders, hang gliders, hot-air balloons, etc.), the operation of which requires compliance with safety measures.

A sea vessel is a type of maritime transport capable of moving across the water surface (seas, oceans and adjacent waters), as well as remaining afloat and performing certain functions related to the transportation, transshipment, storage and processing of various cargoes, the transportation of passengers and the provision of services to them.

A river vessel is a type of river transport (inland water transport) that carries out the transportation of cargo and passengers by vessels along inland waterways, both natural (rivers, lakes) and artificial (canals, reservoirs).

Sea and river vessels include all self-propelled vessels and watercraft: passenger vessels, research vessels, extraction vessels (fishing vessels, crab-catching vessels, etc.), processing vessels (floating bases, floating factories), auxiliary vessels (tugs, etc.), technical vessels (dredgers, bottom-cleaning vessels, cable-laying vessels, etc.), rescue vessels, sports vessels, including hovercraft and hydrofoil vessels, as well as small-size sea and river vessels.

The definition of a small-size vessel is contained in Subparagraph 45) of Article 1 of the Law of the Republic of Kazakhstan dated 6 July 2004, “On Inland Water Transport” (see the commentary to Article 344 of the Criminal Code).

Vessels that do not have a mechanical engine and are moved by towing (barges, flat-bottomed vessels and others), rowing boats, stationary offshore platforms, as well as fixed fishing gear and rafts, are not the subject matter of the criminal offence under consideration.

The objective side of the criminal offence under consideration consists in the operation of an aircraft, sea, river or small-size vessel by a person who is under the influence of alcohol, narcotic drugs or toxic substances, or the transfer of control of such a vessel to a person who is under the influence of alcohol, narcotic drugs or toxic substances, as well as allowing a person who is under the influence of alcohol, narcotic drugs or toxic substances to operate such a vessel, where such allowing is committed by an official or by the owner or holder of the vessel.

Operating an aircraft, sea, river or small-size vessel means the performance by a person located inside the vessel of actions involving the control levers and instruments, as a result of which the vessel begins moving from its parking or stopping location, regardless of the distance travelled. Consequently, the operation of an aircraft, sea, river or small-size vessel begins directly from the moment the means of transport starts moving (the commencement of movement of an aeroplane, motor vessel, personal watercraft, etc.).

Preparatory actions, such as opening the doors of the cockpit or quarterdeck, switching on the ignition, starting the engine, checking the lighting, as well as moving a vessel manually, being inside the cockpit of a stationary vessel (aeroplane, ship, etc.), or performing any work directly near the vessel (refuelling, carrying out repairs, etc.), do not constitute operation of a means of transport.

A mandatory condition for bringing a person to criminal liability under the Article under consideration is the operation of an aircraft, sea, river or small-size vessel by a person who is under the influence of alcohol, narcotic drugs and (or) toxic substances.

According to Paragraph 10 of Article 54 of the Law of the Republic of Kazakhstan dated 15 July 2015, “On the Use of the Airspace of the Republic of Kazakhstan and Aviation Activities,” persons involved in performing and ensuring aircraft flights, their technical maintenance and air traffic services are prohibited from carrying out such activities while under the influence of alcohol, narcotic drugs or toxic substances (or their analogues), or from consuming substances that cause such intoxication while performing their duties.

In accordance with Paragraphs 22 and 23 of the Rules for Flight Operations in Civil Aviation of the Republic of Kazakhstan, approved by Order of the Acting Minister for Investment and Development of the Republic of Kazakhstan dated 28 July 2017, a crew member shall not be permitted to perform a flight if they are under the influence of psychoactive substances (alcohol, narcotic drugs or medicinal substances) that may affect flight safety. Crew members:

1) shall not consume alcohol less than 12 hours before the scheduled time for commencing the performance of their duties or during pre-flight rest;

2) shall not be permitted to perform their duties if the permissible alcohol content in their blood is exceeded;

3) shall not consume alcohol during a flight or while on reserve duty.

According to Paragraph 258 of Section 12, Paragraph 8 of the Service Regulations on Ships of the Maritime Transport of the Republic of Kazakhstan, crew members are not permitted to consume alcoholic beverages, use narcotic substances or be on board a vessel while under the influence of alcohol or narcotic drugs.

The transfer of control of an aircraft, sea, river or small-size vessel means the voluntary transfer by a pilot or a person operating a means of transport of the right to operate the specified types of transport to another pilot or person operating the vessel, who then sets the vessel in motion and operates it. In this regard, the person transferring control must know (or must assume) that the person to whom control of the means of transport is being transferred is under the influence of intoxicating substances.

When investigating criminal cases in this category, it is necessary to establish for what purpose and under what circumstances the means of transport was transferred to another person. If it was transferred by an official, owner or holder to a person under the influence of intoxicating substances not for the purpose of operating it (for example, for safekeeping by a person who is under the influence of intoxicating substances, but who subsequently began operating it on their own initiative), the liability of such persons under Article 358 of the Criminal Code is excluded.

Allowing a person under the influence of alcohol, narcotic drugs or toxic substances to operate an aircraft, sea, river or small-size vessel means unlawful actions (or omissions) by officials, the owner or holder of the vessel, expressed in any form (oral, written or tacit consent), related to the complete transfer of control of the vessel to a person who is under the influence of intoxicating substances (alcohol, narcotic drugs or toxic substances).

In this regard, the fact that the pilot or person operating the vessel is intoxicated must be obvious to the officials, owner or holder of the vessel (for example, the captain of a vessel sees that a sailor is intoxicated but nevertheless allows that person to operate the vessel).

In such cases, the person guilty of transferring control or allowing the vessel to be operated, as well as the person who actually operated the vessel while under the influence of intoxicating substances, shall be held liable under Part 1 of Article 358 of the Criminal Code.

The actions of an official, owner or holder of a vessel who, in violation of safety regulations, allows persons subordinate to them in the course of their service to operate the vessel shall be classified in a similar manner, except in cases where such persons have been removed from operating or exercising control over the means of transport by officials acting in the performance of their official duties (their immediate superior or employees of the security service or the police).

With regard to the criminal offence under consideration, the functions of an official in air transport are performed by the head of the flight operations service, the head of the flight safety inspection, the head of the engineering and aviation service; managers responsible for the operation of aircraft, the conduct of flights and preparation for them, the organisation of medical examinations of aviation personnel by medical-flight expert commissions, etc.; in maritime and river transport, these functions are performed by heads of water transport organisations and enterprises, their deputies, chief engineers, heads of technical control departments, etc.

According to Subparagraph 5) of Paragraph 7 of Chapter 1 of the Rules for State Registration of Civil Aircraft of the Republic of Kazakhstan and Rights Thereto, approved by Order of the Minister for Investment and Development of the Republic of Kazakhstan dated 30 June 2017, the owner (holder) of an aircraft is an individual or legal entity of the Republic of Kazakhstan to whom the aircraft belongs by right of ownership or on other lawful grounds.

According to Subparagraph 24) of Article 1 of the Law of the Republic of Kazakhstan dated 17 January 2002, “On Merchant Shipping,” a shipowner is a person who operates a vessel in their own name, regardless of whether they are the owner of the vessel or use it on another lawful basis.

In accordance with the Law of the Republic of Kazakhstan dated 6 July 2004, “On Inland Water Transport,” a vessel holder is a person who operates a vessel in their own name on the basis of the right of possession and use in accordance with the legislation of the Republic of Kazakhstan (Subparagraph 13) of Article 1).

The owner of a vessel is a person registered as the owner of the vessel in accordance with the Rules for State Registration of Vessels, including small-size vessels, and Rights Thereto (Subparagraph 19) of Article 1 of the said Law).

Vessels may be owned by: the State; citizens and legal entities of the Republic of Kazakhstan; foreign states, foreigners, stateless persons and foreign legal entities, unless otherwise provided for by legislative acts of the Republic of Kazakhstan.

A person who operates a vessel in the performance of their official or employment duties, including on the basis of an employment or civil-law contract with the owner or another holder of the vessel, or on the basis of their expression of will without formalising a written transaction, is not considered the holder of the vessel.

The holder of a means of transport is either the owner of an aircraft, sea, river or small-size vessel, or a person who possesses it on the basis of a power of attorney, lease agreement or other grounds specified above.

The composition of the criminal misdemeanour provided for in Part 1 of Article 358 of the Criminal Code is formal in structure; therefore, bringing a person to criminal liability does not require the occurrence of any negative consequences. It is sufficient to establish the mere fact that an aircraft, sea, river or small-size vessel was operated by a person who was under the influence of alcohol, narcotic drugs and (or) toxic substances; or that control of such a vessel was transferred to such a person; or that such a person was allowed to operate the vessel by an official or by the owner or holder of the means of transport.

The compositions of the crimes provided for in Parts 2, 3, 4 and 5 of Article 358 of the Criminal Code are material in structure. Accordingly, the objective side of these acts includes three mandatory elements. First, this is a socially dangerous act consisting in the operation of an aircraft, sea, river or small-size vessel by a person who is under the influence of alcohol, narcotic drugs and (or) toxic substances; or the transfer of control of such a vessel to such a person; or allowing such a person to operate the vessel, committed by an official or by the owner or holder of the vessel. Second, socially dangerous consequences expressed in causing harm to human life and health. Third, there must be a causal relationship between the violations and the consequences specified in the law. Accordingly, the acts are considered completed from the moment the socially dangerous consequences occur.

As socially dangerous consequences of operating an aircraft, sea, river or small-size vessel by a person who is under the influence of alcohol, narcotic drugs and (or) toxic substances; or transferring control of such a vessel to such a person; or allowing such a person to operate the vessel, committed by an official or by the owner or holder of the vessel, the legislator has provided for the following: in Part 2 of Article 358 of the Criminal Code, the negligent infliction of moderate bodily harm to a person; in Part 3 of the Article under consideration, the negligent infliction of grievous bodily harm to a person; in Part 4, the negligent causing of a person's death; and in Part 5, the negligent causing of the death of two or more persons.

The subjective side of the composition of the criminal misdemeanour provided for in Part 1 of Article 358 of the Criminal Code is characterised by an intentional form of guilt, since the guilty person is aware that they have no right to operate an aircraft, sea, river or small-size vessel but, while under the influence of intoxicating substances, takes control of it and wishes to do so; or an official, owner or holder of the vessel is aware that the pilot or person operating the vessel is under the influence of intoxicating substances but nevertheless wishes to transfer control of the means of transport to such a person or allow that person to operate the vessel. The commission of the act under consideration is also possible in the form of indirect intent, where the guilty persons consciously allow control of the vessel to be transferred to a person who is under the influence of intoxicating substances.

The acts provided for in Parts 2, 3, 4 and 5 of Article 358 of the Criminal Code are characterised by a dual form of guilt (Article 22 of the Criminal Code), meaning that an intentional form of guilt is established in relation to the very fact of operating an aircraft, sea, river or small-size vessel, transferring control of such a vessel, or allowing such a vessel to be operated, whereas an unintentional form of guilt applies in relation to the more serious consequences.

The subject of the criminal offence under consideration is a physically competent individual who has reached the age of 16:

a) persons who operated a means of transport while under the influence of alcohol, narcotic drugs and (or) toxic substances;

b) officials, owners or holders of the vessel.

The act provided for in Part 1 of Article 358 of the Criminal Code is classified as a criminal misdemeanour.

The act provided for in Part 2 of Article 358 of the Criminal Code is classified as a crime of minor gravity.

The act provided for in Part 3 of Article 358 of the Criminal Code is classified as a crime of medium gravity.

The acts provided for in Parts 4 and 5 of Article 358 of the Criminal Code are classified as serious crimes.

Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, 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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