Commentary on Article 359 of the Criminal Code of the Republic of Kazakhstan. Allowing a Person Who Does Not Have the Right to Operate an Aircraft, Sea Vessel or River Vessel to Operate Such a Vessel
1. Allowing, by an official or by the owner or holder of an aircraft, sea vessel or river vessel, a person who does not have the right to operate such a vessel to operate that vessel, if this act has negligently caused moderate bodily harm to a person, —
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.
2. The same act, if it has negligently caused serious bodily harm to a person, —
shall be punishable by a fine in an amount of up to two 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 deprivation of liberty for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without such deprivation.
3. An act provided for in Part One of this Article, if it has negligently caused the death of a person, —
shall be punishable by deprivation of liberty for a period of up to three years, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without such deprivation.
4. An act provided for in Part One of this Article, if it has negligently caused the death of two or more persons, —
shall be punishable by deprivation of liberty for a period of up to five years, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without such deprivation.
The public danger of the criminal offence under consideration (Part 1 constitutes a criminal misdemeanour; Parts 2, 3 and 4 constitute crimes) lies in the fact that unlawfully allowing a person who does not have the right to operate an aircraft, sea vessel or river vessel to operate such means of transport creates a real threat to the safety of the movement of transport vehicles and to human life and health, and often causes substantial material damage to the environment.
The object of the criminal offence under consideration is the social relations centred on compliance with the established rules in the field of ensuring the safety of movement or operation of aircraft, sea vessels or river vessels. An additional object is the social relations guaranteeing the protection of citizens' lives and health.
As in Article 358 of the Criminal Code, the subject matter of the criminal offence under consideration is aircraft, sea vessels or river vessels.
The objective element of the criminal offence provided for in Article 359 of the Criminal Code consists in an official, or the owner or holder of an aircraft, sea vessel or river vessel, allowing a person who does not have the right to operate such a vessel to operate it, provided that this act has negligently caused moderate bodily harm to a person.
Pursuant to Article 16 of the Law of the Republic of Kazakhstan dated 21 September 1994, “On Transport”, the right to operate a vehicle is granted to a person who has the appropriate qualifications and has undergone a medical examination of their state of health, with the issuance of documents in the prescribed form.
Allowing a person who does not have the right to operate an aircraft, sea vessel or river vessel to operate such a vessel should be understood as actions (inaction) by officials, owners or holders of aircraft, sea vessels or river vessels, expressed in the failure to take measures to prevent the operation of the vessel by such a person (for example, granting permission (consent) to fly or go to sea, and other similar actions, to a person who has not undergone the relevant training in accordance with the established procedure and does not have a document (certificate) granting the right to operate the vehicle).
For the purposes of Article 359 of the Criminal Code, a person who does not have the right to operate an aircraft, sea vessel or river vessel is recognised as a person who has not undergone the relevant training in accordance with the established procedure, does not have a document (certificate) granting the right to operate the vessel, and does not have a medical certificate (certificate of fitness) confirming their suitability.
It must be established, as a mandatory requirement, that the admission of a person to operate an aircraft, sea vessel or river vessel was carried out voluntarily and that the person concerned was knowingly aware that the individual whom they allowed to operate the vessel did not have the right to operate an aircraft, sea vessel or river vessel.
The composition of the criminal offence provided for in Article 359 of the Criminal Code is, by its construction, a material composition. The act is deemed completed from the moment the socially dangerous consequences occur.
As socially dangerous consequences of the operation of an aircraft, sea vessel or river vessel by a person who does not have the right to operate such vessels, the legislator has provided for the following: in Part 1 of Article 359 of the Criminal Code, negligently causing moderate bodily harm to a person; in Part 2, negligently causing serious bodily harm to a person; in Part 3, negligently causing the death of a person; and in Part 4, negligently causing the death of two or more persons.
A causal link must be established between the act and the harmful consequences that have occurred. It should be borne in mind that the connection between allowing a person who does not have the right to operate an aircraft, sea vessel or river vessel to operate such a vessel and the harmful consequences that have occurred is indirect in nature (through the unlawful actions of the pilot or vessel operator). Therefore, an essential condition for liability under Article 359 of the Criminal Code is establishing the fact that the actions of the person who caused the harm became actually possible only because the guilty person unlawfully allowed that individual to operate the vessel. The absence of such a causal link excludes the person's liability under the Criminal Code article under consideration.
The subjective element of the criminal offence provided for in Article 359 of the Criminal Code is characterised by negligence in the form of recklessness or carelessness. The guilty person is aware that they are allowing a person who does not have the right to operate an aircraft, sea vessel or river vessel to operate such a vessel, foresees the possible harmful consequences but frivolously relies on the fact that they will not occur, or does not foresee the harmful consequences, although they should have and could have foreseen them.
If an official, owner or holder of a vehicle did not know and could not have known that the person whom they allowed to operate an aircraft, sea vessel or river vessel did not have the right to operate such vessels, the liability of such persons under Article 359 of the Criminal Code is excluded.
The subject of the criminal offence under consideration is a sane natural person who has reached the age of sixteen and who is an official or the owner or holder of the vehicle.
The act provided for in Part 1 of Article 359 of the Criminal Code constitutes a criminal misdemeanour.
The acts provided for in Parts 2, 3 and 4 of Article 359 of the Criminal Code constitute minor 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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