Commentary on Article 360. Violation of the Rules of International Flights of the Criminal Code of the Republic of Kazakhstan
1. Failure to comply with the routes, landing sites, air gates, flight altitude specified in the permit, or any other violation of the rules of international flights —
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 eight hundred hours, or restriction of liberty for a period of up to three 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 three years or without such deprivation.
2. The same act, if it results in the death of a person or other grave consequences, —
shall be punishable by imprisonment for a period of three to ten years.
The rules of international flights are the rules governing the use of a state's airspace. They are aimed at ensuring the safety of air transport traffic. At the same time, unlike Article 344 of the Criminal Code, “Violation of the Rules of Traffic Safety or Operation of Railway, Air, Sea or River Transport”, which provides for liability for violations of internal air transport traffic safety rules, the article under consideration protects the safety of international flights. An international flight of an aircraft is a flight in the airspace of more than one state.
The public danger of the crime provided for in Article 360 of the Criminal Code lies in the fact that the perpetrator violates the sovereignty of the Republic of Kazakhstan, creates a threat to the inviolability of the State Border, and may cause interstate conflicts. The act constitutes a special type of encroachment on the inviolability of the State Border, since it is committed through the use of an aircraft. In addition, deviations from the requirements established in this area may result in accidents, air disasters and numerous casualties.
The object of the crime is public relations in the sphere of the inviolability of the State Border of the Republic of Kazakhstan and ensuring the safety of international aircraft flights.
The type of air transport vehicle is irrelevant; it may be an aeroplane, helicopter, airship, hot-air balloon, etc.
The objective side of the act is expressed in failure to comply with the routes, landing sites, air gates and flight altitude specified in the permit, or in any other violation of the rules of international flights.
According to Article 2 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”: “The Republic of Kazakhstan has full and exclusive sovereignty over the airspace located above the land and water territory of the Republic and its territorial waters. The airspace of the Republic of Kazakhstan is part of its state territory.”
Violations of the rules of international flights include: a flight with an expired permit, failure to comply with flight corridors, landing at airports not open to international flights or departing from such airports, entering prohibited areas, switching off long-range communications, failing to activate identification signals, etc.
According to Article 39 of the aforementioned Law, international flights of aircraft of the Republic of Kazakhstan shall be carried out on the basis of and in accordance with the conditions of: 1) international treaties to which the Republic of Kazakhstan is a party; 2) the legislation of the Republic of Kazakhstan in the field of the use of the airspace of the Republic of Kazakhstan and aviation activities; 3) special permits for one-time flights issued by the competent authorities of the relevant foreign states.
A request for obtaining a special permit for a flight of an aircraft of the Republic of Kazakhstan in the airspace of a foreign state shall be forwarded to foreign states by the authorised body responsible for conducting foreign policy activities in the following cases: international flights of state and/or experimental aviation of the Republic of Kazakhstan; an international flight of a civil aircraft of the Republic of Kazakhstan carrying officials designated by a decision of the Government of the Republic of Kazakhstan.
The request shall be made on the basis of applications submitted by the interested state bodies of the Republic of Kazakhstan, subject to compliance with all requirements concerning aircraft documents, certificates of crew members, copies of insurance policies, as well as other requirements and rules in force in the territory of the Republic of Kazakhstan and foreign states into (through) whose territory the flight is planned to be performed.
In accordance with Article 41 of the Law, the crossing of the State Border of the Republic of Kazakhstan in the airspace shall be carried out by aircraft at the points where international air routes intersect it or through air corridors specially designated for these purposes in accordance with the procedure established by the Rules for the Use of the Airspace of the Republic of Kazakhstan.
An international flight must be performed by the aircraft crew in strict compliance with the requirements of the regime rules governing the airspace borders.
According to Article 17 of the Law of the Republic of Kazakhstan dated 16 January 2013, “On the State Border of the Republic of Kazakhstan”, aircraft travelling from the State Border to checkpoints or in the opposite direction, as well as during transit flights through the airspace of the Republic of Kazakhstan, are prohibited from: 1) landing at (departing from) airports or aerodromes that are not international and are not specified in the flight plan, as well as outside airports and aerodromes; 2) deviating from established (recommended) corridors and routes of travel, flying over the territory of prohibited zones and flight restriction zones published in aeronautical information documents; 3) disembarking (embarking) people, unloading (loading) any cargo and goods. When performing an international flight in the airspace of a foreign state, if the authorised body of the foreign state demands a forced landing at a designated aerodrome, the crew of a civil aircraft of the Republic of Kazakhstan is obliged to comply with this requirement.
Violation of certain requirements provided for by criminal law constitutes the elements of the crime under Article 360 of the Criminal Code under specific circumstances.
The law identifies the most probable methods of violating the aforementioned rules, which characterise the objective side of the act in question. These include failure to comply with the routes, landing sites, air gates and flight altitude specified in the permit.
A flight route is a predetermined path of an aircraft, indicating the locations and times of landings. Failure to comply with the flight route specified in the permit is expressed in the deviation of an aircraft from the course of travel that has been planned, established and authorised by the competent specialised bodies.
Landing is the final stage of a flight during which an aircraft returns to the ground. Failure to comply with designated landing sites means making an intermediate or final landing at a location (airport, aerodrome) not specified in the permit.
Air gates are an air harbour, generally the airspace of an airport. Failure to comply with air gates consists in an aircraft moving through an air corridor in violation of the flight parameters specified in the permit.
Flight altitude is the vertical distance from a certain level to the aircraft. Failure to comply with the flight altitude means failure to observe the vertical distance between the aircraft and the level adopted as the starting point for calculating altitude values.
Other violations of international flight rules may be manifested in crossing the border without a permit or with an expired permit, switching off long-range communications, disobeying an order to make a forced landing, etc.
Liability under Article 360 of the Criminal Code is excluded if the aforementioned violations were committed in the event of a natural disaster, catastrophe, accident, emergency situation on board an aircraft, or in other circumstances threatening people's lives or health (for example, a forced landing, seizure or hijacking of an aircraft). The place where the crime is committed is the territory of the Republic of Kazakhstan, which includes its airspace, land and water territory together with its territorial waters. Both entry into the airspace of Kazakhstan and departure from it shall be recognised as a crime.
The elements of the crime provided for in Part 1 of Article 360 of the Criminal Code are formal in their structure; therefore, the occurrence of any negative consequences is not required in order to bring a person to criminal liability. The mere fact of failure to comply with the routes, landing sites, air gates and flight altitude specified in the permit, or any other violation of the rules of international flights, is sufficient.
The elements of the crime provided for in Part 2 of Article 360 of the Criminal Code are material in their structure. The act shall be deemed completed from the moment the socially dangerous consequences occur.
The subjective side of the crime provided for in Article 360 of the Criminal Code is characterised by an intentional form of guilt in the form of direct intent. Under Part 1 of Article 360 of the Criminal Code, the perpetrator is aware that they are violating the rules of international flights and wishes to violate them. Under Part 2 of Article 360 of the Criminal Code, the act has the characteristics of an intentional form of guilt in the form of indirect intent, that is, the person operating the air transport vehicle is aware of the public danger of their actions, foresees the occurrence of adverse consequences, does not wish them to occur, but consciously allows them to occur or is indifferent to their occurrence.
The obligation of persons operating air transport vehicles to foresee the possibility of socially dangerous consequences arises from their professional obligations not to violate the rules of international flights. However, the mere existence of an obligation to foresee the occurrence of socially dangerous consequences does not constitute grounds for bringing a person to criminal liability, since, in addition to the obligation to foresee adverse consequences, it is necessary to establish that the guilty person had a real opportunity to prevent the occurrence of socially dangerous consequences but failed to make use of that opportunity, as a result of which socially dangerous consequences occurred.
A person's ability to foresee socially dangerous consequences also arises from the individual qualities of the perpetrator, such as their level of education, qualifications, professional experience, length of service, state of health, etc.
The motive and purpose do not affect the legal qualification of the act and may be taken into account when imposing punishment.
The subjects of the crime under consideration are physically sane individuals who have reached the age of 16, citizens of the Republic of Kazakhstan, as well as foreigners. As a rule, they may include aircraft crew members (the aircraft commander, co-pilot, navigator, etc.) who directly operate the aircraft and are responsible for compliance with the rules of international flights.
Passengers of an aircraft and other persons who forced crew members to violate the rules of international flights may also be subjects of the act provided for in Article 360 of the Criminal Code. In this case, the crew members must be recognised as having acted in a state of extreme necessity, which excludes their liability.
Violation of the rules of international flights is often accompanied by violation of the rules of traffic safety in air transport (Article 344 of the Criminal Code). If it results in harmful consequences in the form of causing grievous or moderate bodily harm to a person, the death of people, or substantial damage, liability shall arise under the aggregate of Articles 344 and 360 of the Criminal Code.
If a violation of the rules of international flights is associated with the commission of smuggling, the act shall be classified under the aggregate of offences provided for in Article 360 and Article 234, “Economic Smuggling”, and Article 286, “Smuggling of Items Withdrawn from Circulation or Items Whose Circulation Is Restricted”; if it is associated with an act of terrorism, then under Articles 360 and 255, “Act of Terrorism”; and if it is associated with hostage-taking, then under Articles 360 and 261, “Hostage-Taking”.
The act provided for in Part 1 of Article 360 of the Criminal Code belongs to the category of crimes of medium gravity.
The act provided for in Part 2 of Article 360 of the Criminal Code belongs to the category of serious crimes.
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 the 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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