Commentary on Article 390. Violation of the Rules for Handling Weapons, as well as Substances and Items That Pose a Danger to Others, of the Criminal Code of the Republic of Kazakhstan
1. Violation of the rules for handling weapons, ammunition, radioactive materials, explosives or other substances and items that pose an increased danger to others, if this negligently results in the infliction of grievous or moderate bodily harm to a person, the destruction of military property, or other grave consequences, — shall be punishable by restriction of military service for a term of up to two years, or detention in a disciplinary military unit for a term of up to two years, or arrest for a term of up to three months, or imprisonment for a term of up to two years.
2. The same act, which negligently results in the death of a person, — shall be punishable by imprisonment for a term of up to five years.
3. An act provided for in Part One of this Article, which negligently results in the death of two or more persons, — shall be punishable by imprisonment for a term of up to ten years.
The public danger of violating the rules for handling weapons, as well as substances and items that pose a danger to others, lies in the reduction of the state's defence capability, as well as the threat to the life and health of citizens and the surrounding environment.
The Law of the Republic of Kazakhstan “On Defence and the Armed Forces of the Republic of Kazakhstan” states that the Armed Forces are intended to repel aggression, provide armed protection of the territorial integrity and sovereignty of the Republic of Kazakhstan, guard and defend state and military facilities, protect the airspace, as well as perform tasks in accordance with international treaties ratified by the Republic of Kazakhstan. Compliance with the established procedure for handling weapons and ammunition is an official duty of every military serviceman, since their primary purpose is the armed defence of the state.
The direct object of this crime is the established procedure for handling weapons, ammunition, radioactive, explosive or other substances and items that pose an increased danger to others. This procedure is regulated by military regulations, instructions, provisions and other regulatory legal acts of the Republic of Kazakhstan. The additional object of the crime is the life and health of citizens and the environmental safety of the surrounding environment.
The subject of the crime is weapons, ammunition, radioactive materials, explosives or other substances and items that pose an increased danger to others. Weapons should be understood to include both conventional weapons and weapons of mass destruction. Cold weapons are not included in this group.
A general definition of weapons of mass destruction was formulated by the United Nations in 1948 as follows: “weapons operating through an atomic explosion, operating through the use of radioactive materials, lethal chemical and biological weapons possessing characteristics comparable in destructive effect to atomic weapons”.
Ammunition should be understood to mean combat missiles, shells, grenades, cartridges and other devices intended to produce a shot or explosion.
According to the Law of the Republic of Kazakhstan “On the Use of Atomic Energy” dated 14 April 1997 (as subsequently amended and supplemented): radioactive substances are materials containing chemical elements whose nuclei are capable of spontaneous decay.
In accordance with the Law of the Republic of Kazakhstan “On Radiation Safety of the Population” dated 23 April 1998 (as subsequently amended and supplemented): radiation safety is a state of the radiation environment ensured by a set of measures that limit radiation exposure to personnel, the population and the environment in accordance with established standards. Thus, radioactive substances, which possess the ability to undergo spontaneous decay, during which electromagnetic and corpuscular radiation is emitted, may cause harm to living organisms and the environment.
Explosive substances are understood to mean substances or mixtures possessing the property of instantly releasing a large amount of energy with great destructive force under the influence of chemical and other reactions.
Other substances and items that pose an increased danger to others should be understood to mean substances and items capable of causing the same harm to living organisms and nature as the substances and items mentioned above (for example, highly potent toxic substances, poisonous substances, explosive gases and vapours, and the like).
The objective aspect of this crime consists of an act or omission associated with a violation of the rules for handling the substances and items listed in the aforementioned laws, if this results in the infliction of grievous or moderate bodily harm to a person, the destruction of military equipment, or other grave consequences.
It is necessary to distinguish between the rules for handling weapons and the rules for handling other substances and items that pose an increased danger to others. Thus, unlike the rules for handling weapons, the rules for handling hazardous substances and items must be observed not only during their use, but also during their storage, transportation and other areas of circulation.
The blanket nature of the disposition of this Article requires reference to the provisions of such laws as the Law of the Republic of Kazakhstan “On the Use of Atomic Energy” and the Law of the Republic of Kazakhstan “On Radiation Safety of the Population”, as well as other regulatory acts defining the rules for handling weapons, ammunition, explosives or items that pose an increased danger to others, and presupposes the establishment of the fact of a violation of special rules (for example, the Order of the Chairman of the Committee on Atomic Energy of the Ministry of Energy and Mineral Resources of the Republic of Kazakhstan “On Approval of the Rules for the Safe Transportation of Radioactive Materials” dated 3 September 2002).
The crime is considered completed from the moment of the negligent infliction of grievous or moderate bodily harm to a person, destruction of military property, or the occurrence of other grave consequences.
The occurrence of consequences in the form of grievous or moderate bodily harm to the victim, or the destruction of military equipment, or other grave consequences constitutes a mandatory element of the corpus delicti of this act. Other grave consequences include the disabling of combat equipment, the destruction of or significant damage to military or civilian facilities, and contamination of areas of land, water bodies and air with toxic substances.
The subjective aspect of the crime is characterised by a negligent form of guilt in the form of recklessness or negligence. Criminal recklessness consists in the fact that the guilty person consciously violates the rules for handling, foresees the possibility of physical harm, destruction of military equipment or other grave consequences, but, without sufficient grounds, recklessly relies on preventing them.
Criminal negligence is defined by the fact that the guilty person does not foresee the possibility of the consequences occurring, although they should have foreseen them. The rules specified in the disposition of this provision and the person's obligation to master them must be known to the guilty person.
The subject of the crime is a special subject, namely any military serviceman who has been entrusted with weapons, ammunition, as well as substances and items that pose an increased danger to others, who, by virtue of certain circumstances, possesses them (either lawfully or in violation of the rules governing their circulation) and has violated the aforementioned rules.
Parts 2 and 3 of Article 390 of the Criminal Code of the Republic of Kazakhstan provide for increased criminal liability for the same act resulting, through negligence, in the death of one person or two or more persons.
The crimes provided for in Parts 1 and 2 of Article 390 of the Criminal Code of the Republic of Kazakhstan are classified as minor offences. The crime provided for in Part 3 of Article 390 of the Criminal Code of the Republic of Kazakhstan is classified as an offence of medium gravity.
Commentary dated 2007 on the Criminal Code of the Republic of Kazakhstan by BORKHASHVILI I.SH., Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences.
Date of amendment of the act: 02.08.2007. Date of adoption of the act: 02.08.2007. Place of adoption: NONE. Body that adopted the act: 180000000000. Region of application: 100000000000. Registration number of the regulatory legal act assigned by the rule-making body: 167. Status of the act: new. Scope of legal relations: 028000000000. Form of the act: COMMENTARY. Legal force: 1900. Language of the act: rus.
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