Commentary on Article 462. 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 results, through negligence, in the infliction of serious or moderately serious harm to human health, the destruction of military property, or other grave consequences, —

shall be punishable by a fine in an amount of up to two thousand monthly calculation indices, or corrective labor in the same amount, or restriction of liberty for a term of up to two years, or deprivation of liberty for the same term.

2. The same act, if it results, through negligence, in the death of a person, —

shall be punishable by deprivation of liberty for a term of up to five years.

3. An act provided for in Part One of this Article, if it results, through negligence, in the death of two or more persons, —

shall be punishable by deprivation of liberty for a term of five to ten years.

The arsenal of the Armed Forces contains various systems and types of weapons, ammunition, explosives, radioactive and other substances and items that pose an increased danger to others. Their use is associated with strict compliance with special precautionary rules, the violation of which may lead to the death and injury of people, the destruction of military property, the disruption of various military activities, and other grave consequences.

These substances and items require special handling not only during their use but also during storage. Most of them possess such damaging properties that may manifest themselves spontaneously or under the slightest influence of external factors. Therefore, violation of the established storage rules may also lead to harmful consequences.

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 threat to the life and health of military personnel and civilians, the surrounding environment, as well as in the reduction of the state's defense capability.

In accordance with Article 1 of the Law of the Republic of Kazakhstan dated April 23, 1998, "On Radiation Safety of the Population," radiation safety is the state of the properties and characteristics of a nuclear energy use facility, ensured by a set of measures limiting radiation exposure to personnel, the population and the environment, in accordance with the standards established by the legislation of the Republic of Kazakhstan.

Thus, radioactive materials are substances possessing the ability to undergo spontaneous decay (during which electromagnetic and corpuscular radiation is released), which 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 considerable destructive force as a result of chemical and other reactions.

Other substances and items that pose an increased danger to others should be understood as substances and items capable of causing the same harm to living organisms and nature as such substances and items (for example, potent toxic substances, poisonous substances, explosive gases and vapors, etc.).

The objective element of the crime under commentary consists of acts or omissions related to the violation of the rules for handling the substances and items listed in the aforementioned laws, provided that this results in the infliction of serious or moderately serious harm to human health, the destruction of military property, 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 the use of these substances but also during their storage, transportation and other areas of circulation.

The blanket nature of the disposition of this Article necessitates reference to the provisions of the Laws of the Republic of Kazakhstan "On the Use of Atomic Energy" and "On Radiation Safety of the Population," as well as other regulatory legal acts establishing the rules for handling weapons, ammunition, explosives or items that pose an increased danger to others, and presupposes the establishment of the fact that special rules have been violated.

By its legal structure, the corpus delicti is material. The crime is considered completed from the moment when serious or moderately serious harm to human health is negligently caused, military property is destroyed, or other grave consequences occur.

The occurrence of consequences in the form of serious or moderately serious harm to the health of the victim, the destruction of military equipment, or other grave consequences constitutes a mandatory element of the corpus delicti of this act.

Other grave consequences are understood to include the disabling of combat equipment, the destruction or significant damage of military or civilian facilities, and the contamination of areas of land, bodies of water and air with poisonous substances.

The subjective element is characterized by an unintentional form of guilt in the form of recklessness or negligence.

In the case of recklessness, the perpetrator foresees the possibility of socially dangerous consequences arising from their actions (inaction), but, without sufficient grounds for doing so, recklessly relies on preventing these consequences.

In the case of negligence, the guilty person does not foresee the possibility of socially dangerous consequences arising from their actions (inaction), although, with due attention and foresight, they should have foreseen and could have foreseen these consequences.

Motives and purpose do not affect the legal qualification of the act but are taken into account by the court when imposing punishment.

The subject is special, 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, due to certain circumstances, possesses them (either lawfully or in violation of the rules governing their circulation), and who has violated the aforementioned rules.

Part 2 of this Article provides for criminal liability for the same act if it results, through negligence, in the death of a person.

Part 3 of Article 462 of the Criminal Code establishes criminal liability for an act provided for in Part 2 of this Article, if it results, through negligence, in the death of two or more persons.

The acts provided for in Parts 1 and 2 of Article 462 of the Criminal Code are classified as minor crimes.

The act provided for in Part 3 of Article 462 of the Criminal Code is classified as a crime of medium gravity.

2021 Commentary on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honored 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, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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