Commentary on Article 464. Violation of Flight Rules or Rules Governing Preparation for Flights of the Criminal Code of the Republic of Kazakhstan

1. Violation of flight rules or the rules governing preparation for flights, as well as violation of the operating rules for military aircraft, where such violations negligently result in the infliction of grievous or moderate bodily harm to a person, an accident or the disabling of military equipment, or a prolonged reduction in the level of combat readiness and combat capability of military units and subdivisions, —

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 arrest for a term of up to fifty days.

2. The same acts, where they negligently result in the death of a person, —

shall be punishable by restriction of liberty for a term of up to four years or deprivation of liberty for the same term, with deprivation of the right to engage in certain activities for a term of up to three years or without such deprivation.

3. The acts provided for in Part One of this Article, where they negligently result in the death of two or more persons, —

shall be punishable by deprivation of liberty for a term of four to ten years, with deprivation of the right to engage in certain activities for a term of up to ten years or without such deprivation.

The public danger of violating flight rules or the rules governing preparation for flights (Part 1 constitutes a criminal misdemeanour; Parts 2 and 3 constitute crimes) lies in the fact that such violations threaten human life and health, reduce the combat readiness and combat capability of the Air Forces of the Republic of Kazakhstan, and undermine the state's defence capability.

Deviations from the established flight rules, the rules governing preparation for flights, or other rules governing the operation of military aircraft, both in the air and in space, may lead to grave consequences, including the negligent infliction of grievous bodily harm to a person, an accident or the disabling of military equipment, or a prolonged reduction in the level of combat readiness and combat capability of military units and subdivisions, as set out in paragraph 4) of Article 3 of the Criminal Code, as well as the infliction of moderate bodily harm to a person (paragraph 12) of Article 3 of the Criminal Code).

If a violation of flight rules or the rules governing preparation for flights, or a violation of the operating rules for military aircraft, does not result in the death of a person, it shall be classified as a criminal misdemeanour. The guilty person shall be held criminally liable, but shall not be dismissed from military service.

The object of the offence is the established procedure governing the conduct of flights and preparation for them within the Air Forces, as well as the operation of military aircraft.

Flight rules and the rules governing preparation for flights, as well as the operating rules for military aircraft, are established by the Air Code of the Republic of Kazakhstan, the Flight Operations Regulations for Aviation of the Armed Forces, the Regulations on Engineering and Aviation Service, the Regulations on Navigational Service, and other relevant regulations.

Additional protected interests are the life and health of military personnel and civilians, as well as the preservation of military and other property.

From the objective standpoint, the criminal offence consists in violating the operating rules for military aircraft, which negligently results in socially dangerous consequences, and in the existence of a causal relationship between the said violations and the socially dangerous consequences.

By its legal structure, the corpus delicti is material.

The crime shall be deemed completed from the moment the following consequences occur through negligence:

the infliction of grievous or moderate bodily harm to a person, or an accident or the disabling of military equipment, or a prolonged reduction in the level of combat readiness and combat capability of military units and subdivisions (Part 1);

the death of one person (Part 2);

the death of two or more persons (Part 3).

The subjective element is characterised by negligence in the form of recklessness or carelessness. At the same time, law enforcement practitioners believe that the subjective element of the criminal offence under consideration should be characterised by two forms of guilt: negligence in relation to the consequences, while direct or indirect intent is present in relation to the violations of the rules themselves.

In the case of recklessness, the guilty person consciously deviates from the requirements of the rules ensuring flight safety, but, without sufficient grounds, believes that they will be able to prevent the occurrence of the specified consequences.

In the case of carelessness, the guilty person is unaware that their actions are contrary to the requirements of flight safety rules and therefore does not foresee the possibility of the consequences occurring, although they ought to have and could have foreseen them had they properly approached the performance of their military service duties.

The guilty person must be familiar with the rules that they are required to master.

Part 2 of Article 464 of the Criminal Code provides for criminal liability for the same acts that negligently result in the death of a person, while Part 3 provides for liability for the acts specified in Part 1 of this Article that negligently result in the death of two or more persons.

Definitions of the concepts of causing death by negligence and causing the death of two or more persons are provided in the commentary on Parts 2 and 3 of Article 462 of the Criminal Code.

The act provided for in Part 1 of Article 464 of the Criminal Code constitutes a criminal misdemeanour.

The act provided for in Part 2 of Article 464 of the Criminal Code constitutes a minor crime.

The act provided for in Part 3 of Article 464 of the Criminal Code constitutes a crime of medium gravity.

Spelling errors and obvious typographical errors have been corrected. The content, structure and length of the text have been preserved; the wording and legal provisions have not been changed.

Commentary on the Criminal Code of the Republic of Kazakhstan, 2021 edition, 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 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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