Commentary on Article 466. Driving Vehicles, Navigating Ships, Operating Military Aircraft by a Person under the Influence of Alcohol, Narcotic Drugs or Toxic Substances, Transferring the Driving or Operation of Military Equipment to Such a Person, or Permitting Such a Person to Drive or Operate Military Equipment under the Criminal Code of the Republic of Kazakhstan

1. Driving a combat, special-purpose or transport vehicle, or navigating military ships, or operating a military aircraft by a person who is under the influence of alcohol, narcotic drugs or toxic substances, or transferring the driving or operation of the specified military equipment to such a person, as well as permitting such a person to drive or operate the specified military equipment, where such conduct is committed by an official, —

shall be punishable by a fine 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, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to two years.

2. The same acts, if they negligently result in the infliction of moderate bodily injury on a person, —

shall be punishable by a fine of up to one thousand monthly calculation indices, or corrective labour in the same amount, or restriction of liberty for a term of up to two years, or deprivation of liberty for the same term, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to five years.

3. The acts provided for in Part One of this Article, if they negligently result in the infliction of serious bodily injury on a person, —

shall be punishable by a fine of up to three thousand monthly calculation indices, or corrective labour in the same amount, or restriction of liberty for a term of up to five years, or deprivation of liberty for the same term, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to six years.

4. The acts provided for in Part One of this Article, if they negligently result in the death of a person, —

shall be punishable by deprivation of liberty for a term of five to ten years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to seven years.

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

shall be punishable by deprivation of liberty for a term of seven to twelve years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to ten years.

The public danger of the criminal offence (Part 1 — a criminal misdemeanour; Parts 2, 3, 4 and 5 — crimes) lies in the fact that driving a military vehicle or navigating military ships, or operating a military aircraft by a person under the influence of alcohol or other intoxicating substances creates an unequivocally increased threat to the safety of their movement and to the lives and health of a large number of civilians and military personnel, causes substantial material damage, leads to the disruption of military operations and the implementation of decisions made, reduces the readiness and combat effectiveness of the Armed Forces of the Republic of Kazakhstan, and undermines the defence capability of the State as a whole.

It should be emphasised that all regulatory legal acts in the field of ensuring traffic safety for the specified types of transport, as well as military regulations, strictly prohibit pilots, captains, navigators and boat operators from performing their official duties while under the influence of alcohol or under the influence of any narcotic or psychotropic substances (paragraph 42 of the Basic Rules for Flights in the Airspace of the Republic of Kazakhstan, approved by Resolution of the Government of the Republic of Kazakhstan dated 18 January 2012; paragraph 258 of the Regulations on Service on Sea Transport Vessels of the Republic of Kazakhstan dated 20 June 2011, approved by Resolution of the Government of the Republic of Kazakhstan; and others).

The object of the criminal offence is the established procedure for driving vehicles, navigating ships and operating military aircraft, which ensures the safety of their movement.

The additional objects are the life and health of citizens and the preservation of property.

The objective element of the criminal offence under consideration consists of driving a combat, special-purpose or transport vehicle, or navigating military ships, or operating a military aircraft while under the influence of alcohol, narcotic drugs or toxic substances, or transferring the driving or operation of the specified military equipment to such a person, as well as permitting such a person to drive or operate the specified military equipment, where such conduct is committed by an official.

The concepts of driving vehicles, navigating ships and operating aircraft by a person under the influence of alcohol, narcotic drugs or toxic substances, transferring the driving or operation of the specified military equipment to such a person, as well as permitting such a person to drive or operate the specified military equipment, are equivalent to the corresponding concepts contained in Article 358 of the Criminal Code, which provides for criminal liability for operating an air, sea, river or small-sized vessel by a person under the influence of alcohol, narcotic drugs and/or toxic substances, transferring control of such a vessel to such a person, or permitting such a person to operate an air, sea, river or small-sized vessel.

Driving or operating the specified types of transport consists of bringing a vehicle into motion by a person located inside that vehicle (the commencement of movement of a vehicle, ship, aircraft or other means of transport from a parking place or stopping point, regardless of the distance travelled).

Preparatory actions such as switching on the ignition and starting the engine do not constitute driving or operating a vehicle. The following actions also do not fall within the definition of operating a vehicle: moving a vehicle manually, being inside the cabin of a stationary aircraft or ship, or performing any work directly near a vessel (refuelling, carrying out repairs, etc.).

The state of intoxication of a person who was operating a vehicle at the time of the commission of the criminal offence is established by authorised officials directly at the scene of the offence and/or in medical organisations using special instruments and equipment.

Intoxication is a condition arising as a result of acute intoxication with psychoactive substances, characterised by a combination of mental, behavioural, autonomic and somatoneurological disorders. Issues relating to the determination of the state of intoxication are regulated by the Order of the Minister of Healthcare of the Republic of Kazakhstan dated 25 November 2020, "On Certain Issues of Providing Medical and Social Assistance in the Field of Mental Health". In this regard, the degree of intoxication is irrelevant for the qualification of an act under Article 466 of the Criminal Code; it is sufficient to establish the fact that the person operating the vehicle was intoxicated.

According to Article 18 of the Criminal Code, intoxication must be physiological.

Thus, the fact of operating a vehicle while intoxicated exists where the offender: (a) operated a vehicle; and (b) was in a state of intoxication at the time of driving or operating the vehicle. The absence of at least one of these elements excludes the person's liability under Article 466 of the Criminal Code.

Transferring the driving or operation of the specified types of vehicles to a person who is under the influence of alcohol, narcotic drugs or toxic substances implies the voluntary transfer of the right to operate the vehicle to such a person, who independently brings the vehicle into motion and operates it. In this regard, it must be established that the official knew that the person to whom the driving or operation of the vehicle was being transferred was intoxicated.

When investigating criminal cases of this category, it is also necessary to establish the purpose and circumstances under which the vehicle was transferred to another person. If it was transferred for purposes other than driving or operation (for example, for storage, but the driver independently and without authorisation drives it away), the liability of such persons under Article 466 of the Criminal Code is excluded.

Permitting a person who is under the influence of alcohol, narcotic drugs or toxic substances to operate the specified types of vehicles means actions by an official in the form of granting such a person permission (consent) to drive or operate the vehicle (to undertake a journey, put out to sea or take a flight). In this case, the fact that the person is intoxicated must be obvious to the official. In such cases, both the official and the person who actually operated the vehicle while intoxicated are liable under Article 466 of the Criminal Code.

The actions of an official who, in violation of safety regulations, permits a person subordinate to them in the course of service to operate a vehicle are qualified in a similar manner, except in cases where that person has been suspended from driving or operating the vehicle by an official acting in the performance of their official duties (the immediate superior).

By its legal structure, the corpus delicti of the criminal offence is formal. The act is considered completed from the moment one of the acts specified in the disposition of this Article is committed.

The subjective element of the criminal offence under consideration is heterogeneous. Part One of Article 466 of the Criminal Code presupposes an intentional form of guilt in the form of direct intent on the part of a person who drives a combat, special-purpose or transport vehicle, or navigates a military ship, or operates a military aircraft while intoxicated. The offender is aware that they are not entitled to drive or operate the specified vehicle, but, being intoxicated, gets behind the controls to drive or operate it and desires to do so.

Officials, as well as the owner or possessor of the vehicle, are aware that the person is intoxicated, but nevertheless desire to transfer the driving or operation of the military vehicle to that person or permit that person to drive or operate it.

The subjective element of the qualified and especially qualified forms of the act provided for in Article 466 of the Criminal Code is characterised exclusively by negligence in the form of recklessness or criminal negligence.

In the case of recklessness, the offender consciously violates the rules governing the driving and operation of military transport while under the influence of alcohol or other intoxicating substances, foresees the possibility of physical harm or other serious consequences occurring, but, without sufficient grounds, recklessly relies on being able to prevent them.

In the case of criminal negligence, the offender does not foresee the occurrence of the consequences specified in the provision, although, with due attention and foresight, they should and could have foreseen the possibility of their occurrence.

The subject is special, namely, a military servicemember who drives a vehicle, operates a ship or operates a military aircraft while under the influence of alcohol or other intoxicating substances, and an official who permits such a military servicemember to drive or operate the specified military equipment.

The definition of an official is provided in the commentary to Article 450 of the Criminal Code.

Parts Two and Three of Article 466 of the Criminal Code provide for liability for the same acts which negligently result in the infliction of moderate and serious bodily injury on a person, respectively. Definitions of these concepts are provided in the commentary to subparagraph 3) of Part Two of Article 438 of the Criminal Code.

Parts Four and Five of Article 466 of the Criminal Code specify, as consequences, the negligent death of a person and the negligent death of two or more persons, respectively. Definitions of these concepts are provided in the commentary to Article 462 of the Criminal Code.

The act provided for in Part One of Article 466 of the Criminal Code is classified as a criminal misdemeanour.

The acts provided for in Parts Two and Three of Article 466 of the Criminal Code are classified as crimes of minor gravity.

The acts provided for in Parts Four and Five of Article 466 of the Criminal Code are classified as crimes of medium gravity.

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.

Constitution Law Code Regulatory Decree Order Decision Resolution Lawyer Almaty Lawyer Legal Service Legal Consultation Civil Criminal Administrative Cases and Disputes Defence Arbitration Cases Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Norms Note Rules Programme Charter Charter Article Commentary Resolution Regulations Protocol Draft Programme Rules Addresses