Criminal Legal Means of Counteracting Crimes Committed under

the Influence of Alcohol: A Comparative Legal Study of the

Legislation of the CIS Countries

Sergej Nikolaevich Bezugly

and Gennadij Yuryevich Lesnikov

Law institute, Belgorod State University, 85 Pobedy Street, Belgorod, Russia

Federal State Institution Research Institute of the Federal Penitentiary Service of Russia,

14, Zhitnyaya St., Moscow, GSP-1, Russia

Keywords: Criminal law, criminal law means of counteracting crimes, alcohol intoxication, criminal liability, criminal

law of the CIS countries.

Abstract: The article analyzes the criminal law means of counteracting crimes committed under the influence of alcohol

according to the legislation of the CIS countries. The purpose of the work is to comprehensively analyze the

criminal legal means of counteracting crimes committed under the influence of alcohol comprehensively, the

options for their legal regulation, and the study of doctrinal provisions on the criminal significance of the

alcohol intoxication. To achieve the goal, the authors set the main tasks that follow from the peculiarities of

the criminal codes’ norms of the CIS countries, namely: identification of typical approaches to the regulation

of criminal legal means of counteracting crimes committed under alcohol intoxication, as well as

consideration of alcoholic intoxication in three significant for criminal law aspects. The use of the method of

comparative jurisprudence in combination with general scientific methods made it possible to identify

common features of legal regulation, as well as to find discrepancies in the legal positions of legislators of the

CIS countries. In the course of the study, it was revealed that there are typical forms of using the sign of

intoxication of a subject in the Special Part of the Criminal Law, at the same time, quite specific approaches

to the regulation of intoxication were found in both the General and the Special Parts of the Criminal Law.

The results of the study make it possible to expand the knowledge of criminal law science, ensure the

integration of scientific knowledge about the norms of foreign countries, and also contribute to the process of

improving the criminal law, improving its quality and adequacy to modern realities.

1 INTRODUCTION

Alcohol and drugs have been known to mankind for

a long time, and their assignment has changed in the

course of history. Being part of the global culture,

they have transited into our time. The history of the

development of societies and states is replete with

facts of combating both alcohol and drugs, but at

present alcohol is allowed in the overwhelming

majority of states.

The alcohol intoxication can be of decisive

importance in the qualification of crimes and in the

individualization of criminal responsibility. Common

historical, cultural, political and legal origins within

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the framework of the USSR determined the choice of

a group of precisely the CIS countries, in whose

criminal codes the authors identified general

legislative solutions, as well as particular features

characteristic only for specific countries.

Research devoted to alcohol intoxication and its

effect on crime and specific crimes are currently very

relevant. A number of studies are devoted to very

narrow issues: the relationship between alcohol and

subsequent dangerous behavior with weapons

(Wintemute, Wright, Castillo-Carniglia, 2018), the

interpretation of gender equality in the practice of

sentencing in connection with alcohol intoxication

(Lightowlers, 2019). Without such narrowly focused

research, the development of science is impossible.

158

Bezugly, S. and Lesnikov, G.

Criminal Legal Means of Counteracting Crimes Committed under the Inﬂuence of Alcohol: A Comparative Legal Study of the Legislation of the CIS Countries.

DOI: 10.5220/0010632800003152

In Proceedings of the VII International Scientiﬁc-Practical Conference “Criminal Law and Operative Search Activities: Problems of Legislation, Science and Practice” (CLOSA 2021), pages

158-163

ISBN: 978-989-758-532-6; ISSN: 2184-9854

It is important to point out that the modern science

of criminal law analyzes issues related to the legal

regulation of liability for crimes committed under

alcohol intoxication and its characteristic features

(Bezugly, Bazarov, Kostennikova, Lesnikov,

Mironuk, 2020) as well as the issues of considering

this state (Zenkin, 2019; Artemenko, Sargsyan,

2017). The science of criminal law is trying to

develop approaches to improve the fight against

intemperance in transport (Korobeev, Chuchaev,

2018), although this struggle has been going on for

more than a dozen years. We believe that this is

impossible without studying the experience of foreign

legislation, which can be adopted by adapting it to the

realities of a particular state.

With all the diversity of approaches to the study

of the influence of alcohol intoxication on the

commission of a crime, it should be stated that social

relations are changing, and the norms of criminal law

are changing, and this prompts constant scientific

research that allows us to find, adapt and use positive

solutions to important issues developed by foreign

countries. Science has accumulated enough

knowledge on the topic under consideration, but still

there are unresolved issues related to the potential of

legislative use of legal structures, including the state

of alcoholic intoxication and their implementation in

criminal law norms.

The hypothesis of the research is that in the CIS

countries there are different approaches to the

criminal law regulation of the means of counteracting

crimes committed under the influence of alcohol,

differing in terminological description, and

prerequisites for interpretation.

The purpose of the study is to analyze the criminal

legal means of counteracting crimes committed under

the influence of alcohol comprehensively, the options

for their legal regulation, and the study of doctrinal

provisions on the criminal significance of the state of

intoxication.

In accordance with the criminal laws norms

regulating special issues of responsibility of persons

who have committed a crime under the influence of

alcohol, the authors set the following tasks: to identify

typical approaches to the regulation of criminal legal

means of counteracting crimes committed under the

influence of alcohol in three aspects that are

significant for criminal law: as a sign of the main

corpus delicti, as a qualifying sign, as a circumstance,

aggravating or mitigating responsibility.

The authors made an attempt to systematize the

positive (according to the authors) legislative

positions, explain them and thereby provide science

with their judgments, which, possibly, will be

perceived in related studies.

2 MATERIALS AND METHODS

The study was based on a dialectical approach to the

disclosure of legal phenomena and processes using

general scientific (systemic, logical, analysis and

synthesis) and specific scientific methods. Among the

latter are formal legal, linguistic and legal,

comparative legal, which were collectively used to

study the texts of criminal laws of 10 CIS countries in

order to identify the features of the legal regulation of

the state of alcoholic intoxication in the criminal law.

The choice of this group is due to the commonality of

the previous historical development of criminal

legislation within the USSR and the equal period of

post-Soviet development. This makes it possible to

predict, on the one hand, the presence of common

features in the regulation of criminal legal means of

counteracting crimes committed while intoxicated, on

the other hand, the diversity in the positions of

legislators on the responsibility of persons who have

committed a crime under the influence of alcohol.

3 RESULTS AND DISCUSSION

When creating any criminal law, the author tries to

provide for a balanced set of measures aimed at

counteracting individual crimes and crime in general.

In this vein, it can be noted that the entire set of norms

of the criminal law is a set of criminal law means of

combating crime, regulated by the legislator. Alcohol

intoxication in the criminal legislation of the CIS

countries can entail various legal consequences in

connection with which it is necessary to determine the

relationship between alcohol and crime, as well as the

peculiarities of the legal regulation of this issue in the

legislation.

The relationship between alcohol and crime can

be described according three broad categories (Hayes,

1993):

- direct cause-and-effect relationship;

- contributing factor;

- a relationship of coexistence.

In accordance with the above categories, the legal

regulation of the peculiarities of the liability of

persons who are intoxicated when committing a crime

should also be disclosed. However, for this study, the

above categories should be adapted, and only the

cases of the influence of the state of intoxication on

Criminal Legal Means of Counteracting Crimes Committed under the Inﬂuence of Alcohol: A Comparative Legal Study of the Legislation

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159

the fact of committing a crime should be taken into

account.

Legal regulation of the person’s responsibility

who have committed a crime under the influence of

alcohol, in our opinion, can be expressed in several

varieties: 1. the state of intoxication is a design

feature of the main corpus delicti; 2. the state of

intoxication is a qualifying feature of a specific

corpus delicti; 3. The state of intoxication is a

circumstance aggravating (Bezugly, Bazarov,

Kostennikova, Lesnikov, Mironuk, 2020) or

mitigating liability. For the purposes of this study, the

authors need to consider alcohol intoxication as a

mitigating circumstance, although we have not

previously considered such legal regulation

3.1 The State of Alcohol Intoxication Is

a Design Feature of the Main

Corpus Delicti

In this case, there will be a direct causal relationship

between alcohol intoxication and the fact of a crime.

After all, if there is no fact of alcohol intoxication,

then there is no fact of a crime. Responsibility can be

established for finding a person in a state of

intoxication under certain circumstances or for

repeated identical act. Such legal regulation of the

influence of alcohol intoxication on liability is

characteristic for motor vehicle crimes. Thus, the

Criminal Code of the Russian Federation provides for

liability for repeated driving under the influence of

alcohol. In the Criminal Code of Turkmenistan, the

alcohol intoxication is taken into account in a special

norm "Driving while drunk". The Criminal Code of

the Republic of Belarus establishes responsibility for

driving a vehicle in a state of intoxication, and

recognizes the repeated commission of this crime by

a qualified staff. In general, it should be pointed out

that most laws use the sign of alcohol when

constructing traffic offenses.

The norm of the Criminal Code of the Republic of

Moldova is quite interesting, where the legislator

made an attempt to describe the states of mild and

severe alcohol intoxication through the fixation of the

concentration of alcohol in blood, as well as the

concentration of alcohol vapors in the exhaled air. It

should be noted that in the Criminal Code of the

Republic of Moldova the state of severe alcoholic

intoxication is a design feature of the crime. “Driving

in a state of severe alcoholic intoxication or in a state

of intoxication caused by other substances”, driving

in a state of mild intoxication does not entail criminal

liability. In our opinion, the legislator wanted in this

way to differentiate responsibility according to the

degree of intoxication, while dividing the public

danger of mild and severe degrees. At the same time,

researchers (Ballin, 1986) discuss on a direct relation

between an increase in the concentration of alcohol in

the blood of drivers and an increased risk of a car

accident, and this confirms the correctness of the

differentiation of criminal liability.

If we talk about drunkenness during the operation

of vehicles, then there are studies in which it is

unambiguously indicated that the changes in the

driver's body deprive him of the opportunity to drive

a motor vehicle efficiently with a high alcohol

concentration in the blood above 0.5% (more than

0.21 mg/l in exhaled air) (Komarikova, 2020).

We believe it is reasonable to criminalize the

driving a motor vehicle in a state of intoxication. In

this case, there is no need to wait for the consequences

in the form of harm to human health and a possible

more serious crime will be prevented.

It should be recognized that the legislator

criminalizes the most typical forms of behavior and

determines where alcohol intoxication will be a

design feature of a main corpus delicti, and where it

will be a qualifying feature.

3.2 The State of Alcohol Intoxication Is

a Qualifying Feature of a Specific

Corpus Delicti

The responsibility is getting more severe, but alcohol

intoxication itself is not the only reason entailing

criminal liability. In this case, intoxication can be part

of the causal complex or can be a contributing factor.

Thus, the Criminal Code of the Republic of

Belarus, the Criminal Code of the Republic of

Moldova, the Criminal Code of the Russian

Federation and a number of other codes fix the state

of alcohol intoxication as a qualifying feature of

transport crimes and only transport crimes. However,

the regulation of the state of alcohol intoxication only

in motor transport crimes, in our opinion, is

insufficient.

Such regulation is applicable to crimes related to

the performance of certain work, the handling of

sources of increased danger, etc. The

symptomatology of alcohol intoxication determines

the undesirability and (or) the impossibility of a

person's participation in the process where

concentration of attention, quick reaction, etc. is

necessary.

Modern studies illustrate the detrimental effect of

acute alcohol intoxication on the spatial distribution

of visual attention (Do Canto-Pereira, De PA David.,

Machado-Pinheiro, Ranvaud, 2007.), its effect on the

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deterioration of control of body movements (Modig,

Fransson, Magnusson, Patel, 2012).

With regard to this part of the study, it is pertinent

to say that intoxication, in particular alcohol

intoxication, is associated with a sufficient number of

crimes. Thus, any kind of "touching" a weapon by

persons under the influence of alcohol is objectively

dangerous. Nevertheless, none of the criminal codes

of the CIS countries contains such a qualifying

feature for weapons-related crimes. While regulating

the carrying and use of firearms by severely

intoxicated persons can provide public health

opportunities to reduce gun-related injuries (Carr,

Porat, Wiebe, Branas 2010).

It will be fair to note that the legislator of each

state transforms the criminal law in accordance with

public demand and it is possible that there is no need

to attribute alcohol intoxication as a feature (deisgn

or qualifying) to crimes related to weapons or

violation of safety measures. The legislators of the

CIS countries still provide for the possibility of legal

consideration of this circumstance.

3.3 The State of Alcohol Intoxication Is

an Aggravating or Mitigating

Feature

The state of intoxication is circumstance aggravating

responsibility. In this context, alcohol intoxication

can be considered as a contributing factor.

A number of criminal laws of the CIS countries

oblige the law enforcement officer to assess the

reasons, the degree of intoxication and its influence

on the commission of a crime when imposing

punishment (Criminal Code of the Republic of

Moldova, Criminal Code of Turkmenistan). We

believe that this approach to regulating the state of

intoxication is very rational. If we talk about the

Criminal Code of the Republic of Moldova, it is

important to note that the legislator classifies the state

of intoxication as both aggravating and mitigating

circumstances. It can be concluded that such an order

is reasonable and directs the law enforcement officer

to a comprehensive consideration of the case.

In contrast, one can put the position of the

legislation of Turkmenistan, which did not attribute

the state of intoxication to either aggravating or

mitigating circumstances. In turn, the list of

mitigating circumstances is open and the court can

recognize as such any circumstance, but the list of

aggravating circumstances is closed and, accordingly,

the court cannot legally use this circumstance to

justify the appointment of a more severe punishment.

In the criminal legislation of the CIS countries, the

regulation of the state of alcohol intoxication as an

aggravating circumstance is quite common; this

approach is used in the Criminal Codes of the Russian

Federation, the Republic of Armenia, the Republic of

Belarus, and the Kyrgyz Republic and in a number of

other codes. Often, legislation does not oblige to

always recognize the fact of intoxication as an

aggravating one.

For example, in the Criminal Code of the Russian

Federation, "the court, depending on the nature and

degree of social danger of the crime, the

circumstances of its commission and the personality

of the perpetrator, may recognize the commission of

a crime in a state of intoxication as an aggravating

circumstance." And in the Criminal Code of the

Republic of Tajikistan, "the court has the right,

depending on the nature of the crime, not to recognize

the commission of a crime under the influence of

alcohol as an aggravating circumstance." The two

above legal positions seem identical at first glance,

but we believe that in the Russian Federation the court

must argue for the recognition of the state of

intoxication as an aggravating one, but in the

Republic of Tajikistan the court must argue for the

non-recognition of the state of intoxication as an

aggravating one.

In any case, we have a positive attitude to the

regulation of alcohol intoxication as an aggravating

circumstance; however, we want to note that in no

code is it described in which crimes (form of guilt,

category and other characteristics of crimes) it can be

recognized as such. It is absolutely obvious that the

legislator cannot stipulate every life situation at the

level of the criminal code, but guidelines are

nevertheless necessary. Analyzing the literature on

intoxication in criminal law (Ghossoub, Khoury,

2018; Quilter, 2017; Quilter, McNamara, Seear,

Room, 2016; Sukhee, 2017), we can conclude that

only a doctrine at the level of narrowly focused

research can develop such reference points.

Alcohol-related crime is associated with

numerous social crimes, such as anti-social behavior

disturbing public order, vandalism, robbery, rape, and

murder (Graham, Parkes, McAuley, Doi, 2013).

This position is completely justified; some crimes

are most often committed in a state of intoxication.

When drinking alcohol, self-control is weakened,

there are changes in the perception of the surrounding

reality, which can lead to behavior that is immoral,

illegal or criminal in a particular society. For

example, research confirms that drunkenness plays a

role in murder, rape, and burglary and robbery

(Felson, Staff, 2010). The destructive behavior of air

Criminal Legal Means of Counteracting Crimes Committed under the Inﬂuence of Alcohol: A Comparative Legal Study of the Legislation

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passengers in recent years has been very actively

discussed in the media and science (Chuchaev,

Gracheva, Malikov, 2020), and this behavior is often

caused by alcohol intoxication.

However, the mere presence of a person in a state

of intoxication cannot testify to the connection

between such a state and the fact of a committed

crime. Not all alcohol use leads to violence, and not

all violence is alcohol-related (Graham, Parkes,

McAuley, Doi 2013).

The connection between drunkenness and violent

crime is not so simple, and its development is

influenced by many factors, in particular: situational

factors, the factor of initiating a conflict with the

victim, and others (Deehan, 1999). This position is

completely justified; accounting for the state of

intoxication should be carried out very carefully. So,

if the victim is the initiator of the conflict or the

conflict is caused by her immoral or illegal behavior,

how can the use of an aggravating circumstance be

argued? We believe that each situation is individual,

and only on the basis of some circumstances can one

come to a conclusion about the connection between

alcohol and crime. For example, a violent crime was

committed without a pretext or associated with

hooligan actions, systematic illegal behavior that

manifested itself only under the influence of alcohol,

etc.

It should be noted that when regulating

intoxication as an aggravating circumstance, it is

important to take into account the limited universality

of its application. So, some crimes can only be found

in relation to coexistence with intoxication. For

example, taking a bribe by an intoxicated person.

The state of intoxication can also be recognized as

a mitigating circumstance. The Criminal Code of the

Republic of Moldova recognizes as a mitigating

circumstance “the commission of a crime by a person

in a state of intoxication caused by involuntary or

forced consumption of substances or the consumption

of such substances without realizing their

consequences”.

It should be pointed out that the recognition of

intoxication as a mitigating circumstance or a

circumstance due to which the punishment is reduced

is very controversial in science. (손지선, 2018; 보해

니안, 2016.). We believe that in the case of

involuntary use of substances that cause intoxication,

intoxication can be recognized as a mitigating

circumstance. However, in the case of consumption

of substances without awareness of their

consequences, it cannot be considered mitigating. A

person, consuming both alcohol and drugs, cannot

predict his exact state, and causes a state of

intoxication without always guessing what may

happen, and therefore he should be fully responsible

in cases of voluntary intoxication. In general, we

believe that there is no point in describing

drunkenness as a mitigating circumstance. The list of

mitigating circumstances is open, and therefore, the

court may, in exceptional cases, recognize

intoxication as mitigating.

4 CONCLUSIONS

The criminal legislation of all CIS countries contains

criminal-legal means of counteracting crimes

committed under the influence of alcohol, and they

can be regulated in three legislative structures: 1. state

of intoxication is a design feature of the main corpus

delicti; 2. the state of intoxication is a qualifying

feature of a specific corpus delicti; 3. state of

intoxication is a feature that aggravates or mitigates

responsibility.

In the criminal codes of the Russian Federation,

Turkmenistan and other countries, the state of

intoxication is a design feature of a crime. As a rule,

this refers to driving under the influence of alcohol.

In the Criminal Code of the Republic of Moldova,

responsibility for driving under the influence of

alcohol is differentiated depending on the degree of

intoxication. We believe that this can be recognized

as a positive experience.

Alcohol intoxication as a design feature of corpus

delicti is contained in most of the criminal laws of the

CIS countries and refers to transport crimes. But not

a single code describes drunkenness as a qualifying

feature for other crimes, either related to weapons or

other sources of increased danger (except for

transport).

The state of intoxication as an aggravating

circumstance is enshrined in most codes of the CIS

countries, and the legislation grants the court the right

to recognize the intoxication as an aggravating

circumstance or not. However, the rules governing

this right are described in two variations: it is

necessary to argue for the recognition of aggravated

intoxication (Russian Federation); it is necessary to

argue for non-recognition of aggravated intoxication

(Republic of Tajikistan).

In the legislation of the CIS countries, one can

find a legal position on the recognition of the state of

intoxication as a mitigating circumstance, however,

only in one code - the Republic of Moldova. The

involuntary, forced use of substances that cause

intoxication, or the consumption of such substances

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without realizing their consequences is considered

mitigating. Although this position, in our opinion, is

generally controversial, however, we believe that

there are social and cultural grounds for this.

Active counteraction to crimes, often committed

in a state of intoxication, can lower the crime rate in

general, and not by simply reducing “drunken crime”,

but through a special legal status of intoxication in

criminal law - this will allow the population to form a

sense of responsibility for their behavior.

All the conclusions presented in this work can

generally refer to the state of intoxication caused by

various reasons (drugs, psychotropic substances, and

so on).

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