Comment to Article 234. Hostage-taking of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. The capture or holding of a person as a hostage, committed in order to compel the state, organizations or a citizen to commit any action or refrain from committing any action as a condition for the release of a hostage –      

are punishable by imprisonment for a term of three to eight years.    

2. The same acts committed:    

a) a group of persons by prior agreement;   

  b) repeatedly;      

c) with the use of violence dangerous to life or health;      

d) using weapons or objects used as weapons;      

e) in relation to a known minor;    

f) in relation to women who are obviously pregnant for the perpetrator.;      

g) in relation to a person who is obviously in a helpless state;      

h) in relation to two or more persons;      

i) for selfish reasons or for hire –      

is punishable by imprisonment for a term of seven to twelve years.      

3. The acts provided for in Parts 1 or 2 of this Article, if they are committed by an organized group or have negligently caused the death of a person or other grave consequences. –      

is punishable by imprisonment for a term of 10 to 15 years.      

Note. A person who releases hostages voluntarily or at the request of the authorities is released from criminal liability if his actions do not contain elements of another crime.

     Hostage-taking is recognized as an international crime. The International Convention against Hostage-taking, adopted by the UN General Assembly on December 18, 1979, defines the main directions of countering this crime. The public danger of this crime is that it encroaches on the public safety, life, and health of often a significant number of people, as well as personal freedom and inviolability of a person.      

The object of this crime is public safety. An additional object is the life, health, freedom and bodily integrity of the hostage–taker.      

A victim (hostage) is an individual captured by the perpetrator, a citizen of the Republic of Kazakhstan, a foreigner or a stateless person, a hostage can be either one person or a group of persons.    

The objective side of this crime is expressed in the capture or holding of a person as a hostage, committed in order to compel the State, organizations or a citizen to commit any action or refrain from committing any action as a condition for the release of a hostage.     

 Hostage–taking is the taking of a person with the subsequent restriction of his freedom of movement. Capture can be carried out in any way secretly, openly, by deception, without violence, or with violence.    

Violence can be expressed in beatings, blows, tying up and other actions that do not pose a danger to life and health, threatening to kill or causing serious harm to health when taking a hostage or holding him. The threat is possible both at the moment of capture and after it. It is addressed to the victim or his relatives, state officials. The threat must be perceived as real.

A threat made to a captured person does not require independent qualification and is covered by Part 1 of Article 234 of the Criminal Code of the Republic of Kazakhstan. Premeditated murder of a hostage or intentional infliction of harm to his health is qualified by a combination of crimes: Articles 234 and Articles 96, 103, 104, 105 of the Criminal Code of the Republic of Kazakhstan.    

Hostage-taking should be understood as forcibly preventing a hostage from being released.     

The requirement as a condition for the release of a hostage, presented by the guilty to the state, organization, or citizen, can be both property-based (money, transport) and non-property-based (release from office, imprisonment, termination of criminal prosecution, travel outside the state).     

This crime is considered completed from the moment of the actual deprivation of liberty of the hostage or holding him hostage, regardless of the duration.    

The subjective side of this crime is characterized by an intentional form of guilt in the form of direct intent. The person is aware that he is taking the person hostage or holding him in this capacity, and wants this result to occur.     

An obligatory sign of the subjective side in this composition is the special goal that the perpetrators set for themselves. It consists in forcing the State, organizations, and individual citizens to commit any actions or refrain from committing any actions as conditions for the release of a hostage.   

   The subject of the crime is a person who has reached the age of 14.    

 Part 2 of Article 234 of the Criminal Code of the Republic of Kazakhstan provides for qualified types of this crime:      

a) a group of persons by prior agreement;     

b) repeatedly;      

c) with the use of violence dangerous to life or health;      

d) using weapons or objects used as weapons;      

e) in relation to a known minor;      

f) in relation to women who are obviously pregnant for the perpetrator.;     

g) in relation to a person who is obviously in a helpless state;    

 h) in relation to two or more persons;      

i) for selfish reasons or for hire.      

Hostage-taking is considered to have been committed by a group of persons by prior agreement if there was a prior agreement between the accomplices of this crime prior to the hostage-taking.   

  Hostage-taking committed by a person who had previously committed hostage-taking is considered repeated if the person has not been released from criminal liability in accordance with the procedure established by law for the previous seizure, or the criminal record for a crime previously committed by the person has not been expunged or withdrawn, or the statute of limitations for bringing such a crime to criminal responsibility has not expired.    

 The use of violence dangerous to life or health should be understood as violence that has caused minor, moderate, or serious harm to the victim's health.    

 The use of weapons is understood as their actual use to harm human life and health.     

 Other objects used as weapons may include any objects that can cause harm to human health. These include household items, such as an axe, scythes, pitchforks, knives, shovels, metal rods, pipes, sticks, etc.    

 Hostage-taking of a known minor, i.e. a person under the age of 18. A sign of knowingness means that a person who takes a minor hostage must be aware of his or her minor status.      

Hostage-taking of a woman who is obviously pregnant for the perpetrator (the duration of pregnancy does not matter). To qualify the actions of the perpetrator under this paragraph of Article 234 of the Criminal Code, it is mandatory that the perpetrator be aware of the victim's pregnancy. The awareness of the perpetrator may be based on the victim's external data, or her message, or on the basis of familiarization with medical documents. The actions of a person who did not know about the state of pregnancy should be qualified under Part 1 of Article 234 of the Criminal Code of the Republic of Kazakhstan.  

   Seizure in relation to a person who is obviously helpless for the perpetrator. Helplessness means that the victim, due to certain physiological or other reasons (young age, old age, illness, physical disabilities: blindness, deafness, lack of arms, legs, severe illnesses, etc.), is unable to effectively resist the offender. At the same time, the perpetrator must be aware of the helpless state of the hostage.    

 The hostage-taking of two or more persons should be characterized by criminal intent, the simultaneous commission of an encroachment on the capture of two or more victims. In cases where the capture of two or more hostages was carried out at different times and was not covered by a single intent, the act should be qualified as hostage-taking committed repeatedly.   

  Hostage-taking for selfish reasons or for hire is characterized by the fact that, by taking a hostage for selfish reasons, the perpetrator seeks to obtain material benefits for him (money, property, etc.), or to get rid of material costs (debt, payment for services, etc.)     

When taking a hostage for hire, the perpetrator commits these actions in the interests of third parties.     

Part 3 of Article 234 of the Criminal Code of the Republic of Kazakhstan provides for a specially qualified type of this composition, which establishes responsibility for acts provided for in parts 1 and 2 of Article 234 of the Criminal Code if they are committed by an organized group or negligently caused the death of a person or other grave consequences.   

  A crime is recognized as committed by an organized group if it is committed by a stable group of persons who have previously united to commit one or more crimes."    

 The legislator associates causing death by negligence during hostage-taking with a careless form of guilt. For example, when the victim, who was gagged, suffocated, died of a heart attack.   

  Other grave consequences should be understood as the serious illness of the victim or his relatives, causing major material damage, the occurrence of international complications, etc.    

Hostage-taking should be distinguished from kidnapping (Article 125 of the Criminal Code) and unlawful imprisonment (Article 126 of the Criminal Code). The difference between hostage-taking and kidnapping lies primarily in the object of the attack: public safety in hostage-taking, and individual freedom in kidnapping. By the nature of the actions: hostage-taking is open and audacious. Kidnapping often takes place secretly. If the perpetrators inform the media and official authorities about the fact of the abduction, then when a person is abducted, only the relatives of the abducted person, if they demand a ransom. Kidnapping is always associated with his movement from the place where he was to another place, and hostage-taking may consist in forcibly detaining a person in his place of residence (in an office building, his own apartment, etc.). Hostage-taking is always associated with the presentation of certain requirements to the state, organization or citizen; kidnapping can be committed without making any demands (for example: out of revenge, jealousy, a desire to eliminate a competitor, prevent a person from participating in an election campaign, etc.) With unlawful imprisonment, the perpetrator does not make any demands and does not move the person from one place to another. The purpose of the perpetrator is precisely to imprison the victim, usually for personal reasons (revenge, jealousy, etc.). The purpose of hostage-taking is to achieve satisfaction of their demands.     

The infliction of any harm (including deprivation of life) to persons who capture or hold hostages is lawful if it is committed in a state of necessary defense. Harm to third parties in the process of preventing the capture or release of a hostage should be considered based on the conditions of legality, extreme necessity and harm caused during the detention of a person who has committed a crime. Intentional infliction of death in the process of taking or holding a hostage forms a set of crimes – hostage-taking and murder (paragraph "b" of part 2 of Article 96 of the Criminal Code). Intentional destruction or damage to property during hostage-taking entails criminal liability under Articles 234 and 187 of the Criminal Code. Hostage-taking in order to escape from places of detention also constitutes a set of crimes provided for in Articles 234 and 358 of the Criminal Code.    

 The note to Article 234 of the Criminal Code defines the basis for exemption from criminal liability in case of hostage-taking. Such a ground is the voluntary release of a hostage or at the request of the authorities, if the actions of the perpetrator do not contain elements of another crime.

Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.                  

Date of amendment of the act:  08/02/2007 Date of adoption of the act:  08/02/2007 Place of acceptance:  NO Authority that adopted the act: 180000000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  167 Status of the act:  new Sphere of legal relations:  028000000000 Report form:  COMM Legal force:  1900 Language of the Act:  rus

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