Comment to article 31. Forms of complicity in a crime The Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. A crime is considered to have been committed by a group of persons if two or more perpetrators jointly participated in its commission without prior agreement.      

2. A crime shall be deemed to have been committed by a group of persons by prior agreement if it involved persons who had previously agreed to commit a crime together.      

3. 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.      

4. A crime is recognized as committed by a criminal community (criminal organization) if it is committed by a cohesive organized group (organization) created to commit grave or especially grave crimes, or by an association of organized groups created for the same purposes.      

5. A person who created or led an organized group or criminal community (criminal organization) shall be subject to criminal liability for their organization and leadership in the cases provided for in the relevant articles of the Special Part of this Code, as well as for all crimes committed by an organized group or criminal community (criminal organization), if they were covered by his intent. Other members of an organized group or criminal community (criminal organization) are criminally liable for participating in them in the cases provided for in the relevant articles of the Special Part of this Code, as well as for crimes in the preparation or commission of which they participated.      

6. The creation of an organized group in cases not provided for in articles of the Special Part of this Code shall entail criminal liability for preparing for the crimes for which it was created.      

In article 31 of the Criminal Code, the legislator uses the presence or absence of a prior agreement between the accomplices as a criterion for dividing complicity in a crime into forms. It provides for four forms of complicity: a) a group of persons; b) a group of persons by prior agreement; c) an organized group; d) a criminal community (criminal organization). Each of these forms is characterized by its own characteristics.      

In accordance with Part 1 of Article 31 of the Criminal Code, a crime is recognized as committed by a group of persons if two or more perpetrators jointly participated in its commission without prior agreement. This form of complicity has received several names in the theory of criminal law: a simple form of complicity, complicity, and complicity. Each of the names reflects one or another facet that makes up the essence of this form of complicity. All accomplices in this form of complicity perform at least a certain part of the objective side of the act, which they jointly carry out. Thus, in the case of a group commission of a crime, there is no prior distribution of roles between the persons involved in the case, and in this sense, this complicity is recognized as simple.      

When co-executing a crime, the persons involved must necessarily perform the objective side of the act (part of it or the full extent), that is, they must be co-executors. The degree of participation of each of the co-executors in the fulfillment of the objective side is different, since the crime is committed jointly. For example, in the case of theft involving illegal entry into residential, office, industrial premises or storage (paragraph "b" of part 2 of Article 175 of the Criminal Code), one perpetrator breaks down the front door, and the second, having penetrated inside, takes out someone else's property. This form of complicity is sometimes called complicity. At the same time, it is not uncommon for one participant in a group crime to commit an act that contains all the elements of a crime, while others commit actions that contain only part of the signs of the objective side. For example, in a murder, one subject overcomes the victim's resistance, and the other strikes him. The Plenum of the Supreme Court of the Republic of Kazakhstan in its resolution "On the application by courts of legislation regulating liability for attacks on the life and health of citizens" dated December 23, 1994 (with the following amendments He notes that "when committing a murder by several persons, the courts must determine the degree of participation in the crime of each of the accomplices."      

Thus, a group of persons as a form of complicity is characterized by the following signs: the presence of two or more co-perpetrators, that is, the joint execution of the objective side of the act by two or more persons; an almost equal degree of participation of each of them in the commission of a crime; the absence of prior collusion, that is, before the commission of the crime, these persons did not conspire together to commit a crime.       Part 2 of art . 31 of the Criminal Code defines that a crime is recognized as committed by a group of persons by prior agreement if it involved persons who had previously agreed to commit a crime together.      

A group of persons by prior agreement differs from a group of persons by an additional indicator of danger (the presence of prior agreement). This form of joint commission of a crime is characterized by a peculiar combination of criteria, when, in order to achieve a result, participants assume certain roles to create conditions for the direct infringement of socially significant interests of the victim. The character of the participants' mental attitude to what they have done also gives individual certainty to the analyzed form. They are all usually aware that they are committing the same crime. When comparing the crimes committed by the above-mentioned forms of complicity, there is a clear tendency to increase the danger of a crime committed by a group of persons by prior agreement. For example, when comparing rape committed by persons who agreed in advance to commit it and rape without collusion by a group of people, it is clear that, all other things being equal, the first form of complicity is characterized by a greater degree of public danger. The danger increases due to the fact that the encroachment is carried out by direct influence on the victim through the combined efforts of several persons. Such an impact practically negates the victim's ability to resist and preserve her interests intact. It usually entails more serious consequences, and therefore affects the object of protection more deeply.      

According to paragraph 5 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application by courts of legislation on liability for banditry and other crimes committed in complicity" dated June 21, 2001, the preliminary conspiracy of a group of persons to commit crimes should be understood as an agreement between two or more persons to commit a specific crime before they commit actions that form an objective the side of the crime.      

The legislator uses the concept of "participation" in relation to accomplices; the concept of "commission" refers to the perpetrator, since in complicity only he performs actions that form the objective side of the crime that is carried out in complicity. According to Part 2 of Article 31 of the Criminal Code, persons who have agreed in advance to commit it together are involved in the crime. We believe that if the presence of one perpetrator is considered sufficient for a group of persons by prior agreement, then its legislative wording would look like this: "a crime is recognized as committed by a group of persons by prior agreement if it is committed by persons who have agreed in advance to jointly participate in it."      

In Part 2 of Article 31 of the Criminal Code, the legislator focuses on the fact that the perpetrators agree in advance to commit a crime together. This means that at least two people must combine their efforts in order to fulfill the objective side of the crime, i.e. they are essentially the perpetrators of the crime.      

In cases where some participants in a crime commit a crime by prior agreement and other persons join them by prior agreement before the completion of the objective side, the actions of both should be qualified as the commission of a crime by a group of persons by prior agreement.      

The existence of a preliminary agreement presupposes the distribution of roles. The fulfillment by each of the accomplices of the role assigned to him in advance determines the achievement of the result that all the accomplices strive for. The actions of the perpetrator always contain signs of a crime provided for in a specific article of the Special Part of the Criminal Code.      

In paragraph 15 of the resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan "On the observance by courts of legality in the imposition of criminal punishment" dated April 30, 1999, it was clarified that committing a crime in a group of persons, in a group of persons by prior agreement, entails a more severe punishment, therefore, courts should correctly determine the form of complicity and accomplices of the crime. In accordance with parts 1 and 2 of art. 31 of the Criminal Code, the qualification of a crime and the imposition of punishment under the article (part of the article) The special part of the Criminal Code, which provides for the commission of a crime by a group of persons or a group of persons by prior agreement, as a qualifying feature, is possible only in cases where 2 or more persons participated in the commission of the crime, who, in accordance with Part 2 of Article 28 of the Criminal Code, are recognized as co-perpetrators.      

The actions of the organizer, instigator and accomplice do not contain signs of a specific crime, since their participation forms only an auxiliary role in the execution of the conditioned crime by the perpetrator. When qualifying the actions of the organizer, instigator and accomplice, in addition to the article of the Special Part of the Criminal Code, which defines the punishability of their actions, a reference to the relevant part of art. 28 of the Criminal Code is necessary.      

The signs of a group of persons by prior agreement are the presence of: 1) the participation of two or more persons in it; 2) a preliminary conspiracy between accomplices, that is, before committing a crime, they agree in advance to commit it together.       The basis of this form of complicity is an agreement on joint criminal activity before the commission of the crime. A preliminary agreement takes place until the beginning of the execution of the objective side of the corpus delicti. The conspiracy itself can be different in nature, as comprehensive, covering all aspects of the crime being committed, as well as relating to individual aspects of the planned encroachment, concealment of traces of the crime, and so on. It is important to note that the very fact of a preliminary agreement on the commission of a crime significantly increases the public danger of a crime.      

A group of persons by prior agreement differs from organized forms of criminal activity by a lower degree of co-organization and cohesion. According to Part 3 of Article 31 of the Criminal Code, 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.      

This provision is directly reflected in the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On judicial Practice in cases of Embezzlement" dated July 11, 2003 (as amended and supplemented), which clarifies that 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.      

Paragraph 6 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of application by courts of legislation on liability for banditry and other crimes committed in complicity" dated June 21, 2001 clarifies that "an organized group in accordance with Part 3 of Article 31 of the Criminal Code should be understood not only as an organized criminal group responsible for the creation of which It is provided for in Part 1 of Article 235 of the Criminal Code, but also a stable armed group (gang), the responsibility for the creation of which is provided for in part 1 of Article 237 of the Criminal Code.      

In the aforementioned resolution, the Supreme Court of the Republic of Kazakhstan clarifies that a "gang" differs from an "organized criminal group" by being armed and having a criminal purpose - attacking citizens and organizations."      

In the legislative definition of an organized group, two features are distinguished. This is, firstly, the presence of a group of people who have previously united to commit one or more crimes; secondly, the stability of such a group.       The organization and stability of a criminal group can be evidenced, in particular, by such signs as the stability of its composition and organized structures, the cohesion of its members, subordination to group discipline and the instructions of the organizer and leader, the consistency of forms and methods of criminal activity, planning and careful preparation of crimes, the distribution of roles between accomplices, the development of a criminal plan, ensuring in advance measures to conceal a crime and sell property obtained as a result of criminal activity, etc.      

This provision was also directly consolidated in paragraph 11 of the above-mentioned Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated June 21, 2001, which, in particular, noted: "the stability of an organized criminal group and gang can be evidenced by such signs as the stability of its composition, the close relationship between its members, the consistency of their actions, the constancy of forms and methods of criminal activity, the duration of its existence. An organized criminal group and a gang can also be created to commit a single crime that requires careful preparation."      

The main features of an organized group that distinguish it from a group of people who have committed a crime by prior agreement are its organization and stability. "The main distinguishing feature of an organized group is its preliminary organization for the commission of several crimes - in this case, preliminary collusion is only a necessary qualitative element of an organized group, which, under certain conditions, transforms into preliminary organization."      

Organization includes: preparation by two or more persons of a plan for committing a crime, preliminary allocation of roles, adaptation of means or removal of possible obstacles, preliminary preparation of conditions for concealment and sale of stolen goods, traces of the crime or the criminals themselves. The existence of an organized group is inconceivable without an organizer. He is the most socially dangerous figure among the accomplices, as he "conducts" their actions. The functions of the organizer are multifaceted. He keeps clandestine records, distributes proceeds from criminal activities, trains and mentors members of such a group, and settles conflicts. His main role is to rally the members of the group and manage criminal activity.       The signs of an organized group are:      

the presence of an organizer whose intent covers crimes committed by a criminal group;      

coordinated distribution of roles between members of an organized group; preliminary planning of a crime and communicating the plan to all members of the group, the sustainability of this group; joint preparatory activities, their organized nature;      

the unity of criminal intentions, the common purpose of committing one or more crimes.      

When an organized group commits a specific crime, these signs are evaluated together.       The most dangerous form of complicity is a criminal community (criminal organization). A crime is recognized as committed by a criminal community (criminal organization) if it is committed by a cohesive organized group (organization) created to commit grave or especially grave crimes, or by an association of organized groups created for the same purposes.       The legislator provides for two types of criminal community: 1) a cohesive organized group (organization) created to commit grave or especially grave crimes; 2) an association of organized groups created for the same purposes.      

The cohesion of a group means not only the stability of its composition, the presence of a leader(s) to whom all other participants are subordinate, but also a long-term constant connection between the participants, mutual support for each other, interchangeability, mutual assistance. Cohesion means a high degree of organization, compliance with all the rules of conduct established in a criminal organization. A cohesive organized group is recognized as a criminal community only if the purpose of the association is to commit serious or especially serious crimes.      

A criminal community can manifest itself in a stable structural association of several organized groups. The essence of such an association lies not only in a clear distribution of the functions and roles of their members, but also, mainly, in the presence of a complex, definite system of interrelations between the internal structural formations of such a community.      

In accordance with Part 4 of Article 31 of the Criminal Code, a criminal community differs from an organized criminal group and gang on the basis of cohesion and the purpose of its creation is to commit serious and especially serious crimes. A criminal community, as a rule, has a higher degree of organization and consists of separate criminal associations or organized criminal groups.      

An important characteristic of a criminal community is its creation to engage in criminal activity. Paragraph 12 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application by courts of legislation on liability for banditry and other crimes committed in complicity" dated June 21, 2001 clarifies that "the creation of a criminal community should be understood as the commission of any active targeted actions that resulted in the actual formation of these organized groups or criminal community.". These actions can be expressed in the search for participants, weapons, ammunition, communications equipment, documents, vehicles and other material assets, the development of structures and criminal plans, and the recruitment of people." The creation of a criminal community is a complete crime, regardless of whether any crimes have been committed.      

The criminal community has distinctive features that consist in the stability of criminal ties of jointly acting persons. At the same time, "sustainability" depends on the intensity and scale of the criminal community's activities. Sustainability begins where a community has developed individual forms and methods of activity as a result of committing crimes over a long period of time. Under certain conditions, an organized criminal group develops into a criminal community. Moreover, an organized group is a necessary and logical qualitative stage in the process of formation and development of a criminal community. Therefore, all its qualitative characteristics are included in the concept of a criminal community.       A person who created or led an organized group or criminal community (criminal organization) is subject to criminal liability for their organization and leadership in the cases provided for in the relevant articles of the Special Part of this Code, as well as for all crimes committed by an organized group or criminal community (criminal organization), if they were covered by his intent. Other members of an organized group or criminal community (criminal organization) are criminally liable for participating in them in cases provided for in the relevant articles of the Special Part of this Code, as well as for crimes in the preparation or commission of which they participated (Part 5 of art.31 of the Criminal Code).      

Any member of a stable criminal organization must be responsible for the totality of its crimes. This position is justified by the fact that the leader of a criminal community must be aware of, approve and accept the tasks, goals and methods of criminal activity of this organization. In this sense, the activities of criminal communities in their diversity can cover almost all types of crimes provided for in the Special Part of the Criminal Code of the Republic of Kazakhstan.      

The creation of an organized group in cases not provided for in articles of the Special Part of this Code entails criminal liability for preparing for the crimes for which it was created (Part 6 of Article 31 of the Criminal Code).

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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