Comment to Article 341. Threat or violent actions in connection with the administration of justice or the conduct of a preliminary investigation of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Threat of murder, injury to health, damage or destruction of property against a judge, as well as his relatives in connection with the consideration of cases or materials in court —      

is punishable by a fine in the amount of five hundred to seven hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of five to seven months or by imprisonment for a term of up to three years.    

2. The same act committed against a prosecutor, investigator, person conducting an inquiry, defense lawyer, expert, bailiff, bailiff, as well as their relatives in connection with the conduct of a preliminary investigation, consideration of the case or materials in court or the execution of a sentence, court decision or other judicial act, —    

is punishable by a fine in the amount of two hundred to five hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of two to five months, or by arrest for a term of three to six months, or by imprisonment for a term of up to two years.   

  3. The acts provided for in the first or second parts of this Article, committed with the use of violence that is not dangerous to life or health, —    

 are punishable by imprisonment for a term of up to five years.   

 4. The acts provided for in the first or second parts of this Article, committed with the use of violence dangerous to life or health, —      

are punishable by imprisonment for a term of five to ten years.

     The public danger of this crime lies in the fact that when it is committed, the perpetrator has a negative impact on the course of the preliminary investigation and trial, which prevents the adoption of an objective, lawful decision on a criminal, civil or administrative case, when considering other materials in court, as well as the execution of the sentence.   

  The object of the crime is the normal activities of the preliminary investigation bodies, the court and the prosecutor's office. Since the crime is a two-object, an additional object is the health, as well as the property of persons conducting a preliminary investigation, a prosecutor, a judge, a juror, or participants in a criminal, civil, or administrative case, as well as persons executing a sentence, decision, or other judicial act.   

  The victims may be a judge, a juror, a prosecutor, an investigator, a person conducting an inquiry, a defense lawyer, an expert, a bailiff, a bailiff, or relatives of the listed persons. It should be noted, however, that the legislator did not provide for liability under the article of the Criminal Code in question for threatening persons who assist in the performance of justice tasks, which include witnesses, victims, experts, specialists, and translators.     

 The objective side is expressed in the threat of murder, injury to health, destruction or damage to the victim's property in connection with the conduct of a preliminary investigation, consideration of the case or materials in court, or the execution of a sentence, court decision or other judicial act. The crime in question, in its objective aspect, is the use of mental violence against persons specified in parts 1 and 2 of Article 341 of the Criminal Code, and can be expressed in various ways: verbally, in writing, using means of communication.    

  The threat may be expressed directly to the victim or addressed to him through third parties. The concreteness of the threat means that the perpetrator expresses an intention to kill, harm, or destroy the victim's property. Moreover, such a threat must be real and valid. The behavior of the perpetrator, the means and tools used by him, and the situation in which the crime was committed should indicate the real intention of the perpetrator to immediately implement his threat if the victim does not comply with his demand. Such a threat can have the necessary effect on the victim's psyche, can force him to change the nature of his activities, prevent him from fulfilling his official duty. It puts the victim in a state similar to extreme necessity. In addition, it itself has a negative impact on the victim, his psyche, can to some extent paralyze his will, reduce his ability to take action.  

   A threat to commit other actions (for example, a threat to spread information that shames the victim) does not constitute a crime in question. If there are necessary signs, such actions may be considered as obstruction of justice and preliminary investigation, or as incitement to commit crimes under Articles 344, 345, 346, 348, 350 of the Criminal Code.   

   The reality of the threat means that the victim must perceive it not as an empty declaration, but as a real intention to implement it. When assessing the reality of the threat expressed by the perpetrator, it is necessary to take into account both the subjective factor (perception of the threat by the victim) and the objective circumstances characterizing the intention, as well as the identity of the perpetrator.   

  A crime, the responsibility for which is provided for in Article 341 of the Criminal Code, will take place only when a threat has been used in connection with the consideration of the case or materials in court or in connection with the conduct of a preliminary investigation, the execution of a sentence, decision or other judicial act. If the threat to these persons is applied for other reasons, for example, on the basis of personal hostility, then liability under this article of the Criminal Code is excluded.   

  The type of crime in question contains a formal composition and is considered completed from the moment the threat is uttered, regardless of whether it was subsequently implemented or whether the perpetrator achieved his goal. It also doesn't matter if the perpetrator intended to carry out his threat in the future.   

  On the subjective side, this crime is characterized by direct intent. The perpetrator is aware that he is threatening to kill, harm health, and destroy property to the above-mentioned victims in connection with the exercise of their official functions, and wishes to exert mental influence on them in order to persuade or force them to commit illegal acts.    

  Under the current version of Article 341 of the Criminal Code, the composition of the crime in question in the actions of the perpetrator will also occur if the purpose of the threat used by him is to induce him to perform legitimate actions (for example, the requirement to take into custody a dangerous criminal who, if there is evidence of his guilt, continues to be at large, or to pass a fair, legally appropriate sentence). which cannot be considered correct. In our opinion, article 341 of the Criminal Code should be designed in such a way that it provides for liability for threats in order to force persons on whose actions the administration of justice depends to commit an illegal act.   

   Threatening the persons mentioned in Article 341 of the Criminal Code in order to force them not to violate the rule of law does not counteract justice, but on the contrary, promotes the administration of justice, therefore such an act should not entail responsibility under Article 341 of the Criminal Code. This article of the Criminal Code provides for liability for threats of a non-arbitrary nature, expressed to the address specified in the disposition of art. 341 of the Criminal Code of persons in connection with the conduct of a preliminary investigation, the consideration of cases and materials in court or the execution of a sentence, materials or other judicial act, but only for threatening to obstruct the legitimate activities of these persons, or out of revenge for such activities.    

The subject of the crime may be a sane individual who has reached the age of 16.  

   The article in question of the Criminal Code is divided into parts one and two, depending on who the threat is applied to. If it applies to a judge, juror, or their relatives, Part one applies, if it applies to a prosecutor, investigator, person conducting an inquiry, defense attorney, expert, bailiff, bailiff, and their relatives – part two.   

  Part three of this article of the Criminal Code is applied when physical (not mental) violence by its nature is not dangerous to the life or health of the victim. This conclusion can be reached due to the fact that the title of Article 341 of the Criminal Code states that responsibility under this article of the Criminal Code comes not only for threats, but also for violent acts. Parts One and Two provide for liability for threatening to kill, harm to health, destruction or damage to the victim's property in connection with the conduct of a preliminary investigation, consideration of the case or materials in court, or the execution of a sentence, court decision or other judicial act.   

The article in question of the Criminal Code is divided into parts one and two, depending on who the threat is applied to. If it applies to a judge, juror, or their relatives, Part one applies, if it applies to a prosecutor, investigator, person conducting an inquiry, defense attorney, expert, bailiff, bailiff, and their relatives – part two.   

  Part three of this article of the Criminal Code is applied when physical (not mental) violence by its nature is not dangerous to the life or health of the victim. This conclusion can be reached due to the fact that the title of Article 341 of the Criminal Code states that responsibility under this article of the Criminal Code comes not only for threats, but also for violent acts. Parts One and Two provide for liability for threatening to kill, harm to health, destruction or damage to the victim's property in connection with the conduct of a preliminary investigation, consideration of the case or materials in court, or the execution of a sentence, court decision or other judicial act.   

  The issue of which physical violence is considered not dangerous to life or health in relation to crimes against property is clarified in the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 "On judicial practice in cases of embezzlement". In particular, in paragraph 23 of the said resolution states that violence that is not dangerous to life and health should be understood as beatings or other violent acts related to inflicting physical pain on the victim, which did not cause a short-term health disorder or minor permanent loss of general ability to work. Other violent acts in this case are those actions that, although not related to causing pain, violating the integrity of tissues or disrupting the normal functioning of human organs, were aimed at restricting the physical freedom of the victim. For example, in cases of abduction, locking the victim in a room, unlawful deprivation of his liberty, etc.    

 Part Four applies when violence is inherently dangerous to the life or health of the victim. To the question of which physical violence is considered dangerous to life or health in relation to crimes against property, the answer is contained in the above-mentioned normative resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 "On judicial practice in cases of embezzlement." In particular, in paragraph 23 of this resolution states that violence dangerous to life and health should be understood as violence that has caused serious or moderate harm to the victim's health, as well as minor harm to health that has caused short-term health problems or minor permanent loss of general ability to work, which are established by expert means.     

 Not only physical, but also mental violence is considered dangerous to the life or health of the victim. For example, when they threaten to kill or cause harm to health, while showing weapons or other objects with which they can cause death or serious harm to health. In such cases, the threat may be qualified under Part 4 of Article 341 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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