Comment to article 6. The effect of the criminal law on persons who have committed a crime in the territory of the Republic of Kazakhstan The Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. A person who has committed a crime on the territory of the Republic of Kazakhstan is liable under this Code. 2. A crime committed on the territory of the Republic of Kazakhstan is an act that has begun or continued, or has been completed on the territory of the Republic of Kazakhstan. This Code also applies to crimes committed on the continental shelf and in the exclusive economic zone of the Republic of Kazakhstan.
3. A person who has committed a crime on a ship assigned to a port of the Republic of Kazakhstan and located in open waters or airspace outside the Republic of Kazakhstan is subject to criminal liability under this Code, unless otherwise provided by an international treaty of the Republic of Kazakhstan. Under this Code, criminal liability is also borne by a person who has committed a crime on a military ship or military aircraft of the Republic of Kazakhstan, regardless of its location.
4. The issue of criminal liability of diplomatic representatives of foreign States and other citizens who enjoy immunity in the event that these persons commit a crime on the territory of the Republic of Kazakhstan is resolved in accordance with the norms of international law.
The criminal law is always limited to a certain territory. The Criminal Code decides on the spatial limits of the criminal law on the basis of four interrelated principles: territorial, citizenship, universal and real. Some scientists believe that the operation of criminal law in space is based on five principles: territorial, citizenship, patronage (special regime), universal and real.
The main principle of operation of the criminal law in space is the territorial principle, expressed in art. 6 of the Criminal Code. The essence of the territorial principle of the operation of criminal law in space is that all persons who have committed a crime on the territory of the relevant State are liable under the laws of that State, regardless of whether they are citizens of that State, foreign citizens or stateless persons.
According to Part 1 of Article 6 of the Criminal Code, "a person who commits a crime on the territory of the Republic of Kazakhstan is liable under this Code." The principle of territoriality is based on the inviolability of Kazakhstan's sovereignty. According to paragraph 2 of Article 2 of the Constitution, "The sovereignty of the Republic extends to the entire territory. The State ensures the integrity, inviolability and inviolability of its territory." The territory of the Republic of Kazakhstan is established by its state border.
The operation of the criminal law within a certain territory is associated with the fulfillment of the protective and preventive tasks of the Criminal Code. In addition, the principles of criminal law are being implemented - legality, equality of all before the law and the court, and the inevitability of responsibility.
The territory of the Republic of Kazakhstan within the existing borders is integral, indivisible and inviolable. In accordance with Article 1 of the Law of the Republic of Kazakhstan "On the State Border of the Republic of Kazakhstan" dated January 13, 1993. The state border of the Republic of Kazakhstan should be understood as a line and a vertical surface running along it, defining the boundaries of the territory - land, waters, subsoil and airspace of Kazakhstan. The state border is determined by the international treaties of the Republic of Kazakhstan, ratified by the Parliament of the Republic of Kazakhstan.
According to Article 5 of the said law, the state border of the Republic of Kazakhstan, unless otherwise provided for by international treaties of the Republic of Kazakhstan, is established: on land - by characteristic points and relief lines or clearly visible landmarks; at sea - by the outer limit of the territorial sea of the Republic of Kazakhstan (the territorial sea includes coastal waters, the width of which is determined by international treaties of the Republic of Kazakhstan ratified by the Parliament of the Republic of Kazakhstan); on rivers (streams) - in their middle or in the middle of the main branch of the river; in other bodies of water - in a straight line connecting the exits of the State Border of the Republic of Kazakhstan to the shores of the reservoir; the state border of the Republic of Kazakhstan running along a river (stream) or other body of water will not mix either when the outline of their banks or the water level changes, or when the riverbed (stream) deviates in one direction or another. reservoirs of waterworks and other artificial reservoirs - in accordance with the State border of the Republic of Kazakhstan, which passed through the area before they were filled.;
on railway and highway embankments, dams and other structures passing through the border sections of rivers (streams)-in the middle of these structures or along their technological axis, regardless of the passage of the State Border of the Republic of Kazakhstan on the water.
The territorial sea of the Republic of Kazakhstan includes coastal waters, the width of which is determined by international treaties of the Republic of Kazakhstan, ratified by the Parliament of the Republic of Kazakhstan.
The internal waters of the Republic of Kazakhstan include: waters of the ports of the Republic of Kazakhstan, bounded by a line passing through the points of hydraulic engineering and other structures of ports furthest towards the sea; waters of rivers and other reservoirs, the shores of which belong to the Republic of Kazakhstan.
In the Caspian Sea, the water area related to inland waters is determined by the supreme bodies of the international treaties of the Republic of Kazakhstan, ratified by the Parliament of the Republic.
The criminal law also applies in cases of acts committed on the continental shelf and in the exclusive economic zone of the Republic of Kazakhstan (Part 2 of Article 6 of the Criminal Code).
The continental shelf consists of the seabed and subsurface of underwater areas extending beyond the territorial sea throughout the natural extension of its land territory to the outer boundary of the underwater margin of the mainland or to a distance of 200 nautical miles from the baselines from which the width of the territorial sea is measured, when the outer boundary of the underwater protection of the mainland does not extend to such a distance.
In cases where the underwater margin of the continental shelf of a coastal State extends for more than 200 nautical miles, the coastal State may assign the outer limit of its shelf beyond 200 nautical miles, taking into account the location and actual extent of the shelf, but in all circumstances, the outer limit of the continental shelf should be no further than 350 nautical miles from the baselines, from which measure the width of the territorial sea, or no further than 100 nautical miles from the 2,500-meter isobath. The subsurface is a part of the natural environment that can be used to meet economic and other needs, covering the space below the surface of land and water territories.
In accordance with the United Nations Convention on the Law of the Sea, an exclusive economic zone is an area located outside and adjacent to the territorial sea, up to 200 nautical miles wide from the baselines from which the width of the territorial sea is measured. A specific legal regime has been established in this area. The Convention granted the coastal State in the exclusive economic zone sovereign rights for the exploration and development of natural resources, both living and non-living, as well as rights in relation to other activities for the economic exploration and development of the zone, such as energy production, through the use of water, currents and wind.
It should be noted that in the exclusive economic zone, only acts involving the illegal creation of security zones, research and development of the zone's natural resources are punishable under the Criminal Code of the Republic of Kazakhstan. Therefore, if a crime against a person (murder, injury to health of varying severity) is committed on a foreign vessel outside the territorial waters in the exclusive economic zone, then the Criminal Code of the Republic of Kazakhstan does not apply here.
The boundary of the airspace is a vertical surface passing over land and water territories, including territorial waters.
Part 3 of Article 6 of the Criminal Code of the Republic of Kazakhstan regulates the procedure for liability for crimes committed on ships sailing or flying the flag of the Republic of Kazakhstan. If a crime is committed on a ship assigned to a port of the Republic of Kazakhstan and located in open water or airspace, liability is imposed under the Criminal Code of the Republic of Kazakhstan. Military aircraft and warships of the Republic of Kazakhstan are also always considered part of its territory, regardless of their location, that is, both during their stay on the high seas or airspace, and in the territorial waters of another state or while parked in a foreign port.
Part 4 of Article 6 of the Criminal Code addresses the issue of criminal liability of diplomatic representatives of foreign States and other citizens who enjoy immunity. These persons are not subject to the jurisdiction of the courts of the Republic of Kazakhstan in criminal cases. The norms of international law governing issues of diplomatic immunity are codified in the Vienna Convention on Diplomatic Relations of 1961.
Diplomatic representatives include: heads of diplomatic missions with the rank of ambassadors, envoys or charge d'affaires and members of the diplomatic staff of the missions - advisers, port representatives and their deputies; military, naval and air force attaches, and their assistants; first, second and third secretaries, attaches and archivist secretaries; and also, family members of the heads and diplomatic staff of the representative offices, if they live with these persons and are not citizens of the Republic of Kazakhstan.
Diplomatic immunity also applies to representatives of foreign states, members of parliamentary and government delegations, as well as, on the basis of reciprocity, to employees of foreign states who come to Kazakhstan to participate in international negotiations, as well as family members of these persons who accompany them and are not citizens of the Republic of Kazakhstan.
Consular officials and diplomatic couriers are inviolable only in the sphere of their official activities.
Diplomatic immunity does not mean the exclusion of criminality and the criminality of persons exercising such a right. The Law establishes that the issue of criminal liability of the named persons is resolved through diplomatic means. According to Article 28 of the Decree of the President of the Republic of Kazakhstan, which has the force of Law, dated June 19, 1995 "On the legal status of foreign citizens in the Republic of Kazakhstan" such persons are expelled from the Republic of Kazakhstan.
In accordance with Part 2 of Article 6 of the Criminal Code of the Republic of Kazakhstan, a crime committed on the territory of the Republic of Kazakhstan is recognized as an act that began or continued, or was completed on the territory of the Republic of Kazakhstan. Thus, at the time of the beginning of the crime, murder committed on the territory of the Republic of Kazakhstan is recognized as the actions of a person who gave the victim a long-acting poison when she was on the territory of the Republic of Kazakhstan, despite the fact that death occurred on the territory of another state. At the time of continuation, for example: a person is engaged in illegal business on the territory of several states, including Kazakhstan. Since such criminal activity continued on the territory of Kazakhstan, the person is subject to criminal liability andaccording to the Criminal Code of the Republic of Kazakhstan, including. Upon completion: a socially dangerous act is recognized as a crime committed on the territory of the Republic of Kazakhstan, which the legislator considers a completed crime from the moment the specified act is performed, regardless of whether the consequences have occurred or not.
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.S.
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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