Comment to article 7. The effect of the criminal law on persons who have committed a crime outside the Republic of Kazakhstan The Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Citizens of the Republic of Kazakhstan who have committed a crime outside the Republic of Kazakhstan shall be subject to criminal liability under this Code if the act committed by them is recognized as a crime in the State in whose territory it was committed, and if these persons have not been convicted in that State. Upon conviction of these persons, the punishment may not exceed the upper limit of the sanction provided for by the law of the State in whose territory the crime was committed. Stateless persons are also liable on the same grounds.
2. A criminal record and other criminal consequences of a person committing a crime on the territory of another State have no criminal significance for resolving the issue of criminal liability of this person for a crime committed on the territory of the Republic of Kazakhstan, unless otherwise provided by an international treaty of the Republic of Kazakhstan or if the crime committed on the territory of another state did not affect the interests of the Republic of Kazakhstan..
3. Military personnel of military units of the Republic of Kazakhstan stationed outside its borders, for crimes committed on the territory of a foreign state, are criminally liable under this Code, unless otherwise provided by an international treaty of the Republic of Kazakhstan.
4. Foreigners who have committed a crime outside the Republic of Kazakhstan are subject to criminal liability under this Code in cases where the crime is directed against the interests of the Republic of Kazakhstan, and in cases provided for by an international treaty of the Republic of Kazakhstan, if they have not been convicted in another state and are prosecuted in the territory of the Republic of Kazakhstan.
The norms that embody the territorial principle of the criminal law in space do not regulate the issue of responsibility of citizens of the Republic of Kazakhstan and stateless persons permanently residing in the Republic of Kazakhstan for crimes committed by them outside the Republic of Kazakhstan. Therefore, in addition to the territorial principle, the Criminal Code establishes the principle of citizenship.
The regulation of the principle of citizenship in the Criminal Code of the Republic of Kazakhstan is brought into line with international legal acts. Previously, the rules in force made it possible to re-convict a citizen of the Republic of Kazakhstan or a stateless person for crimes committed by them on the territory of another state. So, part 3 of art. 5 of the Criminal Code Kaz. The SSR stated: "If the named persons (meaning citizens of the Kazakh SSR, other Union republics, and stateless persons) are my italics. B.) for the crimes committed, they have been punished abroad, the court may accordingly mitigate the punishment imposed on them or completely release the perpetrator from serving the sentence."
The principle of citizenship is the basis of the criminal law in relation to persons who have committed a crime outside the Republic of Kazakhstan. In accordance with Part 1 of Article 7 of the Criminal Code of the Republic of Kazakhstan, citizens of the Republic of Kazakhstan who have committed a crime outside the Republic of Kazakhstan are subject to criminal liability under this Code if the act they committed is recognized as a crime in the State in whose territory it was committed and if these persons have not been convicted in another state. Upon conviction of these persons, the punishment may not exceed the upper limit of the sanction provided for by the law of the State in whose territory the crime was committed. Stateless persons are also liable on the same grounds.
In accordance with Article 3 of the Law of the Republic of Kazakhstan "On Citizenship of the Republic of Kazakhstan" dated December 20, 1991 (as amended and supplemented), citizens of the Republic of Kazakhstan are persons who: permanently reside in the Republic of Kazakhstan on the date of entry into force of this Law; acquired citizenship of the Republic of Kazakhstan in accordance with this Law. Article 6 of the same Law states: "Persons who are located on the territory of the Republic of Kazakhstan and are not its citizens enjoy all rights and freedoms, as well as bear all duties established by the Constitution, laws and interstate treaties of the Republic of Kazakhstan ...". Stateless persons are recognized as persons who do not have evidence of belonging to the citizenship of any State.
Foreign citizens are persons who have citizenship (citizenship) of a foreign state and do not have citizenship of the Republic of Kazakhstan.
Part 2 of Article 7 of the Criminal Code defines that a criminal record and other criminal consequences of a person committing a crime on the territory of another State have no criminal significance for resolving the issue of criminal liability of this person for a crime committed on the territory of the Republic of Kazakhstan, unless otherwise provided by an international treaty of the Republic of Kazakhstan, or if committed on the territory of another State The crime did not affect the interests of the Republic of Kazakhstan. This means that, with the exception of the two points specified in the law, when a crime committed on the territory of another state is taken into account when convicting this person for a crime committed on the territory of the Republic of Kazakhstan, in all other cases, it does not entail criminal consequences, that is, it does not affect the decision on plurality, on parole., is not taken into account when assigning punishment.
So, O., who was convicted of embezzlement in Russia, after serving his sentence, came to his relatives in Karaganda, where he committed another robbery. O.'s actions cannot be qualified on the basis of repetition, and the punishment should be more severe, given his criminal record in Russia. However, if the interests of Kazakhstan were harmed when committing a crime in Russia, such a criminal record will be taken into account.
The norm in question establishes a protective principle or the principle of a special regime," believes Yu.M. Tkachevsky. In Part 3 of Article 7 of the Criminal Code, the legislator regulates the issues of bringing to criminal responsibility military personnel of military units of the Republic of Kazakhstan stationed outside its borders for crimes committed on the territory of a foreign state. They are liable under the Criminal Code of the Republic of Kazakhstan, unless otherwise provided by an international treaty of the Republic of Kazakhstan.
To regulate the issues of the operation of criminal law in the space of the Criminal Code of the Republic of Kazakhstan, along with the territorial principle and the principle of citizenship, it provides for two more principles: universal and real.
Universal jurisdiction was initially intended as a complement to the two basic principles of territoriality and citizenship, but later began to act as an independent principle of the operation of criminal law in space. This is due to the increased coordination of actions of many States in the fight against crime. The crimes provided for in international conventions must be suppressed by the participating States, regardless of the place of their commission and the nationality of the person who committed the crime.
The essence of the universal principle of operation of the criminal law in space is expressed in Part 4 of Article 7 of the Criminal Code, according to which foreigners who have committed a crime outside the Republic of Kazakhstan are subject to criminal liability under this Code in cases provided for by international treaties of the Republic of Kazakhstan, if they have not been convicted in another state and are prosecuted in the territory of the Republic of Kazakhstan. This provision allows the application of Kazakhstan's criminal legislation to a perpetrator who commits an international crime or an international crime, which is combated on the basis of international conventions. Such crimes include: manufacture or sale of counterfeit money or securities (Article 206 of the Criminal Code); hostage-taking (Article 234 of the Criminal Code); terrorism (Article 233 of the Criminal Code); genocide (Article 160 of the Criminal Code); piracy (Article 240 of the Criminal Code), as well as crimes related to narcotic drugs, etc. The principle of operation of the criminal law in space is also fixed in ch. 4 art. 7 of the Criminal Code. The essence of this principle is that foreigners who have committed a crime outside the Republic of Kazakhstan are subject to criminal liability under this Code in cases where the crime is directed against the interests of the Republic of Kazakhstan and if they have not been convicted in a foreign country and are prosecuted in the territory of the Republic of Kazakhstan.
Foreigners who find themselves in the Republic of Kazakhstan after committing a crime on the territory of another State that is not provided for by international treaties and does not affect the interests of Kazakhstan are not subject to criminal liability. However, by virtue of an international treaty, they may be extradited to another State in whose territory the crime was committed or against whose interests it was directed, or to the State of which they are citizens. In conclusion, I would like to note that in accordance with paragraph 4 of art. 12 of the Constitution of the Republic of Kazakhstan, foreigners and stateless persons enjoy the rights and freedoms in the Republic, as well as bear the duties established for citizens, unless otherwise provided by the Constitution, laws and international treaties.
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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