Commentary on Article 181. Extortion of the Criminal Code of the Republic of Kazakhstan

1. Extortion, that is, demanding the transfer of another person's property or the right to property, or the performance of other acts of a property-related nature, under the threat of using violence or destroying or damaging another person's property, as well as under the threat of disclosing information that disgraces the victim or their close relatives, or other information, the disclosure of which may cause substantial harm to the interests of the victim or their close relatives, — shall be punishable by restriction of liberty for a term of up to three years, or arrest for a term of up to six months, or imprisonment for a term of up to four years, with a fine in the amount of up to one hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of up to three months, or without such fine.

2. Extortion committed:

a) with the use of violence;

b) by a group of persons acting upon prior conspiracy;

c) repeatedly, —

shall be punishable by imprisonment for a term of three to seven years, with or without confiscation of property.

3. Extortion committed:

a) by an organized group;

b) causing grievous harm to the victim's health;

c) for the purpose of obtaining property on a large scale;

d) by a person who has previously been convicted two or more times for theft or extortion, —

shall be punishable by imprisonment for a term of seven to fifteen years, with confiscation of property.

The public danger of extortion is expressed in the violation of the right to property, as a result of which material damage is caused to the victim, while there is a real and actual threat of using violence, destroying or damaging their property, as well as a threat of disclosing information that disgraces the victim or their close relatives (by means of blackmail).

The object of this crime should be recognized as not only property, but also the person of the victim (their inviolability, freedom, honor and dignity). The structure of the object also includes property interests secured not only by the right of ownership, but in certain cases also by the law of obligations: renunciation of one's share in an inheritance, gratuitous performance in favor of the extortionist of certain acts of a property-related nature.

The subject matter of extortion includes: another person's property (things, money, including foreign currency, securities, materialized results of creative intellectual activity, company names, trademarks and other means of individualizing products); the right to property (a will, insurance policy, receipt, contract, power of attorney to receive certain valuables, various types of securities and other documents granting the right to receive property), or the performance of other acts of a property-related nature (services of a non-equivalent nature, for example, allegedly for “protection of premises,” for “assistance” in the sale of products, destruction of a debt receipt, waiver of a debt in jointly owned property, reduction of interest rates, performance of certain works, etc.).

An analysis of the objective aspect of the crime provided for in Article 181 of the Criminal Code indicates that the act of criminal conduct in extortion is of a complex nature: it consists of interrelated independent actions — demanding the transfer of another person's property or the right to property and making threats, the content of which is defined by law. Namely:

1) a threat to use violence;

2) a threat to destroy or damage another person's property;

3) a threat to disclose information that disgraces the victim or their close relatives, or other information, the disclosure of which may cause substantial harm to the interests of the victim or their close relatives.

When qualifying the actions of a guilty person as extortion, the specific type of threat provided for in the disposition of the law must be established, bearing in mind that the person threatened by the extortionist may be either the owner or the person in whose possession or under whose protection the property is located, as well as their close relatives. The form in which the threat is expressed is irrelevant for the qualification of extortion (oral or written, expressed personally or through an intermediary, formulated openly or in a veiled manner); however, its content must be perceived by the victim unambiguously in accordance with its actual meaning. For the qualification of the extortionist's actions, it is immaterial who may carry out the threat: the extortionist themselves or their accomplices.

The Normative Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in Cases of Extortion” dated June 23, 2006, states that a threat to use violence in extortion should be understood as actions expressing an intention to exert coercive psychological pressure (a threat to take someone's life, cause grievous, moderate or minor harm to health, commit rape or other violent acts).

The threat must be real and actual, that is, it must be perceived by the victim as entirely feasible. Only such a threat is capable of exerting a certain psychological influence on the victim for the purpose of making them perform actions in favor of the guilty person.

The distinctive feature of a threat to use violence is that it is generally directed toward the future, that is, the extortionist expresses an intention to actually use violence only after some time, if the victim fails to comply with the demand to transfer the property. In the event that the victim refuses to satisfy the property-related demand, a danger of harm to the aforementioned personal interests actually arises, and in certain cases they are directly violated following the victim's refusal to transfer or provide what is demanded. Therefore, under the specified circumstances, the harm falls outside the elements of extortion and constitutes an element of another independent crime committed as revenge for the refusal to satisfy the extortionist's demands, for example, it may constitute the element of murder, etc.

The actions of a guilty person who has committed extortion accompanied by the intentional infliction of grievous harm to the victim's health under aggravating circumstances or by murder must be qualified cumulatively under Part 2 or Part 3 of Article 103 of the Criminal Code and Article 181 of the Criminal Code, or under Article 96 of the Criminal Code and Article 181 of the Criminal Code.

In order to qualify the actions of the guilty person as extortion, the property-related demands made under threat to the victim must be clearly unlawful in nature. Therefore, there are no elements of extortion if a person, by making threats, demands the fulfillment of lawful property claims. Under certain circumstances, such actions fall under the elements of arbitrariness, Article 327 of the Criminal Code, since the guilty person believes that they are taking actions to exercise their actual or alleged right.

Extortion committed under the threat of destroying or damaging another person's property should be understood as a threat which, if carried out, results in the property either ceasing to exist altogether or being rendered completely unusable (destruction). In the case of damage, the property is subject to repair or restoration. A threat to destroy or damage property may be used by the extortionist to force the victim to transfer property or a property right. If the extortionist subsequently carries out the threat and destroys the property, the act must be considered as constituting a combination of two crimes: extortion (Article 181 of the Criminal Code) and intentional destruction of or damage to another person's property (Article 187 of the Criminal Code).

The above-mentioned resolution of the Supreme Court of the Republic of Kazakhstan states that, in the case of extortion committed under the threat of destroying or damaging property, the qualification of the guilty person's actions does not depend on what property is involved (property entrusted to the victim for protection or the victim's own property, movable or immovable property) or by what means the threat will be carried out. In these cases, it should be borne in mind that the threat must be real and capable of exerting an intimidating effect on the victim. If, during the commission of extortion, the victim's property was destroyed or damaged under the circumstances specified in the disposition of Article 187 of the Criminal Code, the actions of the guilty person constitute a combination of the aforementioned crimes.

Under the threat of disclosing information that disgraces the victim or their close relatives, or other information, the disclosure of which may cause substantial harm to the interests of the victim or their close relatives, one should understand a demand for the transfer of another person's property or the right to property, or the performance of other acts of a property-related nature, accompanied by a threat to disclose any information that may harm the honor and dignity of the victim. In this regard, it is irrelevant whether the information, the disclosure of which is threatened in the course of extortion, corresponds to reality. At the same time, it must be borne in mind that the victim seeks to keep this information secret, and the threat of its disclosure is used by the guilty person to force the victim to comply with the demands put forward.

If information of a defamatory or insulting nature has been disclosed about the victim, the act, where there are grounds for doing so, should be qualified cumulatively under Article 181 of the Criminal Code and, respectively, Articles 129 or 130 of the Criminal Code.

Substantial harm may be caused by the disclosure of information that disgraces the victim. When determining substantial harm, both the victim's subjective assessment of the severity of the moral damage caused to them and objective data indicating the degree of the victim's moral and physical suffering as a result of extortion committed under the threat of disclosing defamatory information shall be taken into account.

When determining the infliction of moral suffering, one should be guided by paragraph 3 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated June 21, 2001, No. 3, “On the Application by Courts of Legislation on Compensation for Moral Damage.”

Substantial harm may also be caused by the disclosure of other information which, although not defamatory, is capable of causing substantial harm to the victim, for example, disclosure of a commercial secret resulting in losses to a business, disclosure of the secret of adoption, or information relating to family and private life, etc.

Since the threat of such disclosure must compel the person to unlawfully transfer property or the right to property to the extortionist, the question of what information should be considered defamatory to the victim and what should be understood as other information, the disclosure of which may cause substantial harm to the victim, must be resolved from the perspective of the person in charge of another person's property or responsible for its protection.

Due to the specific structure of the elements of the crime provided for in Article 181 of the Criminal Code, extortion is considered completed at the moment when property-related demands accompanied by the relevant threats are presented to the victim, regardless of whether the guilty person achieved the desired objective, received the demanded property or the right to property, or induced the victim to perform acts of a property-related nature. Thus, Part 1 of Article 181 of the Criminal Code concerns psychological violence used by the extortionist for the purpose of obtaining property, the right to property, or the performance of other acts of a property-related nature.

Of course, extortion may result in actual material damage when the victim, fearing that the threat will be carried out, transfers the demanded property, relinquishes property rights, or performs acts of a property-related nature in favor of the guilty person. Therefore, the criminal acquisition of another person's property does not fall outside the elements of extortion and does not require separate qualification.

Extortion should be distinguished from violent robbery and robbery by assault. When distinguishing extortion from robbery and robbery by assault, it should be borne in mind that, in extortion, the threat to use violence is directed at obtaining property in the future, and not at the moment when the threat is made. If the threat is carried out, the act must be qualified under Article 181 of the Criminal Code and, where grounds exist, under the article providing for liability for the actions committed in carrying out the threat.

Thus, if an extortionist, having actually used violence, simultaneously with demanding the transfer of a certain amount of money in the future, at that very moment also demands the immediate transfer of other property, and the victim complies under the influence of physical violence, such actions constitute a combination of extortion and violent robbery or robbery by assault, depending on the intensity of the violence.

Another sequence of independent criminal actions is also possible: the guilty person commits robbery by assault using violence, is not satisfied with the amount stolen, and resorts to making a demand, accompanied by a threat or violence, for the transfer of an additional amount of money in the future. A change in the sequence of criminal encroachments does not affect their qualification as a combination of independently committed crimes.

If an extortionist, having made a threat, can immediately obtain the demanded property, their actions will nevertheless constitute neither robbery nor robbery by assault. This is the case when the content of the threat is expressed in the destruction or damage of property or in the disclosure of information that disgraces the victim or their close relatives. Such content of the threat, in accordance with the direct provisions of criminal law, initially excludes the presence of the elements of robbery and robbery by assault.

In extortion, the guilty person threatens to use violence not only against the person in whose possession or under whose protection the property is located, but also against their close relatives. In robbery or robbery by assault, when taking possession of property, the guilty person uses violence only against the victim.

The actions of the guilty person should be qualified as extortion, rather than robbery or robbery by assault, if the subject of the criminal encroachment was not property as such, but the right to property or acts of a property-related nature, regardless of whether physical violence was used at the moment the corresponding demand was presented to the victim and whether the demand was satisfied by the latter immediately or not.

Finally, the difference lies in the moment when these crimes are completed: extortion is recognized as a completed act from the moment a demand is made for the transfer of property, the right to property, or the performance of acts of a property-related nature. Robbery by assault is completed from the moment of the attack, while robbery is completed when the property has been seized and the guilty person has a real opportunity to dispose of that property at their own discretion.

The subject of the crime is a physically competent and sane person who has reached the age of 14.

From the subjective aspect, the act is characterized by direct intent and an acquisitive purpose. The guilty person is aware that, having no rights to the property, they demand its transfer while threatening to commit actions that may cause harm to the interests of the victim. The purpose is to obtain property or the right to it.

The qualifying elements of extortion provided for in Part 2 of Article 181 of the Criminal Code are analogous to the elements of theft. They include:

a) with the use of violence;

b) by a group of persons acting upon prior conspiracy (Part 2 of Article 31 of the Criminal Code);

c) repeatedly.

The use of violence in extortion (paragraph “a” of Part 2 of Article 181 of the Criminal Code) implies only physical violence, since psychological violence is an obligatory element of Part 1 of Article 181 of the Criminal Code. Physical violence is a means of forcing the victim to comply with the demands made.

Extortion involving the use of violence should be understood as the commission of this crime involving restriction of liberty, infliction of physical pain, striking, beating, and causing minor or moderate harm to the victim's health.

The elements of extortion provided for in paragraphs “b” and “c” of Part 2 of Article 181 of the Criminal Code are analogous to the elements examined in the analysis of theft.

The application of the element of repetition has certain specific features in the crime provided for in Article 181 of the Criminal Code. Repeated demands for the transfer of property or the right to it, addressed to one or several persons, cannot be considered repeated extortion if these demands are united by a single intent and aimed at taking possession of one and the same property.

The particularly qualifying elements of extortion provided for in Part 3 of Article 181 of the Criminal Code are also analogous to the elements examined in the analysis of Article 179 of the Criminal Code. The legislator includes the following:

a) by an organized group;

b) causing grievous harm to the victim's health;

c) for the purpose of obtaining property on a large scale;

d) by a person who has previously been convicted two or more times for theft or extortion.

The concept of grievous harm to health is provided for in Article 103 of the Criminal Code. In the event that grievous harm to health is caused during extortion, additional qualification under Article 103 of the Criminal Code is not required, since the act is fully covered by paragraph “b” of Part 3 of Article 181 of the Criminal Code.

The actions of a guilty person who has committed extortion accompanied by the intentional infliction of grievous harm to health, which negligently resulted in the victim's death, must be qualified cumulatively under paragraph “b” of Part 3 of Article 181 and Part 3 of Article 103 of the Criminal Code.

The actions of an extortionist who carries out their threat by intentionally causing the victim's death constitute a combination of extortion and murder, since the elements of extortion are considered fulfilled at the moment the corresponding demand accompanied by a threat is presented, while the actions of the extortionist who carried out the threat resulting in death go beyond the elements of extortion and require additional qualification under Article 96 of the Criminal Code.

The Criminal Code of the Republic of Kazakhstan provides for special types of extortion: extortion of radioactive materials (Article 248 of the Criminal Code), weapons, ammunition, explosives and explosive devices (Article 255 of the Criminal Code), narcotic or psychotropic substances (Article 260 of the Criminal Code). When these types of extortion are committed, additional qualification under Article 181 of the Criminal Code is not required.

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

Date of amendment of the act: 02.08.2007

Date of adoption of the act: 02.08.2007

Place of adoption: NONE

Body that adopted the act: 180000000000

Region of application: 100000000000

Registration number of the normative legal act assigned by the law-making body: 167

Status of the act: new

Sphere of legal relations: 028000000000

Form of the act: COMMENTARY

Legal force: 1900

Language of the act: Russian

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